Why the ‘Reasonable Person’ Test INFURIATES Me


Law students: argue that YOU are a reasonable person. I implore you – use yourself as a standard of reasonableness when you consider that problem question, analyse that judgement. Let me explain why…


The reasonable person standard makes me so mad. Madder than a Hatter in Wonderland during a tea shortage. Because, the ‘reasonable person’ that the courts gallop out as the standard for all conduct in society, is not the ordinary or common person. The ‘reasonable person’ embodies what the people making the judgements, on average, believe in their collective accumulated life experience to be reasonable. But those people are, by no measure, a representation of the ordinary. 


It was brought into commonwealth law by Menlovewhere the defendant’s counsel argued that he was too stupid to be held liable for burning down his own and his neighbour’s cottages and buildings, because he acted to the best of his (unintelligent) ability. The court though, in holding the defendant liable, articulated that he would be held to the standard of ‘a man of ordinary prudence’. The bench in Menlove looked like this:



Basically, the same guy in different wigs. 


And, for the next hundred years or so, the test was referred to as the ‘reasonable man test’, which is close to what it was: a test against the education and life experience of the average sitting English Law Lord. That is to say, a reasonableness which excluded the life experience of any woman, person of colour, non-heterosexual, or person of wealth.


The justification for the test, particularly in torts/delict, is that it would be too difficult and resource intensive for courts to assess what any individual plaintiff may have done in a bona fide effort to act reasonably. In fact, though, all this served to do was relieve their honours of making any effort to comprehend or validate the experience of anyone unlike themselves.


It is argued that it is not fair for a plaintiff’s remedy for the liability of the defendant to be measured by the prudence of the defendant. After all, do you not suffer the same loss, whether your house is burned down by an educated man or an uneducated one?


Yes, but not the same injustice. Tortious or delictual liability do not exist to remedy instances of bad luck in life that happen to be linked to the bad luck of another. They exist to remedy injuries where the harm is the fault or another, where they acted with injustice towards you in failing to prevent it.


So why does all this mean you should use yourself as a reasonable person, and not the person constructed by thousands of precedents? 
Because you are part of the solution. The average law student cohort is far more representative than the average court bench. Sure, law school is still in many ways a place for the privileged. But you are likely to have been exposed to more diversity in your fewer years than many high court judges in their many (statistically, more than sixty) years.


So use yourself, and your experience to question the reasonable person test you see laid out in your text books and case readings. Ask yourself if the ordinary person, who is more than likely to not be a white, financially secure, highly educated, masculine, straight, non-disabled man, would really believe that the interpretation of reasonableness in front of you is the only one. Or, if to believe such a fiction is completely unreasonable.


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