Nadia Sussman, ‘The Reasonable Person’s Ignorance of Tort Law’

ABSTRACT
This article considers the extent to which, and how, tort law continues to serve the community despite widespread ignorance of its doctrines. It starts from the premise that tort law’s design bars the layperson’s access to knowledge of tort law in four respects, and that this runs contrary to the New Zealand legal system’s commitment to the rule of law. In an effort to resist this conclusion, it considers whether there is cause to recalibrate our understanding of the rule of law’s aspiration that the law be knowable. Specifically, it evaluates the degree of knowability which we should expect of tort law as compared to other branches of law, and the content which the non-lawyer should be able to know. It focuses on whether the rule of law’s aspiration requires that tort law, as tort law, should be knowable so as to be accessible, or whether it is sufficient that the non-lawyer has knowledge of social norms which are given effect in tort law through the standard of the reasonable person. It concludes that we should not tolerate a lower degree of knowability in tort law, and that while the way in which tort law tracks social norms through the standard of the reasonable person carries tort law some way towards the ideals of legality, it cannot wholly allay our concerns about tort law’s unknowability.

Nadia Sussman, The Reasonable Person’s Ignorance of Tort Law, New Zealand Law Review, volume 2021, number 2, October 2021, pp 277-311.

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