In test “The rule that you are to

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In English common law the term duty of care is encompassed by the term
Tort of Negligence, which refers to “a breach of duty or a failure of one party to exercise the standard of
care required by law, resulting in damage to the party to whom the duty was
owed”.  A tort is “a
wrongful act or an infringement of a right (other than under contract) leading
to legal liability.” In this essay, I will be critically discussing the problem
of liability when it comes to references given to potential employers in
respect of students.


There are three main components
that makes up a tort which include, duty of care, breach of that duty, and
damage or loss develop as a result of such damage. In the very infamous case of
Donoghue v Stevenson (1932), where Mrs.
Donoghue became very sick after drinking the contents of a ginger beer as she
later became ill sue to the contents being contaminated by a decomposed snail.
Donoghue sued the café owner and her claim was successful and it has been an
established case within the modern law of negligence. Lord Atkin, the judge of
the case, stated a neighbour test “The rule that you are to
love your neighbour becomes in law you must not injure your neighbour” (Lord
Atkin, 1932).


When deciding whether a claimant has to be owed a duty of care, the
courts follow a three-stage test that came about from the results of the Caparo
Industries pIc v Dickman 1990 2 AC 605 which involves stage one, if
damage or loss foreseeable, stage two, the proximity of the two parties and whether
the situation is fair, just and reasonable. In the Caparo case, Caparo
Industries purchased shares in Fidelity Plc due to the reliance of the accounts
that stated the company had made pre-tax profits of over £1 million. However,
Fidelity had in fact lost money. This lead to Caparo suing Fidelity over
negligence in publishing accounts. Yet, the courts deemed that no duty of care
was owed as there was not sufficient proximity between Caparo and Fidelity as
Fidelity weren’t aware of Caparo industries and their intentions.


After finding if a claimant is to
be owed a duty of care a breach of duty needs to be proved. To do this a But
for test is carried out, this requires a question to be asked to find out if
the defendant caused the damage, the question asked is “‘but for’ the defendant’s actions, would the claimant have suffered the
loss”. If the answer is no, the defendant is liable for damages. A popular
example of the application of the But for test is the case of Barnett
v Chelsea & Kensington Hospital 1969 1 QB 428. In this case Mr
Barnett went to hospital with complaints of severe stomach aches and vomiting,
five hours after being sent home and told to see his GP, Mr Barnett died from
arsenic poisoning. The hospital was not held as liable for his death due to the
doctor’s failure to examine the patient did not cause the death of Mr Barnett.


When referring to referencing of a previous employer under duty of care,
v Guardian Assurance plc 1995 2 AC 296 (HL) is a very popular case.
In this case, the plaintiff (claimant) was employed by an estate agents but was
dismissed due to clashes in management after a takeover, the new company then
gave Mr Spring with a negative reference leading to him not being accepted by
other companies. Mr Spring then sued the company for negligent misstatement and
the company was liable for damages in tort. The court took side with Mr Spring and
was owed a duty of care in tort. This suggests that there is a liability of
previous employers to provide and accurate reference for their previous
employees as attempting to deceive employers with false references as it can be
sued for negligence. However, it’s difficult to relate this case to the
question as, will schools / universities have similar levels of liability for
providing accurate references when compared to businesses.


When researching into the liability of universities about references I
found the case of McKie v Swindon College 2011 EWHC 469 (QB). Mr McKie left his
role within Swindon College to seek another challenge, he took his skills and
positive reference to the University of Bath which included conversing with his
previous employer. After liaising with his previous employer, Swindon sent a
condemning e-mail to the University of Bath regarding previous conflicts of
staff relationships through Mr Mckie’s behaviour. This led to Mr Mckie being
fired from his job and him taking Swindon College to court claiming damages as
he believed the e-mail was a reference. McKie won the case however the judge
dismissed the e-mail being a reference but he regarded the e-mail as “fallacious and untrue” and the reason
why he lost his job. After ruling that the breach was due to negligent
misstatement, the judge cited that there was suitable proximity between the two
parties so the claim was deemed to be fair and reasonable.


In conclusion, the University of Sussex will be found as
liable if they breach the duty of care if they were to provide a negligent
misstatement in a reference to an employer of one of their previous or current
employee or student. This is due to them failing to meet criteria within the
tort of duty of care, such as proximity, foreseeability of loss and if the
action was just and reasonable. This will lead to the University paying for
damages that they caused and doesn’t differ from regular companies and

Categories: Management


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