The standard of the reasonable person in determining negligence – comparative conclusions

The standard of the reasonable person or its equivalent, in general, is used in many jurisdictions to determine fault in the form of negligence. Although the standard is predominantly objective it is also subjective in that the subjective attributes of the person against whom the standard applies as well as the subjective circumstances present at the time of the delict or tort lend themselves to an objective-subjective application. In South African law, before a person can be judged according to the standard of the reasonable person, the person must first be held accountable. If a person cannot be held accountable, then the standard does not apply at all. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments or experts. Therefore, depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly. The general standard of the reasonable person would be raised when dealing with experts, for instance, and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons with physical disabilities and so on. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments as well as experts. Thus depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly or if the person cannot be held accountable, not applied at all. The general standard of the reasonable person would for example be raised when dealing with experts and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally, to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons' with physical disabilities and so on. [1] In French law bonus pater familias as three separate words is encountered (see para 3.4 below) whereas in South African law, bonus paterfamilias, as two separate words is encountered (see for example, Neethling and Potgieter Law of Delict 142-143). In this contribution, for the sake of uniformity and convenience, bonus pater familias as three separate words will be used.