Institutional liability for criminal acts

Smita Jamdar

A question that I am fairly frequently asked is when universities and colleges can be liable for loss or harm suffered by students at the hands of third parties whilst students are engaged in study or study-related activity. The loss/harm may be caused by employees, contractors or indeed other students and could amount to criminal conduct in its own right, e.g assault, theft or criminal damage.

A raft of recent cases has revisited the legal position in these circumstances. Two involved employee on employee assault, whilst the third was a sad and disturbing case involving the rape of three schoolgirls by a tour guide whilst on an expedition facilitated by their school to Belize.
 
Broadly the law is as follows:

  • Vicarious liability is a strict liability (and essentially a loss distribution device), which it is considered fair to impose on employers as they have employed the perpetrator to further their own financial interests, and over whose conduct they exercise a substantial degree of control.

  • However, because it is a strict liability, there are limits to the principle; it was not “infinitely extendable”.

  • Institutions will therefore be vicariously liable for harm caused by the acts and omissions of employees in the course of employment, where the conduct is so closely connected to what was authorised or expected of the employee that it is in the interests of fairness and justice to hold the employer liable. 

  • Institutions may be liable for the acts of others who are acting on the institution’s behalf, e.g contractors, but only where there is evidence that the institution was in a position to control and/or prevent the act or omission in question.

  • Institutions will rarely be directly liable where the loss or damage has been caused by the criminal act of third parties, such as other students, unless it was clear that the criminal act was highly probable or very likely and the institution was in a position to exercise some control over the circumstances that gave rise to it.

  • Even where institutions do have a direct duty of care, it is only to take such care as is reasonable in the circumstances of each case. If there was nothing that could reasonably have been done to prevent the harm occurring, there can be no breach of duty. For example, in the Belize case, criticism was made that insufficient checks had been carried out on the tour guide. However the court concluded that even if further checks had been carried out they would have been unlikely to reveal any cause for concern, given the general perception of the tour guide prior to the incident as a reliable and trustworthy individual.

Overall this is a complex and highly fact-sensitive area of law. Courts will be looking for control, for a high degree of likelihood of harm and for reasonable action that could have been taken to prevent it.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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From → General Interest

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