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The modern reasonable person

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Cheryl Stephens
Cheryl Stephens

1. The document discusses the evolution of the "reasonable person" standard from referring to an ordinary, average man to a more inclusive definition that considers various hidden characteristics and limitations. 2. These include physical, cognitive, and social factors like disabilities, mental health issues, literacy levels, and cultural backgrounds. 3. The reasonable person standard is now viewed as applying to a range of ordinary individuals in similar circumstances and under the same limitations or disabilities, rather than an average person without such factors.

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The new reasonable person: The ordinary and average Cheryl Stephens Clarity Conference 2018
What is the reasonable person? Who is the ordinary person? What are the hidden characteristics? The new reasonable person: The ordinary, average
Typical use a reasonable person would not expect to lose their right to recover under an insurance policy where damage or loss did not result from their own actions
Use of plain language in agreements BC Motor Dealer Regulation Every consignment agreement and purchase agreement must be written in plain language, in not less than 8 point type, and in a manner which is easily understood by a reasonable person. Tenancy Agreement Regulation ...which is easily read and understood by a reasonable person...
From: Counsel to the President The [Trump] Administration has an interest in you interacting with Covered Organizations such as Fox News the need for your services outweighs the concern that a reasonable person may question the integrity of the White House Offices programs and operations.
Would the reasonable person read this?
Would the reasonable person read these?
The new reasonable person: The ordinary and average 1. What is the reasonable person?
Adolphe Quetelet L'homme moyen translates as: average man common man reasonable man Documented characteristics statistically Discussed motivations when acting in society. On Man, and the development of his faculties, 1835
First appearances in law Vaughan v. Menlove (1837) An ordinary, prudent person; Not of a particular intelligence or capacity for judgment Blyth v. Company Proprietors of the Birmingham Water Works (1856)
Recent appearance in law The court may need to be informed by evidence of circumstances which bear on the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49
Are women reasonable? US Supreme Court 2018: Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder and challenge their own ideas and those of others. Supreme Court of Canada 1990: the perspectives of women, which have historically been ignored, must now equally inform the objective standard of the reasonable person in relation to self-defence.
Thinking, Fast and Slow Faulty heuristics and cognitive biases or illusions shortcuts and rules of thumb by which we make judgments and predictions. Known of since 1970s; 2011 bestseller Thinking, Fast and Slow by Daniel Kahneman Yet focused training can have an effect, like that on economists or statisticians (Nisbett)
No time to measure the lines, in real world situations
The Supreme Court of Canada says to be informed means to: know rights affecting legal processes know which rights apply to what is happening understand them be able to make informed choices be able to use them to take action in what we each consider our own best interests
The new reasonable person: The ordinary rider 1. What is the reasonable person? 2. Who is ordinary and average?
The reasonable person often enough looks and acts most like the person applying the standard: perhaps, unsurprisingly, the reasonable person often turns out to bear a rather suspicious similarity to the judge. Judicial Bias
The modern reasonable person
Cultural competency Canada is a multilingual and multicultural society. Lawyers and judges may lack cultural competency: awareness and knowledge As all people do, they have cognitive biases they are not aware of.
Traditional reasonable-person standard Does not consider the particular persons reasonableness character intelligence But does consider circumstances limitations
Who is the average reader? the reading circuit is not given to human beings through a genetic blueprint like vision or language; it needs an environment to develop. the present reading brain enables the development of some of our most important intellectual and affective processes: internalized knowledge, analogical reasoning, and inference; perspective-taking and empathy; critical analysis and the generation of insight. (deep reading)
Who is the average reader?
Supreme Court of Canada recognizes differences that are disabling because of external barriers posed by society and its norms, procedures, and institutions discrimination is socially constructed aspects of disability: physical or mental impairments or illness functional limitations, real or perceived societys problematic response to the persons condition: prejudice and stereotypes
Communication and problem-solving hurdles physical emotional medical psychological sociological situational
The problem with hindsight How do we deal with a characteristic or disability, affecting how objective information is received and understood and used to make a decision? Cognitive biases exist and may lead to more effective actions in a given context. They enable faster decisions when timeliness is more valuable than accuracy.
Correct answers Original Plain language 40% 95% Canadian government certificate to register livestock: 60% could not successfully complete the government form Average, reasonable?
What is reasonable now? Complex chronic disease program patients have 6 or more diagnoses, many medications, disabling fatigue, difficulty thinking and remembering, and severe pain. Dr. Alison Bested, former medical director of the Complex Chronic Disease Program
1. What is the reasonable person? 2. Who is average and ordinary? 3. What are the hidden characteristics? The new reasonable person: The ordinary rider
New reasonable person Typical Ordinary Reasonable In similar circumstances under the same limitations Disabled defendant standard of reasonable person with same disability or limitation
Quetelets mean as personas Persona 1 Man Head injury PSTD Persona 3 Woman Illiterate Alcoholic Suffered childhood abuse Persona 2 Gender non- conforming Dyslexic Senior
Hidden characteristics
Literacy or cognitive challenges Low education Medical conditions Age Disabilities Learning difficulties Poverty Personal and social stresses
Ontario disability definition Condition of mental impairment or a developmental disability Learning disability Dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
Common challenges Learning disability Dyslexia Visual impairment Low vision 9.3% Blind 8% Other visual Impairment 9.5% Impatience/high stress 22 to 30% Medical issue Diabetes 15 to 20% Mood disorder (life) 14%
Print disabled Blind or visually impaired Dysfunctional literacy Dyslexic Mentally challenged Other physical and medical conditions making it difficult to read printed materials
The modern reasonable person
The modern reasonable person
The modern reasonable person
Nature of Complaints Against Lawyers
Reasonable professional person test Some maintain a custom or practice long after a better method becomes available. So, the practitioner may have acted unreasonably despite following custom or general practices.
The new professional norms Plain language communication General awareness of communication issues Cultural competency

More Related Content

The modern reasonable person

  • 1. The new reasonable person: The ordinary and average Cheryl Stephens Clarity Conference 2018
  • 2. What is the reasonable person? Who is the ordinary person? What are the hidden characteristics? The new reasonable person: The ordinary, average
  • 3. Typical use a reasonable person would not expect to lose their right to recover under an insurance policy where damage or loss did not result from their own actions
  • 4. Use of plain language in agreements BC Motor Dealer Regulation Every consignment agreement and purchase agreement must be written in plain language, in not less than 8 point type, and in a manner which is easily understood by a reasonable person. Tenancy Agreement Regulation ...which is easily read and understood by a reasonable person...
  • 5. From: Counsel to the President The [Trump] Administration has an interest in you interacting with Covered Organizations such as Fox News the need for your services outweighs the concern that a reasonable person may question the integrity of the White House Offices programs and operations.
  • 6. Would the reasonable person read this?
  • 7. Would the reasonable person read these?
  • 8. The new reasonable person: The ordinary and average 1. What is the reasonable person?
  • 9. Adolphe Quetelet L'homme moyen translates as: average man common man reasonable man Documented characteristics statistically Discussed motivations when acting in society. On Man, and the development of his faculties, 1835
  • 10. First appearances in law Vaughan v. Menlove (1837) An ordinary, prudent person; Not of a particular intelligence or capacity for judgment Blyth v. Company Proprietors of the Birmingham Water Works (1856)
  • 11. Recent appearance in law The court may need to be informed by evidence of circumstances which bear on the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49
  • 12. Are women reasonable? US Supreme Court 2018: Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder and challenge their own ideas and those of others. Supreme Court of Canada 1990: the perspectives of women, which have historically been ignored, must now equally inform the objective standard of the reasonable person in relation to self-defence.
  • 13. Thinking, Fast and Slow Faulty heuristics and cognitive biases or illusions shortcuts and rules of thumb by which we make judgments and predictions. Known of since 1970s; 2011 bestseller Thinking, Fast and Slow by Daniel Kahneman Yet focused training can have an effect, like that on economists or statisticians (Nisbett)
  • 14. No time to measure the lines, in real world situations
  • 15. The Supreme Court of Canada says to be informed means to: know rights affecting legal processes know which rights apply to what is happening understand them be able to make informed choices be able to use them to take action in what we each consider our own best interests
  • 16. The new reasonable person: The ordinary rider 1. What is the reasonable person? 2. Who is ordinary and average?
  • 17. The reasonable person often enough looks and acts most like the person applying the standard: perhaps, unsurprisingly, the reasonable person often turns out to bear a rather suspicious similarity to the judge. Judicial Bias
  • 19. Cultural competency Canada is a multilingual and multicultural society. Lawyers and judges may lack cultural competency: awareness and knowledge As all people do, they have cognitive biases they are not aware of.
  • 20. Traditional reasonable-person standard Does not consider the particular persons reasonableness character intelligence But does consider circumstances limitations
  • 21. Who is the average reader? the reading circuit is not given to human beings through a genetic blueprint like vision or language; it needs an environment to develop. the present reading brain enables the development of some of our most important intellectual and affective processes: internalized knowledge, analogical reasoning, and inference; perspective-taking and empathy; critical analysis and the generation of insight. (deep reading)
  • 22. Who is the average reader?
  • 23. Supreme Court of Canada recognizes differences that are disabling because of external barriers posed by society and its norms, procedures, and institutions discrimination is socially constructed aspects of disability: physical or mental impairments or illness functional limitations, real or perceived societys problematic response to the persons condition: prejudice and stereotypes
  • 24. Communication and problem-solving hurdles physical emotional medical psychological sociological situational
  • 25. The problem with hindsight How do we deal with a characteristic or disability, affecting how objective information is received and understood and used to make a decision? Cognitive biases exist and may lead to more effective actions in a given context. They enable faster decisions when timeliness is more valuable than accuracy.
  • 26. Correct answers Original Plain language 40% 95% Canadian government certificate to register livestock: 60% could not successfully complete the government form Average, reasonable?
  • 27. What is reasonable now? Complex chronic disease program patients have 6 or more diagnoses, many medications, disabling fatigue, difficulty thinking and remembering, and severe pain. Dr. Alison Bested, former medical director of the Complex Chronic Disease Program
  • 28. 1. What is the reasonable person? 2. Who is average and ordinary? 3. What are the hidden characteristics? The new reasonable person: The ordinary rider
  • 29. New reasonable person Typical Ordinary Reasonable In similar circumstances under the same limitations Disabled defendant standard of reasonable person with same disability or limitation
  • 30. Quetelets mean as personas Persona 1 Man Head injury PSTD Persona 3 Woman Illiterate Alcoholic Suffered childhood abuse Persona 2 Gender non- conforming Dyslexic Senior
  • 32. Literacy or cognitive challenges Low education Medical conditions Age Disabilities Learning difficulties Poverty Personal and social stresses
  • 33. Ontario disability definition Condition of mental impairment or a developmental disability Learning disability Dysfunction in one or more of the processes involved in understanding or using symbols or spoken language
  • 34. Common challenges Learning disability Dyslexia Visual impairment Low vision 9.3% Blind 8% Other visual Impairment 9.5% Impatience/high stress 22 to 30% Medical issue Diabetes 15 to 20% Mood disorder (life) 14%
  • 35. Print disabled Blind or visually impaired Dysfunctional literacy Dyslexic Mentally challenged Other physical and medical conditions making it difficult to read printed materials
  • 39. Nature of Complaints Against Lawyers
  • 40. Reasonable professional person test Some maintain a custom or practice long after a better method becomes available. So, the practitioner may have acted unreasonably despite following custom or general practices.
  • 41. The new professional norms Plain language communication General awareness of communication issues Cultural competency

Editor's Notes

  • #4: Personal Responsibility for Intentional Conduct: Protecting the Interests of Innocent Co-Insureds under Insurance Contracts, 2013 50-3,2013 CanLIIDocs 101, Elizabeth Adjin-TetteyAlberta Law Review
  • #5: Motor Dealer Act MOTOR DEALER CONSIGNMENT SALES REGULATION [includes amendments up to B.C. Reg. 200/2017, January 1, 2018]
  • #6: https://www.whitehouse.gov/wp-content/uploads/2018/07/Shine-Authorization.pdf
  • #7: Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 http://www.courts.gov.bc.ca/jdb-txt/sc/17/17/2017BCSC1702.htm As a condition of use of the ski area and other facilities, the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, skating, cycling, hiking and all other recreational activities; the use of ski lifts; collision or impact with natural or man-made objects or with skiers, snowboarders or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of Big White Ski Resort Ltd. and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the Ski Area Operator). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto. Union Steamships Limited v. Barnes, [1956] S.C.R. 842;Mayer v. Big White Ski Resort Ltd., 1997 CanLII 4261 (B.C.S.C.), affd 1998 CanLII 5114 (B.C.C.A.);Dixon v. B.C. Snowmobile Federation, 2003 BCCA 174; andDyck v. Manitoba Snowmobile Association, [1985] 1 S.C.R. 589.
  • #8: US law: provide consent knowingly, freely, and voluntarily.
  • #10: A mathematician influential in introducing statistical methods to thesocial sciences.average man" (l'homme moyen) who is characterized by themean valuesof measured variables that follow anormal distribution.
  • #13: A US 7thCircuit Court of Appeals upheld an injunction blocking an Indiana law that requires women to get an ultrasound and wait 18 hours before seeking an abortion. No. 17八1883 PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff/Appellee, v. COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants八Appellants. July 25 2018 1990 decision of R v Lavallee, the Supreme Court of Canada
  • #14: Dr Suzy J Styles @suzyjstyles Psycholinguist. Brain, Language & Intersensory Perception at Nanyang Technological University, Singapore. July 27, 2018 reporting on CognScience Conference: Mary Jean Amon presenting on distributed cognition (that is, sharing the job of cognition between, say, 2 people), and how to investigate it between species... Joint work with Zachariah Neemar & Louis Favela
  • #15: In 2018, Kahneman says he doesnt believe we can change System 1 thinking. System 1=the quick-thinking part of our brain and the one that makes mistaken judgments. Richard E. Nisbett, a social psychologist at the University of Michigan, 2015 book,Mindware: Tools for Smart Thinking, also Mindware: Critical Thinking for the Information Age, an online Coursera course in which he goes over what he considers the most effective de-biasing skills and concepts. https://medium.com/the-atlantic/the-cognitive-biases-tricking-your-brain-42fae5b9d1ca
  • #18: Court of Appeal, in Earnshaw v. Despins, (1990), 45 B.C.L.R. (2d) 380 (B.C.C.A.) at para. 14.
  • #19: Mayo Moran, Rethinking the Reasonable Person (2003, Oxford Press) at 17 As quoted in letter of October 5, 2005 from Robert F. Bauer, Perkins Coie to Brad Deutsch, Office of General Counsel, Federal Election Commission
  • #20: Vancouver Surrey, Richmond Schools 19% ESL and 8% special needs
  • #23: Skim reading is the new normal. The effect on society is profound Maryanne Wolf When the reading brain skims texts, we dont have time to grasp complexity, to understand anothers feelings or to perceive beauty. We need a new literacy for the digital age Sat 25 Aug 201814.41BST https://www.theguardian.com/commentisfree/2018/aug/25/skim-reading-new-normal-maryanne-wolf cognitive impatience, inability to read with a level of critical analysis sufficient to comprehend the complexity of thought and argument found in more demanding texts, whether in literature and science in college, or in wills, contractsandthe deliberately confusingpublic referendum questions citizens encounter we dont have time to grasp complexity, to understand anothers feelings, to perceive beauty, and to create thoughts of the readers own.
  • #24: To learn more about the PIAAC:The international OECD website athttp://www.oecd.org/skills/piaac, the U.S. Department of Educations Institute of Education Sciences website athttps://nces.ed.gov/surveys/piaac, and the PIAAC gateway website at http://piaacgateway.com.
  • #25: Regina vs Evans Regina vs Evans
  • #31: Case law and legislation has led to this development. Think about: Deaf. Blind. Have foresight of them.
  • #37: 27% of Canadians with a Bachelors Degree do not have level of literacy sufficient to cope with a modern, information society.
  • #38: Apply to problem-solving and decision-making
  • #39: Canadian-born: Some people who have poor reading skills experienced poverty, abuse, neglect, poor nutrition, and racial or other discrimination as children and young adults that interfered with their learning.
  • #42: A uniform practice or standard which has a negative or adverse effect on a group of persons because it does not accommodate their particular characteristics though this could be done without sacrificing legitimate objectives or incurring undue hardship.