delict, each having its own requirements and test. Aaida Peerani is a former Staff Lawyer and former Editor for LawNow Magazine at the Centre for Public Legal Education Alberta. But how is such breach to be measured? What, then, is the nature of the reasonable person? As such, Donoghue v Stevenson (and subsequent cases) have held defendants to the standard of the reasonable man. On the other hand, if cricket balls were being regularly hit out of the ground this would constitute negligence by the defendant as it was reasonably foreseeable that this may lead to serious injury see Miller v Jackson [1977] and Castle v St Augustine’ Links [1922] where this was the result. Characteristics of a reasonable person standard include: Judges make many assessments to determine the reasonableness of the behaviour in question and whether the defendant was negligent. The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. This must be the case, for if it were not, then the law would be “co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual” resulting in “so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various” (Vaughan v. Menlove; (1837), 3 Bing. The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. In this case, an individual of “lower intelligence” (as noted in the case) built a shoddy haystack too close to the plaintiff’s land. !. However, because the power company placed the wires above ground and removed the tree branches, the court found that the power company took adequate precaution. ‘Notice of Proposed Application in Relation to Estate’ – What’s that!? 781, at pg 784). The court determined that the police officer was not liable for the death of the pedestrians, because he was empowered to take certain risks in his line of duty. It refers to a theoretical person in the society who shows average judgment, skill or care in his or her conduct. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. In UCTA the person relying on an exclusion clause has to prove that it is reasonable.Whilst the reasonableness test gives the courts the flexibility necessary to adapt to the huge variety of exemption clauses, it means that the uncertainty faced by contractors prior to 1977 still remains. For example, a lawyer will be held to the standard of a reasonably competent lawyer (Central Trust Co. v. Rafuse, [1986] 2 SCR 147) and police officers are held to the standard of a reasonable police officer (Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129). Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. When judges or juries are asked to assess the risk that a reasonable person would have foreseen at the time of an accident and how s/he should have acted, they are already aware that the defendant’s assessments may have been inadequate. Psychological studies have shown that people tend to overstate the predictability of past events (Irwin at 42). Civil or criminal cases involving negligenceuse the reasonable person standard as the basis for comparison when deciding issues of liability. The defendant was warned that the haystack was poorly constructed, but ignored this advice. The law strikes a balance between providing compensation where a failure has been particularly egregious, and where a genuine accident has occurred. The Reasonable Person Standard To determine whether a defendant breached his duty of care in a negligence case, a court will compare the defendant’s conduct to the conduct that we would expect from a ‘reasonable person.’ You might hear the reasonable person called … Where the harm has occurred unintentionally or due to carelessness, the court will apply the reasonable person standard. The existence of reasonable and probable grounds is a question of law (Shepherd at paragraph 20), which the Crown bears the onus of proving (e.g., where an officer demands that an accused submit to a breathalyser test) (Shepherd at paragraph 16). Unfortunately, the haystack spontaneously combusted and destroyed some of the plaintiff’s property.The court reje… "Reasonable person" is a legal expression used in both criminal and tort law. Although this case utilized objective elements in assessing adequate provo- For example, unreasonableness will mean different things for “children, those with mental disabilities, and for professional people” (Linden, pg 119). His conduct is the standard ‘adopted in the community by persons of ordinary intelligence and prudence’” (Arland, pg 142). For example, in Priestman v. Colangelo, [1959] SCR 615, a police officer who was involved in a high speed chase was sued for shooting the suspect. Courts consider the cost of preventing a liability in determining negligence. When shot, the suspect was rendered unconscious and his car hopped onto a curb and killed two pedestrians. The purpose of the reasonable person test is to give the jury a concrete, uniform standard when they’re looking at the actions of each party in a case. "Britain's proverbial reasonable person", wrote Justice Schwelb of the expression, the man on the Clapham bus in the 1988 decision Thompson v US. Everyone is held up to the reasonable person standard, including the victim. A specific standard of care is applied to a person with a physical disability. The expression is sometimes stated as the man on Clapman omnibus.. The reasonable person is not an actual person, but rather an imagined individual whose conduct lives up to the standard of care: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” (Blyth v. Birmingham Water Works Co. (1856), 11 Ex. Yet, conduct will be negligent where it “creates an objectively unreasonable risk of harm” (Ryan v. Victoria (City) [1999] 1 S.C.R. However, even this exception is limited. One way that subjectivity may be introduced in the justice system is through judges. www.cplea.ca, According to the Supreme Court of Canada (SCC), “what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. The case under consideration falls under delict, and the five elements referred to above must be established by the appellant to succeed in her claim. Presumption of Integrity In former Justice Camp’s case, however, a disciplinary panel found that his comments deserved dismissal and he subsequently resigned. No consideration is given to the defendant’s thought process or personal awareness of danger. The standard requires one to act with the same degree of care, knowledge, experience, fair-mindedness, and awareness of the law that the community would expect of a hypothetical reasonable person. Sometimes, a judge’s preconceived notions can result in errant subjectivity. The “reasonable person” standard is an objective test in personal injury cases that jurors use to determine if a defendant acted like other people would have in the same situation. Define what could be legally required of a reasonableperson to maintain safety for visitors to a play space This decision highlights the need to balance the likelihood of damage with the consideration of cost measures needed to reduce or neutralize the risk. The reasonable person standard is a test used to define the legal duty to protect one's own interest and that of others. Breach of duty in negligence liability is decided by the objective test ie the defendant is expected to meet the standard of a reasonable person: Vaughan v Menlove (1837) 3 Bing. A two-stage test is applied to children in the rare cases that they are sued for negligence. Category: Articles, Featured, Medical Malpractice, Negligence Law Articles, Personal Injury, Wills, Estates and Succession Act (“WESA”), Damages in Negligence for Personal Injury: Loss of Earning Capacity, A Notice to All Couriers, Servers, and Suppliers, Lessons for Contractors and Small Business Owners During a Downturn. A phrase frequently used in tort and Criminal Law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability. ⇒ See the cases of Blyth v Birmingham Waterworks Co (1856), Glasgow Corporation v Muir [1943], and McFarlane v Tayside Health Board [1999] ⇒ A subjective element → although the 'reasonable person' aspect of the test is objective, there is also a subjective element in … The defendant was warned that the haystack was poorly constructed, but ignored this advice. •Part of the reasonable person test involves foreseeability—a person’s ability to anticipate the specific result of an action. The test as to whether a person has acted as a reasonable person is an objective one, and so it doesn't take into account the specific abilities of a defendant. In Moule v. New Brunswick Electric Power Commission, (1960) 24 DLR (2d) 305 (SCC), the defendant power company removed branches of trees to be able to install high voltage wires on telephone poles in a wooded neighbourhood. They are expected to act according to the same standard as a reasonable professional in their field. Those with superior skill and knowledge, such as doctors, lawyers, architects, engineers and police officers, are held to a higher standard taking into account their expertise. Since they hold themselves out as having additional skills and experience, more may be demanded of professionals (Linden, pg 149). No court has argued that external standards entirely displace the reasonable person test. As regulator of most activities in modern society, negligence is the most important field of tort liability (Canadian Tort Law, by Allen Linden, 2001, pg 101) (“Linden”) and includes claims related to medical malpractice, personal injury, product liability and professional negligence. In a highly publicized sexual assault case, former Justice Robin Camp made comments that implied that the sexual assault could have been prevented by the victim and advocated other rape myths. Even though the reasonable person test represents an objective standard, it may be applied variously in the sense that “the measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury” (Ryan, para 28). N.C. 467 Case summary In doing so, the court held: “The defendant should not be held guilty of negligence for not having foreseen the possibility of the occurrence of such an unlikely event as happened in this case and provided against it by the removal of the maple tree.”. For example, the standard applies if a person is blind, deaf or a paraplegic. Therefore the likelihood of harm was not foreseeable by a reasonable person. According to the Supreme Court of Canada (SCC), “what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. I shall deal firstly with the requirement of wrongfulness. Where the harm has occurred unintentionally or due to carelessness, the court will apply the reasonable person standard. : a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something (as the existence of negligence) we have generally held that a reasonable person would not believe that he or she has been seized when an officer merely … The standard does not apply if a person is short-sighted, poorly co-ordinated, slow, elderly, or arthritic. Still, in a world where rights and wrongs swim in a sea of greys, the reasonable person standard is the best we have to balance consistency in the law with the nuances of life. The court found that the cricket club did not breach the reasonable person standard because the risk of damage was so small. In law, a reasonable person, reasonable man, or the man on the Clapham omnibus is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.. Thus, a relaxed standard has been applied to cases involving the alleged negligence of children, whereas a higher standard is applied to those with superior knowledge, such as lawyers and doctors. Having additional skills and experience, more may be introduced in the justice system attempts to address issues of subjectivity... Psychological studies have shown that people tend to overstate the predictability of past events ( Irwin at 42.. 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