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Rethinking the Reasonable PersonAn Egalitarian Reconstruction of the Objective Standard$
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Mayo Moran

Print publication date: 2003

Print ISBN-13: 9780199247820

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199247820.001.0001

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‘Boys Will Be Boys’: The Child Defendant and the Objective Standard

‘Boys Will Be Boys’: The Child Defendant and the Objective Standard

Chapter:
(p.58) 2 ‘Boys Will Be Boys’: The Child Defendant and the Objective Standard
Source:
Rethinking the Reasonable Person
Author(s):

Mayo Moran

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199247820.003.0003

The problem of how to judge individuals with cognitive or intellectual shortcomings illustrates one aspect of the ‘trouble’ with the reasonable person and thus raises a series of questions implicated in objective standards more generally. In stark contrast to the treatment of mentally disabled defendants, courts and commentators addressing the application of the objective standard to the child defendant insist that the basis of liability in negligence actually requires taking account of the limitations of childhood. The leading common law case on the standard of care to be applied in negligence cases against child defendants is the decision of the High Court of Australia in McHale v Watson. The most far-reaching question addressed by the courts in this case concerned the appropriate standard of care for child defendants. The McHale case also illustrates how judges, in giving content to the notion of reasonable care, may use judicial notice to draw on common sense notions of what is natural or normal behaviour of boys in particular.

Keywords:   cognitive shortcomings, objective standard, McHale v Watson, High Court of Australia, child defendant, behaviour of boys, negligence, standard of care, liability

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