Iselin Jones: As an island community we all have a ‘duty of care’ towards each other
Duty of care. It’s a concept I’ve thought about a lot in the last year for several reasons, but even more so now. You probably have too even though it may not have been in conceptual terms.
In a nutshell, it’s about our responsibility towards other people - and more specifically, who’s got a responsibility towards whom.
In the midst of all the drama of the current situation, it's so easy to get carried away with fear, which leads to anger, which leads to blame, which leads to division. And a divided society in the middle of a pandemic is unhelpful, to say the least. I personally cannot recall a time during my 13 years in Jersey where people have been more divided than now.
‘Duty of care’ is a concept in tort law. Employers have a duty of care to their employees, healthcare personnel have a duty of care to their patients, parents have a duty of care to their children.
The test for duty of care was set in a case called Caparo v Dickman 30 years ago, and it’s worth reminding ourselves of.
In tort, the test for whether or not there should be a duty of care imposed is:
Whether there is a foreseeability of damage/harm;
Whether there is a sufficiently proximate relationship between the parties; and
Whether it would be fair, just or reasonable for a duty to be imposed by law.
We are an island community. We did so well, and our politicians tried to protect us. We’ve had an incredible testing system in place, which has allowed freedoms which have kept people sane and families, friends and lovers together. We had a summer which in many ways was ‘pretty normal’.
Now things aren’t so rosy, the first people we blame are the politicians.
Backbenchers too, quick off the mark to remove themselves from the official position - as if they would have done things very much better had they been in charge.
But the reality is, we have only ourselves to blame for this. Apart from a few select stalwarts, we all got too comfortable. We all got too careless. Some realised when it was time for pulling the reins back in, others didn’t.
Government exercised their duty of care by telling us in clear terms what we should and shouldn’t do. The reason we are where we are now is not because of them, it’s because we didn’t do as we were told. We didn’t recognise or accept our own duty of care.
People didn’t reintroduce social distancing when they should have, people didn’t reduce their social circles, people didn’t alter their habits in time, because they were fooled into thinking the new normal we enjoyed over the summer was here to stay.
It wasn’t. And now we are all back in the same boat.
As an island community we all have a duty of care towards each other. Even more so than people in larger, less controllable jurisdictions. We are small enough to be able to control this - we’ve shown that once before.
Where we find ourselves now, there IS foreseeability of harm- there IS a proximity in the relationship between islanders, because so many of us are connected and linked in one way or another, and it would absolutely be fair, right and reasonable for a duty to be imposed on us all by law.
A duty of care is the first element that needs to be established in an action for negligence. Negligence being ‘any act or omission which falls short of the standard to be expected of the ‘reasonable man’’.
Now is the time for us all to be ‘reasonable’ men and women. If this is the standard in law, this is the standard we should apply too - even if it isn’t yet set by government.
The consequences are there for all to see - there’s no more closing your eyes to the possibilities. This is it, we’re in it. The foreseeability of harm is real.
But to turn the tide and turn things around we all have to do one thing, and that is to recognise and live up to the duty of care we have towards our fellow islanders.
Our politicians have tried, and they’re still trying, but the extent to which they are successful is down to us - it’s as simple as that.