Shareholders' Remedies Reassessed

Abstract

broader. Inadvertence may qualify as a culpable mental state in circumstances when a person ought to have adverted. Treating as acting with an absent mental state a person who has acted intentionally but without adverting to a risk when he or she should have is like treating the failure to apply brakes while driving a motor vehicle as a pure omission rather than a dangerous act of driving. In a civil society there should be certain minimum duties of citizenship and every individual should have a responsibility to advert to relevant risks when actively engaging in certain conduct. Failure to live up to that can fairly be labelled culpable. This is not an objective test in the sense of ignoring the accused and asking what the reasonable person would have foreseen. The focus remains on the accused and the question is simply whether his or her mind should have been attuned to the risk. The two children in Rv G were not blameworthy because it was not reasonable to expect an eleven or twelve year old to advert to the risk that materialised. Had they instead been two drunks, it is unlikely that Rv G would have overruled Caldwell. For now, Caldwell is dead, although it lingers on as a ghost of Reid.58 A preferable course of action in Rv G would have been for the House of Lords to have endorsed an overt normative concept of recklessness by refining Glanville Williams' (an avowed subjectivist) proposed modification of Caldwell along the lines suggested here. This would allow courts to evaluate the blameworthiness of the accused's mental state according to prevailing ethical standards and distinguish between individuals who act out of 'stupidity or lack of imagination', and those who act 'outside the bounds of what humane and decent people regard as tolerable'.