Duty of Care v Duty to Care.

I’ve long wrestled with how to explain to teachers the difference between a moral duty of care - and the legal principle of Duty of Care.

Perhaps the answer lies in distinguishing between a duty TO care - and a duty OF care.

The former is a choice governed by our ethical view of our obligations to others, whereas the latter is an obligation imposed by the Law.

The distinction can be seen in the judgment from which duty OF care is derived. The judge referred to the ‘rule’ that we love our neighbour. Whether a person is next door or on the other side of the world - the ethical view is that they are our neighbour because they are a fellow human.

But the judge then said this rule ‘becomes in law’ - something much narrower. Our legal neighbour is any person who I can ‘reasonably foresee’ would be likely to be injured by my acts or omissions. If I had a remote control that I could use to pause the world at any moment as I was going about my day, who might be harmed by what I’m doing or not doing? Only those people become, in law, my neighbours. My duty OF care is to cease the behaviour or take the action that prevents them from suffering harm.

Thus, if we look at the Gospel of Luke which tells the story of the Good Samaritan from which the ‘love thy neighbour’ is derived, the behaviour of the priest and the Levite who ignored the victim on the roadside might be a failure of their moral duty TO care. It would not be a failure of their legal duty OF care.