Liability in negligence of the mentally ill

Abstract

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.