The standard of care in negligence: the elderly defendant with dementia in Australia

To date, there are no reported cases addressing negligent acts or omissions committed by an elderly defendant with dementia. Demographic and epidemiological data indicate that it is a question of when, rather than if, the courts encounter a defendant with these characteristics. This paper seeks to explore the options open to the courts in dealing with such a defendant, by examining the modifications considered to the objective'reasonable person'test to determine the appropriate standard of care, including defendants with mental illness, physical incapacity, and child defendants, each of which class of defendant bears similarities to an elderly defendant with dementia. The paper argues that while extending the existing law relating to the liability of mentally ill defendants may prima facie appear to be an attractive option, it is an area of law which is overdue for reform in and of itself, and extending it to apply to elderly defendants with dementia should be resisted.