Capacity and the law of negligence : ignorance and prejudice guiding the way

![CDATA[Assessment of liability in negligence cases is based on the objective standard of reasonable care. A defendant’s inability to reach this standard is therefore irrelevant to the determination of liability. This principle has not been applied consistently in Australian tort law. A defendant with reduced capacity due to mental illness is required to meet the objective standard. Yet, a defendant with reduced capacity due to immature age is required to meet a standard which has been tailored to more accurately reflect the child defendant’s age and capacity. This article examines some of the leading explanations provided for this disparity in legal treatment and argues that the most likely driving force behind the law is society’s unintentional and pervasively negative attitude towards the mentally ill – a prejudice known as ‘sanism’.]]