The test for establishing whether a duty of care exists was finalised after the Caparo Industries v. Dickman (1990). The third and final criteria of the ‘three-stage test’ is that the claimant must establish that “it is fair, just and reasonable to impose a duty of care on the defendant” (E-lawresources.co.uk, 2016). Other cases on negligent misstatement include the Hedley Byrne & Co. v. Heller & Partners (1964). Hedley Byrne had relied heavily on their client’s credit reference from the bank, and due to their client’s negligence, Byrne suffered a financial loss after Heller & Partners went into liquidation. Previously, the plaintiff would not have necessarily been successful, as purely economic losses were not recoverable in the court of law. However, a year prior to the Hedley v. Heller case, the House of Lords established that “under limited circumstances – if a duty of care arose in the making of statements – pure economic loss in tort could now be recoverable in English law” (lawteacher.net, 2017). This has proven to be a crucial step in modern law, as many can now claim losses due to another’s negligence. Due to this, when making a statement you will automatically and voluntarily accept responsibility to the individual the reference is made to. For example, the case of Spring v. Guardian Assurance (1994), where the plaintiff was released from his job, and could not achieve new employment due to a negligent statement. The judge claimed the defendant owed a duty of care, and the employer became liable for damages, and Lord Woolf decided to extend the law of negligence because the law of defamation required malice, and not just negligence (Allen, 1995). From here on, all employers are to do their utmost in order to prevent future misstatements in references.
Similarly to an employer at a job, a teacher at a university has a certain degree of liability when it comes to students. Using the University of Sussex as an example, students act as consumers in the school, paying tuitions and multiple other fees. A professor on the other hand plays a somewhat similar role to that of an employer, giving students work to complete in return for marks and feedback, and also has an impact on the student’s future career with references. How you perform and your desire to succeed all contribute to how the statement will be worded, as it can easily be a negative statement, if it is true. The case of Bartholomew v. Hackney LBC (1999) is relevant in this context, as the defendant produced a negative statement of the plaintiff to a future employer, leading to the withdrawal of his offer. The case was settled, as the reference was not held to be unfair or inaccurate (White, 2001). So even if your ex-employers reference collapses your career, it is not seen as an act of negligence as long as no misstatements are present.
Professors and employers alike owe a duty of care under common law. Both can be held accountable for the student/employee’s health and safety around the school/workplace. They are also liable and responsible for any negligent misstatements in a given reference. There is no fine line which distinguishes where and when the duty of care is owed, but by using the three-stage test it becomes significantly easier through the use of guidelines. I personally believe that a duty of care is owed by both in many aspects, and giving accurate and fair references is crucial as both professors and employers are liable for undesired misstatements.