What is normal
By Bailey Compton 27 Oct 2023
Is the concept of The Average Person realistic?
Last week, I spoke about the Donoghue vs. Stephenson case. Justice Atkin created the neighbour principle. It said all of us must take reasonable steps to avoid harm that we can reasonably foresee.
In 1932, you might be shocked to hear that the Court was slightly sexist.
The “reasonability test” stated that “a reasonable Man must take steps that the reasonable Man foresee”. The reasonable man in those days was considered as an average person from an average family, of an average income and average education. It did not take into account women.
The laws have since been adapted, adopting a concept of “reasonable person” which now includes both Men and Women.
But moving forwards, what is a reasonable person?
Is there a constant marker that a Court can point to when identifying the reasonable person, or is it so flexible that the Court can change its mind from time to time.
What is normal?
Not everyone is married for life!
Not everyone belongs to a heterosexual relationship. These days, not everyone is even distinguished as man or woman. We now permit the world to determine what norm they wish to be.
If you are a woman who wants to be identify as a man, it is now totally okay.
How will the Courts measure reasonability? If we all determine our own norm, what is an average person?
It will prove impossible to find a median between all these marks; since we are not going to find an indisputable average for anything.
Does this therefore move us towards subjective tests where Judges can determine their definition of the norm and therefore reasonability.
If this is the case, do we want Judges to determine what an average person is? We should think not! Judges are not normal either.
Whilst we currently enjoy being able to choose what we want to be, how will a Court provide objective test to cover all of us?