The Reasonable Person Test Explained

- Wednesday, July 06, 2016

The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

DOES REASONABLE MEAN AVERAGE?

The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

THE ‘REASONABLE PERSON’ IN THE WORKPLACES

Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business. 

Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.   WISE Workplace can assist with independent investigations and expert advice.  

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