| dc.description.abstract | 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. | en_US |
