When words ain't words - contributory negligence, Civil Liability Acts and the standard of care

The relationship between a person’s capacity and the level of care expected of that person in a given situation has long been a controversial issue in the law of negligence. In the 19th century, courts applied a strictly objective standard, maintaining that a person’s actual age or ability had no bearing on the requisite level of care. During the 20th century courts had become more flexible in this regard, allowing the parameters of the standard of care to be adjusted to take into account the age of the person to whom the standard is to apply. Since the standard could now be attenuated in some circumstances, and since the relevant test in relation to age was unclear—either that expected of “a child of the same age, intelligence and experience” or that expected “of a child, meaning any ordinary child, of comparable age”— arguments arose as to whether there were other situations in which the standard should be altered to more accurately reflect the abilities of the class of person to which the particular plaintiff or defendant belonged. Specifically, what was the impact of disability — mental and physical — on the relevant standard of care to be applied, and should the principles and practices used to determine the issue in relation to contributory negligence be identical to those applicable to primary negligence?