The ‘Reasonable Tort Victim’: Contributory negligence, standard of care and the ‘equivalence theory’

The common law presumes, and Australian civil liability statutes dictate, that the reasonableperson test is applied consistently, or equivalently, irrespective of whether the questionis posed with respect to plaintiffs (for the purposes of determining contributory negligence)or defendants (for the purposes of determining liability in negligence). The reasonable persontest is said to be purely objective. This article considers when it is necessary and, if so,appropriate, to modify the legal standard of care by imbuing the reasonable person withcertain personal characteristics (whether that standard is applied to plaintiffs or defendants),and rejects the view that the reasonable person standard should always be appliedequivalently (or uniformly) to defendants and plaintiffs. Instead, this article argues that, insome circumstances, it is appropriate that the personal characteristics of plaintiffs are takeninto account to lower the requisite standard of care. Indeed, courts have used a variety ofmechanisms to make such allowance in circumstances in which the same allowance wouldnot be made for defendants.