I am getting so frustrated with the whole concept of duty of care. Do I owe a duty of care to the people around me? Is the concept of duty of care more of a moral obligation rather than that of a law? How do we define the people we owe a duty of care to? Say A is my friend, I witnessed A getting beaten up by a group of gangsters, I do not intervened for I am still in a state of shock and secondly, I knew that I could not defeat the group of gangsters so for the sake of my own safety I did not do anything to help prevent and stop the fight. Do I owe a duty of care to A? Logically speaking I owe him no duty at all because it wasn’t me who caused the physical harm to A and I couldn’t have done anything to prevent and stop the fight for the simple reason that I am outnumbered.
However if we have established that A is my friend, and having invested years of building our precious relationship, isn’t a duty of care already established by the mere fact that he is not a stranger anymore but someone we know and we should have a moral obligation to help him despite all odds? Why isn’t moral consideration considered as part of duty of care?
We can argue that law should be objective an minus all moral principles, we should derive and interpret the law strictly based on the facts of the case and the legal principles involved, but I disagree for the reason that law is derived from morals in the first place and we should always return to our roots and place moral obligations on top of law and shape the law according to our morals. However with that being said, the downside of this argument is that different people have different morals how do we come up with a clear set of morals to apply to each individual? Like how can we merge the morals of a murderer and that of a reasonable and honest citizen? That is a question that still remains to be solved but I always agree that morals could be derived from religion and that the principle of conscience. Conscience is something that some may say is arguable to a certain degree, but there is still a universal set of conscience that has been established in history to apply to our society. Some may use the ‘reasonable mans’ test to determine whether or not B owns a duty of care to A. Who the hell is the reasonable man? Does such a moron even exist? If not, why are normal people held to the standard of an imaginary person? Whatever happened to "the law should not require the impossible"? The reasonable mans test goes to suffice that the law is all about technicalities and established principles which stood the test of time. Which brings me to a conclusion, we should scrap altogether the test of the reasonable man for the above said reason for a reasonable man is not easily distinguished and therefore shouldn’t we instead use the test of the ‘average man’ where we peg the standards to a more identifiable and distinguishable set of criteria?
Hypo technically speaking, if you were A, how would you have felt if you came to the knowledge that your friend left you in the pit to fend for yourself? I would certainly be pissed but could my feelings of abandonment be justified as a logical conclusion of the breach of duty of care? Think about it….I shall leave it as that.
Btw happy birthday Ashley! And I am begging you to introduce someone to me …. Hehe….please?Z???