On February 9, 2017, Professor Mayo Moran, Provost and Vice-Chancellor of Trinity College at the University of Toronto and past Dean of Law at the University of Toronto, gave the first Tort Law Research Group public lecture of the 2016-17 academic year to an audience of students and faculty. Her talk, entitled “Rethinking the Reasonable Person” (also the title of her 2003 book published by Oxford University Press), offered a challenge to the purported fairness and objectivity of tort law’s reasonable person standard and counselled its rejection in favour of a more robust standard of moral fault.
Case law describes the character of the reasonable person as “the man who mows the lawn in his shirtsleeves,” one who is “rather better than most of us,” and who is “so moderate and reasonable that when he flogs his own children, he is meditating on the golden mean.” In the story of tort law, this character performs a “culpability determining function.” This is to say that to determine whether a defendant is at fault, we ask whether what s/he did was what a reasonable person would do. If so, then the defendant behaved reasonably and is not liable. If not, the defendant has fallen below the legal standard set by the reasonable person and is the proper object of tort liability.
What could be wrong with such an exemplar of reasonableness, with such an objective means to ascertaining fault? According to Professor Moran, the reasonable person standard does not clarify, but rather obscures a principal focus of the tort of negligence: identifying at-fault behaviour. We must remain critical of when and why certain qualities of the actual litigant are taken into account in the standard’s construction. Why is it, Professor Moran queried, that we take into account the age of a defendant, but not his or her level of intelligence? It seems unfair, she argued, that a person of extremely low intelligence – that is, someone with an intellectual disability – would be found liable for a tort that they were fundamentally not smart enough to avoid committing. Such an individual is not the appropriate object of moral blame and censure. Objective fault in negligence does not track moral blameworthiness, and, for Moran, this is a problem.
A consequence of the lack of equivalence between negligence’s fault standard and moral fault is that we look to what is ordinary or customary as our objective source of what is reasonable. This (new) objective standard of fault, Moran suggested, has caused problems, especially with respect to gender. The 1966 Australian case, McHale v Watson, provides a particularly striking and shocking example of the legal entrenchment of gender stereotypes. Here, a twelve-year-old boy threw a sharpened metal rod not at, but in the direction of, a young female plaintiff. It caught her in the eye, resulting in permanent blindness. The essence of the majority judgment of the High Court of Australia was that “boys will be boys” and that since the defendant behaved as a normal boy of his age would, he should not be liable.
Professor Moran concluded that it is important to question the built-in assumptions surrounding the objectivity of the reasonable person standard in negligence. The objectivity of the standard does not come from morality – and we see this in the way people with intellectual disabilities are treated – but instead derives from stereotypes about how ordinary men and women, boys and girls, normally behave. In closing, she encouraged her audience to consider rejecting our current reasonable person standard in favour of a standard that better aligned with moral fault.
The Tort Law Research Group’s public lecture series is generously sponsored by Legate and Associates LLP, a firm that uses a client-centred team approach focused on getting to know each client and assuring that he or she feels empowered. Founding lawyer Barbara Legate, a graduate of Western Law, has argued significant cases in a wide variety of situations, from administrative tribunals to the Ontario Court of Appeal. In both 2014 and 2010, Barbara was recognized by Best Lawyers in Canada as Lawyer of the Year in Personal Injury in London and Windsor.