Duty of Care: A Restriction on Our Consumer Freedoms

In response to my recent email on who should stop whom from deciding as a consumer what to buy and use, Don Samuels sent me a very thoughtful reply saying:

“I remember in the late 70s, sitting in smoke-filled rooms for company meetings, where our CEO chomped on a huge, smoldering cigar and leaders at various levels puffed on a dozen cigarettes, in the middle of winter, with all windows shut tight. I remember gasping for air and struggling to speak without a hitch. The health considerations of second-hand smoke were still up for debate between the scientific research and the tobacco industry, but non-smokers like me were becoming convinced that we were paying a price for our smoking-co-workers’ freedom.”

His point about concern for others as a restriction on our liberties is a very sound one.

The old adage is: my right to swing my fist ends where your nose begins.

In the 1883 English case of Heaven v. Pender, Master of the Rolls Brett ruled that: “Whenever one person is by circumstances placed in such a position with regard to another… whereby he may cause danger of injury… a duty arises to use ordinary care and skill to avoid such danger.”

I was reminded of this source of personal duty to be careful of others by the recent outbreak of coronavirus in China. It seems most likely that the virus began to infect humans in a wet market for wild animals in China. Thus, personal decisions to buy and sell in a free market imposed dangers on others and have lead to many restrictions on personal freedoms in the Wuhan region.

The police powers of the state have long been accepted as reaching far enough to restrain our personal choices in order to decrease risks of harm to the health of others.