10 c the reasonable person the required standard of

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(c) The ‘reasonable person’ The required standard of care (reasonable care) is determined by reference to the standard of the ‘reasonable person’. What qualities of the actual defendant are taken into account in determining what the ‘reasonable person’ would or would not have done in the particular circumstances of the case? (i) Should the standard be subjective or objective? The defendant’s conduct is judged according to the standard of care that a person of ordinary prudence would exercise in the circumstances - Vaughan v Menlove (1837) 3 Bing (NC) 468; 132 ER 490 (referred CB 252) The test requires that the reasonable person be in the D’s position. Therefore to what extent are the D’s characteristics ascribed to the reasonable person. CL position is to ascribe some circumstances and not others. In all cases there will be disadvantage to one party. There can be no “fair” outcome. Why?: There are strong arguments both ways. Learner driver eg. Should the defendant’s characteristics be considered? Yes: we cannot assess what could reasonably be expected of the defendant without considering her characteristics No: fairness requires that everyone be held to a common standard (ii) Minority No blanket rule preventing a child from being sued in negligence. McHale v Watson (1966) 115 CLR 199 (CB 252) FACTS: D is 12. D was throwing a steel rod wooden post, the rod deflected off the post and hit P. The majority held that where the D is under 18 age is taken into account, a reasonable person of whatever age the child is, is used. Should the particular child’s foresight and experience be taken into account? (No majority) Kitto J: no Owen J: yes (iii) Disability No HC decision. The position is unclear. It will not matter because the person will be liable for undertaking the activity in the first place Eg: Blind person driving a car etc. This will not be the case when the P had no choice. In the case of no choice (uncontrolled fainting) most likely will be taken into account. 11
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(iv) Mental Incapacity Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 (CB 256) FACTS: Person thought they where being chased and ran down P. Court said it would be unfair not to award damages just because the person was injured by someone with a mental illness rather than a regular person. Mental illnesses are not taken into account. No defense of mental illness. If P knows about the mental illness then the D may be able to have it taken into account ---- ***There is a tension between Adamson and McHale. The difference illustrates the problems in balancing fairness to both parties (v) Inexperience / Modified Duty [Consensual Relationships] Generally not taken into account. A trainee doctor and an experienced doctor are held to the same standard.
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