Negligence in the delivery of higher education – how vulnerable are our universities?
| Published date | 01 August 2002 |
| Date | 01 August 2002 |
| DOI | https://doi.org/10.1108/09578230210433445 |
| Pages | 390-399 |
| Author | Norman A. Katter |
| Subject Matter | Education |
Journal of
Educational
Administration
40,4
390
Journal of Educational
Administration,
Vol. 40 No. 4, 2002, pp. 390-399.
#MCB UP Limited, 0957-8234
DOI 10.1108/09578230210433445
Received May 2001
Revised November 2001
Accepted January 2002
Negligence in the delivery of
higher education ± how
vulnerable are our universities?
Norman A. Katter
Queensland University of Technology, Brisbane, Australia
Keywords Negligence, Universities, Education, Liability, Tort
Abstract This article examines and highlights the potential ambit of liability for educational
negligence within universities. While the absence of any existing body of case law on the liability of
universities necessarily requires a degree of speculation as to the attitude of the courts, some
guidance can be obtained from the principles and policy underpinning the existing case law and
commentary on the negligence of teachers and schools. This article draws on recent developments
in the United Kingdom with respect to educational negligence. The common law in Australia has
traditionally developed alongside United Kingdom law and legal developments in the United
Kingdom are indicative and pre-empt or parallel developments in Australia.
Introduction
As universities are forced into a more commercial competitive environment the
vulnerability to suit is accentuated. As students perceive their role more as
clients rather than students, their willingness to litigate for perceived or actual
misrepresentations or defects in the delivery of services increases. The public
has become more aware of their rights to litigate for breach of contract or for
the tort of negligence. Evidence of this is found in the explosion of litigation
through the courts, exacerbated by speculative actions and contingency fees
offered by solicitors.
Potential common law actions as well as the reach of statutory law, such as
consumer protection legislation with respect to the supply of services, has
forced what Stewart (1998, p. 131) describes as a ``legalisation'' of educational
institutions requiring ``new regulatory or controlling procedures''.
This paper focuses on negligence, since it may reasonably be assumed that
management and staff within universities act bona fide and are unlikely to
infringe fiduciary duties (e.g. fraud, conflict of interest, etc.) in their
professional capacity. However, it is very likely that staff and management,
within their professional careers, are at some stage likely to be careless or
inaccurate in the provision of advice or information.
There are two broad areas of potential litigation for negligence against
universities and their staff. The first is not the subject of this article and
therefore can be disposed of with brief comment. This potential liability relates
to negligence by the university or its staff causing physical injury to a student
or for that matter an employee or any person. Negligence causing physical
injury to person or property has long been the traditional foundation for the
tort of negligence, and there exists a body of reported case law and
The current issue and full text archive of this journal is available at
http://www.emeraldinsight.com/0957-8234.htm
To continue reading
Request your trial