tort
How can an objective standard be subjectively applied?
<p>Source: <a href="http://store.thomsonreuters.ca/product-detail/canadian-tort-law-in-a-nutshell-fourth-edition/" rel="nofollow noreferrer"><em>Canadian Tort Law in a Nutshell</em>, 4 ed.</a> p. 66 Bottom</p>

<blockquote>
  <p> Not every error made by a professional, amounts to negligence. The law does 
  distinguish between incompetence and mere "errors in judgment." An error falls 
  into the latter category if it is the kind of error a competent professional might 
  make.<sup>34</sup> This appears to be an <strong>objective standard which is subjectively applied</strong>, as 
  there are no clear criteria from the cases indicating how errors of judgment are to 
  be identified. </p>
  
  <p><sup>34</sup><em>Lapointe c. Hôpital Gardeur</em> (1992), 90 D.L.R. (4th) 7, 1992 CarswellQue 47, 1992 CarswellQue 
  131, 10 C.C.L.T. (2d) 101, [19921 1 S.C.R. 351, 9 C.P.C. (3d) 78, (sub nom. <em>Lapointe v. Chevrette</em>) 
  133 N.R. 1 16, (sub nom. <em>Lapointe v. Chevrette</em>) 45 Q.A.C. 262, [1992] S.C.J. No. 11 (S.C.C.); <em>Pelky 
  v. Hudson Bay Insurance Co.</em> (1981), 35 O.R. (2d) 97, 1981 CarswellOnt 706, [1982] 1.L.R. 1-1493 </p>
</blockquote>

<p>How exactly would an objective standard (henceforth OS) be applied subjectively? How does subjective application differ from objective application of an OS?</p>

<p>The next part of the sentence (after the bolded text) explains how an objective standard may be applied subjectively: </p>

<blockquote>
  <p>there are no clear criteria from the cases indicating how errors of judgment are to be identified.</p>
</blockquote>

<p>Essentially, my view of whether an error is the kind of error a competent professional might make may differ from your view of whether that same error is the kind a competent professional might make. Because there are no criteria established, the application is subjective. </p>

<p>Conversely, if there were criteria that you and I were both bound to apply in making this determination, then you and I would be using an objective standard to determine if that error was the type a competent professional might make. </p>

<p>The standard is "objective" in the sense that it does not dependent upon the actual state of mind of the allegedly negligent person, only upon what a person in his shoes should objectively be required to do. This could cut both ways. For an overanxious person it could excuse conduct subjectively believed to be negligent that still met the community standard. For a lax person it could impose liability that a person did not subjectively believe was a mistake or accident.</p>

<p>The standard is "subjective" in the sense that it is a standard and not a rule. The judge or jury evaluating whether there was liability, and any expert witness evaluating whether conduct was negligent needs to engage in an exercise of judgment that is not black and white, and hence has a subjective character to it.</p>

<p>"Rules" are objective standards that can be applied objectively (e.g. you are not allowed to run a red light). Standards like "negligence", by definition, cannot be applied objectively even if they are "objective standards" that are determined without regard to a defendant's personal intent.</p>

<p>So, it is objective with regard to the wrongdoers actual thoughts, but is subjective in the sense that the trier of the case needs to exercise judgment in determining whether conduct does or does not meet the relevant legal standard.</p>
