ForThe100 is a national group campaigning for higher education students to be owed a minimum standard of legal protection enshrined in a statutory duty of care. The group wants a clear and transparent legal requirement for institutions to act reasonably and responsibly, so that students are not harmed by things institutions do (acts) and/or things institutions fail to do (omissions). Most importantly this would mean that higher education institutions could then be held legally accountable for any negligence that resulted in reasonably foreseeable injury to a student.
The ‘reasonable person standard’ is a flexible and extensively used concept in English Law, dating from 1837. It compares observed behaviour against what an ordinary person in the street would consider to be reasonable conduct in a given situation and is used to determine a breach in duty of care. Clearly, there will be different standards associated with different categories of institutional, professional or commercial relationships along with different types and levels of harmful consequences. At this stage it is important not to conflate issues concerning the existence of a duty of care with the separate question of what standard of care that duty demands.
ForThe100’s campaign has just received a significant boost. On 5th October 2023 in Feder and McCamish v The Royal Welsh College of Music and Drama it was ruled that universities have a Common Law duty of care to carry out reasonable investigations when they receive allegations of sexual assault from their students (Paragraph 571 of the Approved Judgment). This however is Common Law, which is law created by judges and recorded in their written opinions. It is also a principle under Common Law that a court will only ever be able to recognise whether or not a relevant and specific duty of care existed in the circumstances of the case before it. Hence to develop anything resembling a more general duty, with wider applicability, by such means would require dozens of individual cases to be successful. Proceeding piecemeal, on a case-by-case basis, it will take decades to establish an overarching legal requirement. In the meantime, higher education students remain at risk of being wronged or endangered by their own institutions, with much associated mental and physical distress, which can sometimes lead to self-harm and/or a loss of life, and without any proper redress under the law.
