A responsabilidade civil da pessoa com deficiência que envolva transtorno mental

Abstract

This thesis investigates the justification for the tort liability of the person with disability diagnosed with a mental disorder. It starts from the conceptions of universal legal capacity and a support paradigm, which are more suitable to the issue than the traditional Brazilian legal conceptions of civil competence, and from Arthur Ripstein’s non-consequentialist justification of tort law, considered the other consequentialist and non-consequentialist alternatives. Given these underpinnings, the tort liability of the persons with disabilities diagnosed with a mental disorder is no different from the tort liability of the persons with no disabilities. Taking account of a normative and objective conception of fault, evaluated from the perspective of the reasonable person, a conception of causality, considering the importance of the duties of care in its definition, and a conception of foreseeability, and bearing in mind the significant role of luck in the regime of tort law, it is possible to justify the tort liability of the person with disabilities diagnosed with a mental disorder. For this conclusion to hold, however, it depends on the correct comprehension and use of the other liability rules in Brazilian law, such as the subsidiarity liability of the incompetent person, the possibility of the use of equity by the Court, and the rules of comparative negligence. About the subsidiarity, it is put forward an argument against its supposed benefits, for the onus is integrally and unjustifiably transferred to the legal guardian, who is in general her primary carer in Brazil. About the equity rule, it is necessary to better comprehend it to seise its possible benefits against the general rules of the legislation. Finally, about the comparative negligence, I adhere to the argument that it is necessary to update the reasonable person parameter to consider the knowledge about the neurodiversity in the society, giving bases to broaden the duty of care of persons with no disabilities in relation to the persons with disabilities, taking account of the foreseeability of the condition of the other person in the situation.