Reasonable Person Lecture
o What's the problem with applying the concept of reasonable person
o Standards are all diff; somehow come up with a 'personal' standard; bias
We need this standard
o Derived from a Latin word Tortus meaning a 'wrong'
o A wrong committed by one person against another, or against the person's property or
reputation either intentionally or unintentionally
o Lots of things we want to do in society (try out a new car) but yet it's unsafe to do
so (driving 200 km/h) so you have a lot of harm done to society.
o Court recognizes individuals have a lot of freedom/ rights.
Courts try to balance individual freedom with safety of society.
o Also covers cases where a person causing an injury has no lawful right to do so
o No precise definition - a civil wrong
o Most of our criminal law was once tort law
o Dates back to a time when courts first saw the need to remedy a wrong
o Courts - balance: Individual Freedom vs. Injury
Negligent Law Suit
Vaughan v Menlove (1837) -> significance (first time the courts articulated the concept of a
o English tort law case - concept of the reasonable person is elaborated for the first time
o Mr. Menlove build a haystack near his neighbors (Mr. Vaughan's) property
o Mr. Menlove was aware that the haystack wasn't property build
His neighbors told him he did it wrong.
o Because he didn't built it the right way; lightning hit the haystack and the fire
started (cause the metal piece in the middle wasn't there)
o Two of Mr. Vaughan's cottages were destroyed in a fire
The jury in the trial had to decide whether Mr. Menlove "proceeded with such reasonable
caution as a prudent man would have exercised under such circumstances"
o Lightning is still considered 'act of god'
o Technically manlove was like "I didn’t burn down your cottages; why should I be
Vaughan = the fault is on you.
o Courts had to decide can't just make decisions on who does what; have to decide
who is a prudent man and did he act with a reasonable act of caution?
o If you do something wrong and are told you are doing wrong then it's like a triple charge.
If someone tripped over the stairs and someone fell and suffer injury and it's resolved;
but if movie theatres don't do anything (add special lighting) and someone falls again then
they're liable for more damages.
o Negligence, reasonability, and foreseeability. Duty of care: responsibility -> was his
responsibility for people around him.
Was used in negligent cases
Duty of Care/ Rights duty relationship o Referred to as the right-duty relationship in tort law
o The duty not to injure must be owed to the party who suffers the injury
o The injured party must have a legal right that has been violated by the act or omission of
o How do you decide if someone's responsible for you injury or is it just bad luck?
o Did the person who injured you owe you a duty of care?
Duty of Care is confusing; Good Samaritan Law
o If someone is in an accident and their spine is dislocated and you try to move them and
they get paralyzed you're liable for it
o We're not liable for duty of care for people on the street
o The more experienced you are the more liable you are for this
Criminal law; whoever hurt you meant to do it
Plumber didn't really mean for the pipe to explode and injure the person
The concept of Foreseeability
o Foreseeability as an element of tory liability was a difficult concept for the courts to apply
o A standard that has to be determined before damages for an unintentional act could be
Who is this reasonable person?
o The courts seized upon a mythical person - 'the reasonable person' as a standard
Courts measured the actions of the negligent person against what might be the actions
of the reasonable person in the same situation
o The reasonable person was presumed to possess normal intelligence and would
exercise reasonable care in their actions towards others
o Problems with this
o Biases; your own experience of what a reasonable person is
o People are found liable in negligence more often for their acts than omissions
Rarely does a person have a legal duty to act positively, rather duty is defined as a duty
to refrain from acting negatively
o No 'mens rea' -- a guilty state of mind or intention to commit a wrong is necessary
o Rarely does a person have a 'legal duty' to do something
Tort Liability and the Reasonable Person
o Would a reasonable person in similar circumstances have foreseen the injury to the
plaintiff as a consequence of their action?
o Yes: defendant at fault
o No: defendant blameless
o 'The reasonable person test' allows the courts flexibility and can change with the society
o Butler case
o Facebook; anything you put on fb can be used against you
o Who is the 'reasonable