Does the "reasonable person" standard change based on social acceptance?

Question

The "reasonable person" standard is the standard of care that a reasonably prudent person would observe under a given set of circumstances. It serves as a comparative standard for courts to assess liability. However, Society is constantly evolving. Acceptance of things change over time. Does that mean that the "reasonable person" standard also changes over time?

Answer 1

Does that mean that the "reasonable person" standard also changes over time?

The reasonable person standard changes every time a new finder of fact, either a judge or a jury, considers a case.

To a great extent the whole point of a "reasonable person" standard is to inject irreducible uncertainty into the question of what conduct someone can be held liable for, thereby giving juries (or judges in bench trials) discretion to evaluate complex factual situations and consider those situations in light of the fact finders' collective moral judgment.

There are seemingly objective tests by which reasonableness can be measured, such as the "Learned Hand test" which compares the risk of harm caused by not taking a precaution times the likelihood that the harm will manifest itself. But ultimately, this is very rarely so clear a standard that it overcomes the broad discretion of the finder of fact to determine what is and isn't reasonable under a particular set of circumstances.

Answer 2

canada

What is considered to be reasonable may change over time, but not because of reference to what the ordinary or average person in society would expect. These positions may move in unison, but that is coincidental, not necessarily causal.

See Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9:

• "the concept of a reasonable person is normative in nature rather than descriptive"
• "A reasonable person approves of average behaviour, that is, the behaviour of the majority of people, only if it is rational and consistent with the nature of things"
• "Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatory comments, as the effect of this would be to sterilize the action in defamation."

See also R. v. Collins, [1987] 1 SCR 265:

• "The reasonable person is usually the average person in the community, but only when that community's current mood is reasonable."

In many legal contexts, it is "up to the jury to decide whether, in fact, [a person's] perceptions and actions were reasonable": R. v. Lavallee, [1990] 1 S.C.R. 852. In that case, expert evidence (about the cyclical and predictable nature of abuse) was available that left it open to the jury to find that the mental state of the accused was a reasonable one in the circumstances. In another case, from an earlier era, without such expert evidence, the jury may have found otherwise.