Duty of Care
By Malith Alier, Juba
I was going to the chemist’s shop this morning to purchase anti-malarial tablets for a sick relative. On the way, I found three individuals working on the road side trying to close a water pathway from a shower in their homestead. As I pass, one of the men at work lifts a heavy stone and hurls it on the water and therefore, splashed it on my body. I ask as to why he saw me passing and didn’t wait for me to go past before throwing that stone. As soon as I finished, a disabled big bellied man, apparently a landlord uttered something which shocked me. “de shokol” “this is work, if somebody is in the workshop and you happen to pass he doesn’t care, It is your responsibility to take care of yourself.”
Instead, it is not my responsibility but his responsibility to make sure that anyone who passes there while him or his men at work must be made aware that some work is in progress and therefore, they have to proceed with vigil. This is what is known as “duty of care.” Anyone who does something in public place must seriously observe “duty of care.” Failure to do so may lead to prosecution in the law of torts. Damages may be awarded if proven that there was negligence on the side of the one such as in above example.
Examples abound on how the duty of care may be exercised. One example is the road construction workers. They often place a sign with “slow down, men at work” or “road work ahead” a few metres away from the actual work site. This is extremely important because it alerts the road users that the conditions of the road are different and they have to approach with care. Usually, the road workers have heavy equipment and are numbered from tens to hundreds. They employ elaborate arrangements to direct traffic to safer side of the road under construction or maintenance. By alerting the road users, they have exonerated themselves of any unexpected occurrence. It is on the other hand, the responsibility of road users to decelerate and observe traffic flow as directed by the designated controller.
Another instance where duty of care may be exercised is cleaning of public spaces in hospitals, supermarkets, hotels and so on. The cleaners erect a “wet floor” sign to alert the passersby that they may tip over and get hurt. This sign serves to enhance the responsibility of the one who is doing the cleaning. It is the equation changer. The ball is now in the passersby’s court. However, this does not completely exonerate the cleaner from all the responsibility. There are further instances whereby a court case may still be instituted against the organisation.
Perhaps the one who carries the heaviest duty of care is the local government in form of City Council, County Council, Town Council, Payam Council and village as well as Boma Councils.
The local government is the closest government to the people and therefore, bears responsibility of organising, directing and warning the public of all acceptable and unacceptable behaviour in a particular locality. The local government is in charge of roads, sanitation, estates, Parks and Reserves, sports and recreation facilities, environment and many more. The local government therefore, erects road signs, takes care of sanitation, plans estates, controls parks and forest reserves and runs sports and recreation facilities in the locality. Failure to properly manage these functions can result in serious consequences of which the local government may be sued. For example if the City Council fails to erect signs warning people against swimming in River Nile, it could be sued against negligence.
River Nile is infested with crocodiles and other dangerous animals like hippopotamuses which can kill. Other dangerous objects may be under water and could harm swimmers e.g. shipwreck. It is therefore, the responsibility of Nimule Town Council, Juba City Council, Terkaka Town Council, Bor Municipal Council, Malakal City Council and Renk Town Council along the Nile to make sure that safe swimming sites are designated and nobody should swim anywhere else. The designated sites must have trained wardens who should be on site to warn when danger approaches. They can also provide assistance if needed during swimming period.
Failure to observe the duty of care is called negligence. The concept of negligence is not confined to the above two examples but is wide ranging. The doctors who treat patients in hospitals can be sued for negligence or malpractice. Take an instance where a child is crippled after administration of injection on the wrong side of buttock by a nurse. This child can sue the hospital for negligence or malpractice and he can get damages for this reason if proved that the health institution failed to properly administer the injection.
The above scenarios are slowly but surely coming to play in the lives of South Sudanese. As people migrate to cities and progress in knowledge, there is an increasing need to be mindful of the welfare of others. You and I are our brothers’ keepers!
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