‘Reasonable person’ test of virus response

Salvatore Babones

04 June 2020 | Ideas@theCentre

We can’t blame our leaders for being caught off-guard by the coronavirus; we all were. We can, however, hold our leaders responsible for the decisions they should have made based on the information they should have had at the time. Hindsight may be 20/20, but that doesn’t mean foresight should be blind.

One framework for evaluating decision-making under conditions of profound uncertainty is the ‘reasonable person’ test of common law. As famously formulated by the American jurist Learned Hand (yes, that really was his name), a ‘reasonable person’ would take into account the:

  • Probability of harm
  • Seriousness of the harm
  • Cost of taking precautions

My CIS paper The 12-Week Window: Coronavirus crisis Australia didn’t have to have,  applies these criteria to Australian decision-making during the crucial first 12 weeks of the crisis, from China’s first public acknowledgment of the ‘Wuhan pneumonia’ on December 30 to Australia’s final border closures on March 20.

It reveals that the high probability of harm and high seriousness of the probable harm were both clear by the end of week 5. Australia’s leaders made the right decision to ban travel from China on February 1, just inside that limit.

The decision to close the border with China likely cost Australia between $4.8 and $6.6 billion in export revenue in the first half of 2020 alone. Having incurred these costs, Australia had little to lose from progressively tightening border restrictions over the next five weeks.

Yet the country’s leaders chose instead to incrementally loosen controls. Australia belatedly started tightening again by imposing restrictions on travel from Iran (week 9), South Korea (week 10), and Italy (week 11), but by then it was too late.

Weekly confirmed cases hit the double-digits in week 9 and the triple-digits in week 10. By the time Australia banned all foreign travel in week 12, the country was detecting more than 1000 cases a week. Even so, Australia didn’t start quarantining residents returning from overseas until the end of Week 14.

It would have cost Australia very little to cut off other virus hot spots as they emerged, quarantine returning residents, and suspend cruise ships. Instead, the government’s failure to secure the border after week 5 cost the country dearly indeed. Learned Hand could only return one verdict: negligence.

 

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