Common law duty of care holds that, an individual is owed duty of care if he suffers any unreasonable loss or harm resulting from activities of another individual which were under his control. The person who breaches the duty of care will face legal liability to the duty-owner. He or she must therefore compensate the affected person for any form of injury or loss incurred. It is proven that if the victim does not create situations, which have caused harm, then such acts are referred to as pure omissions (Painter, 2002, p.113). There is no liability in this case unless; proven prior relationship has necessitated this.
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Duty of care can thus be defined as the act of taking reasonable care in avoiding deeds or omissions that are foreseeable and that can lead to injuries to a close person or those who are directly vulnerable to be affected as a result of an individual’s actions (Ewan, 2010, p.63).
How the Liability of University of Sussex Differ Regarding References of Students
The university does not hold liability for the students who are part of them. Without the students the University can not operate, there is therefore conflicts of interests because, The University does not wish to prejudice its students while at the same time, it does not want to take responsibilities for actions caused by the students as a result of writing them references. This shows evidently that the students are not 100% protected by the University. It would be expected that, as part of the University fraternity, the students ought to have been fully protected.
The university ought to have duty of care for the acts of its subordinates according to vicarious liability principle (Paula, 2010, p. 227). This is however not the case in Sussex University. If the student acts in good will and in the process is found guilty of a crime or breach of law, the claim will not be taken by the University.
It is also very difficult to file a case against an individual employee in Sussex University. If an employee of the University acts in negligence, in the normal course of duty, then it implies that injured individual will have to file a case or sue the university instead of the individual personally. This is because, by the law, the university is deemed vicariously responsible for any conduct of its employees. This can be misused by the employees to cover them up when they are caught up in relentless instances while acting outside their employment’s scope. Any reference made by a single employee of the university will not be biding since when negligence is committed, the university as a whole will have to take responsibility (Ewan, 2010, p.74).
The data protection Act 1998, schedule 7; denies the employees the right to access any of the reference provided by their employers unless consent is given by a former employer (Paula,.2010, p. 223). This acts against the employees since the employer may give wrong referee and being that the employee will not ascertain its truth, he may end up being victimized or presented in a wrong manner.
The employer is not liable for references in the case where the claimant is unable to establish whether there exists any duty of care between them as a result of relationship proximity (Collins, 2001, p.76). This clause usually protects the employer to the expense of the employee who may not be in a position to justify their relationship with the employer especially if employment was in contractual basis which had already been terminated. It remains therefore that any reference given after immediate termination of a contract can not be counted on the previous employer. Any loss suffered by the employee arising from their previous contractual tie with the employer, will not be covered by the former employer, the employee ends up taking all the risks which may be as a result of negligence actions of his former employer. This puts the employer at risks if he cannot prove the existence of a relationship. This can be attested by the court ruling in the case of Kidd v Axa Equity and Law Life Assurance Society (Collins, 2001, p.77).
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The law provides that an employer should purpose to give reference of employees which are true, fair and accurate. The employer owes a duty of care to his employees and thus should not give any misleading information or impression (Bayne & Helen, 2010, p. 537). This is very difficult to comply with since it implies that the employer should be very comprehensive. Although there is a provision which states that duty of care in each case need not to be fully comprehensive, the degree of being comprehensive remains in question. What appears to be comprehensive for an individual may not be comprehensive to the other, this is why this case remains very tricky to handle.
The university does not give telephone references, except in some circumstances. This implies that when a reference is given to a student, one can not call back to ask for clarifications unless he does so in writing and the response made in writing too. This may be a waste of both time and resources if the information to needed was just a mere clarification. It takes time for posting letters and receiving their feedback on the other hand if there is oral reference; one can easily misinterpret or misheard the statements made (Ewan, 2010, p.57). This may lead to legal actions against the staff that provided such information. He or she may be guilty of negligence and the university will be under no obligation to cover him or her. This is because the university believes that the employees exercise duty of care when providing reference to the students. The staff giving reference is thus limited to only relevant and competent information that he is well conversant with. This may end up undermining the amount of information which could have been relevant for recommendation of a given student as the staffs may only give an overall view of a particular student.
In summary, the liability of University of Sussex also differ Regarding References of Students in the sense that, the university clearly needs the staff to give facts and not just statements. Take for example, a student who have been performing well and based on the performance is clearly seen that he will end up getting a first class, will not be given a reference stating that he is a first class material by the mere fact that the student have not yet been confirmed by the university or have not yet graduated. This limits the information given especially references that touches on academic qualifications. One should be in a position to distinguish opinions and facts when giving a reference.
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