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The reasonable person test is a benchmark of behaviour for determining whether something is reasonable or not. The reasonable person test can apply in many different areas of law, for example, employment law, contract law, and torts law – to name a few.

Using the reasonable person test to assess standards of behaviour is helpful because it assists with objectivity. Without objectivity, standards of behaviour may differ too much because what one person considers to be ‘reasonable’ may be ‘unreasonable’ to another person.

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Who is the reasonable person?

The reasonable person refers to a hypothetical person who demonstrates average judgment or skill. The reasonable person has various generalised attributes including risk aversion, sound judgment, and a sense of self-preservation, which prevents them from walking blindly into danger.

The reasonable person is pure legal fiction. It was crafted by judges to represent the concept of the Common Law and used as a tool to standardise the application of the law.

The reasonable person is not an average person or a typical person, and the average person is not necessarily guaranteed to always be reasonable.

The concept of the reasonable person test began in the old English law. It was first used in a civil lawsuit in 1837 where the defendant had stacked hay on his rental property in a manner prone to spontaneous ignition. This was despite being repeatedly warned about the danger over the course of five weeks. The defendant did nothing, the hay ignited and burned the defendant’s barns and stable and then spread to the landlord’s two cottages on the adjacent property.

The landlord sued the defendant and the court applied the reasonable person test. In applying the test, the Court found that the defendant may have not appreciated the risk as a reasonable person would have. Because the defendant failed to meet the reasonable person test, he was found liable and had to pay damages.

The reasonable person test

Why is the test used in law?

The reasonable person test can be found applied in many areas of the law.

The reasonable person test can be used to determine negligence in both criminal law and tort law. The reasonable person test is also used in contract law, to determine contractual intent, or if there has been a breach of the standard of care.

The reasonable person test is used when it is necessary for decision-makers to have regard for an objective standard when determining what led to a common set of facts or making an important decision

The reasonable person represents a composite of a relevant community’s judgment, as to how a reasonable member of the community should behave in particular situations.

Is the test objective or subjective?

The reasonable person test is said to be purely objective.

In the previously mentioned civil lawsuit in 1837, the defendant’s lawyer admitted that his client’s “misfortune of not possessing the highest order of intelligence”. The lawyer argued that the defendant should only be found negligent if the jury decided that the defendant had not acted bona fide and to the best of his own judgment.

The Court disagreed. It said that such a standard would be too subjective, instead preferring to set an objective standard for deciding cases:

“The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question. Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. That was, in substance, the criterion presented to the jury in this case and, therefore, the present rule must be discharged”

It can be difficult to apply the reasonable person test without relying on personal bias or personal standards of behaviour. To what extent can an objective, reasonable person standard be personalised in light of that person’s characteristics before that standard becomes a subjective one?

The standard only becomes subjective if we ask the reasonable person to depart from the underlying standard of ‘reasonableness’. There is nothing illogical about asking, for example, ‘what would a reasonable person with the mental capacity of a 5-year-old do?’, assuming that appropriate measures can be identified and applied.

How can the reasonable person test be used in business?

The reasonable person test is a legal standard. However, because it represents community standards of behaviour, it is also a helpful benchmark to use to make good business decisions.

The reasonable person test

In an age of ethical consumerism, it is important to ensure that business decisions are made in a way that would not lead to a boycott of a business’s goods or services.

How can Prosper Law help?

Prosper Law is one of Australia’s best online commercial law firms. We are experienced in helping Australian businesses to solve their legal problems in a fast and affordable way.

Get in touch with our team today to discuss your legal matter.

Want to continue reading? Check out our article What is joint and several liability?

Farrah Motley | Legal Principal

PROSPER LAW – Australia’s Online Law Firm

M: 0422 721 121

E: farrah@prosperlaw.com.au

W: www.prosperlaw.com.au

A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000

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Contributors: Farrah Motley (Legal Principal of Prosper Law) and Nada Saleh (Legal Intern)

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