• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11

Legal Memo

Extracts from this document...

Introduction

LEGAL MEMORANDUM INTRODUCTION You have asked me to investigate whether you, Law School, will be found negligent for the psychological injuries suffered by your student culminating in that student dropping out, which originally ensued from harassing e-mails. In order for a cause of action in negligence to succeed, a duty of care must be proven by the plaintiff.... To determine whether there is a duty of care between a university and its students, we must ascertain whether it falls within an existing or analogous category. If it does not, a novel duty of care can be established by applying the full Anns/Cooper test. After briefly answering those questions, I will review the relevant facts, issues and subsidiary issues, and move onto the analysis of those issues. The memo ends with a brief conclusion. BRIEF ANSWER Based on existing caselaw, there is an unfavourable chance that the relationship between a university and its students will fall within an analogous category. There is moderate probability that a novel duty of care will be established for a university towards its students. FACTS In October, Law School sent an e-mail to its students to warn them about threatening e-mails suspected to come from a student. The e-mail also stated that harassing e-mails violated the Law School Code of Conduct and could result in disciplinary sanctions. Law School took no further action. One student, Future Lawyer, was a consistent recipient of these threatening emails. The receiving of e-mails coincided with sessions of History of the Common Law, but the sender was never identified by Future Lawyer. She reported the e-mails to the administration but it failed to take action. When the e-mails intensified, Future Lawyer was unable to attend first that class and then the rest of her classes because of serious psychological injuries that were directly caused by the harassing e-mails. She received care from a physician but was unable to complete the semester and dropped out of Law School. ...read more.

Middle

The nature of the harassment suffered by Future Lawyer was not a product of her physical environment of which she had no control over, but through e-mails. In the cited cases, the harassment was a form of discrimination, which has not been confirmed in the content of the threatening e-mails. Moreover, common law has not established that the duty owed by a university is equivalent to the duty owed by an employer. The content of the threatening emails is unclear and is important to ascertain because it will determine whether Guzman and Hinds are likely to be interpreted as binding precedent for the present lawsuit. In Guzman, the sexual harassment suffered was considered a form of discrimination in violation of the British Columbia Human Rights Act18, and the issue in Hinds concerned harassment in the form of racial discrimination in contravention to the Canadian Human Rights Act.19 Both Acts imposed a statutory obligation on employers to maintain discrimination-free employment.20 It is presently unknown whether the content of the emails received by Future Lawyer would amount to discrimination, which would essentially determine the relevance of Guzman and Hinds. In addition, since the protection from discrimination identifies employment but not enrolment in a university, it is necessary to examine the Law School's Code of Conduct for any equivalent provisions that might give rise to a duty to control. 4) Is this relationship likely to meet the test for finding a novel duty of care? Since there is no obvious precedent that establishes an affirmative duty of care owed by a university to its students, there is a considerable chance that the court will apply the full Anns/Cooper test to see if a novel duty of care will arise. The first branch of the Anns/Cooper test considers if the harm that occurred was the reasonably foreseeable consequence of the defendant Law School's act. If so, a prima facie duty will arise and the test moves on to the second branch of the test, which allows the defendant to raise any countervailing policy considerations that might negate the duty of care. ...read more.

Conclusion

13 Uzoaba v Canada (Correctional Services), [1994] CHRD No 7 at para 42, [1994] DCDP No 7. 14 Nixon v Greensides, (1992) 12 LW 1234-008. 15 Hinds v Canada (Employment and Immigration Commission), 10 CHRR 5683, [1988] CHRD No 13. 16 Guzman v T, [1997] BCCHRD No. 1 at para 101 [Guzman]. 17 Ibid at para 123. 18 Human Rights Act, SBC 1984, c 22 s 8. 19 Canadian Human Rights Act, SC 1976, c. 33 s13.1(1)(c) . 20 Human Rights Act at note 17 (s 8(1) "No person shall (b) discriminate against a person with respect to employment or any term or condition of employment, because of the ... sex of that person ..."); Ibid (13.1(1)(c) "It is a discriminatory practice, (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination", 48 (5) "Subject to subsection (6), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization.") 21 Mustapha v Culligan of Canada, 2009 SCC 27 at para 15, [2008] 2 SCR 114 [Mustapha]. 22 Criminal Code, RSC 1985, s 264(1), (2)(b). 23 Mustapha, supra note 20 at para 18; Vanek v Great Atlantic & Pacific of Canada, 48 OR (3d) 228 at paras 59-61, 180 DLR (4th) 748. 24 M'Alister (or Donoghue) v Stevenson, [1932] AC 562 (HL). 25 Young, supra note 2 at para 31; Ciano v York University, [2000] OJ No 183 at para 15, [2000] OTC 37 ("The relationship between student and university is contractual. Upon enrolment into classes, registration and tuition payment, the student enters into a contract with the university to provide higher education, access to resources and class instruction" at para 15). 26 Pacheco, supra note 8 at para 27. 27 Ibid at para 23. ?? ?? ?? ?? 5930040 CML1207G A. Dodek Page 1 of 11 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. A Critical Examination of the Concept of Breach of Duty of Care

    This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss. Elements of Negligence Claims Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. Common law jurisdictions may differ slightly in the exact classification of the elements

  2. Duty of Care.

    Kirkham v Chief Constable of Greater Manchester Police [1990] It was held that police and prison authorities owe a duty of care to a person in their custody who is a known suicide risk, to take precaution against a suicide attempt.

  1. Negligence, causation and remoteness case. To advise the claimants, Abdul, Brian and Christie, it ...

    It is no answer that the plaintiff was predisposed to psychiatric illness... The defendant must take his victim as he finds him...

  2. Explain and define the concept of "duty of care". Can it adequately distinguish situations ...

    It would be asking too much of the principle of proximity to clearly demarcate between liability and non-liability cases however this test helps the judge distinguish between cases where situations give rise to liability. When taking into consideration the interdependence and similarity between the first two limbs of the test

  1. Causation and Remoteness.

    JEB Fasteners Ltd v Marks Bloom & Co. [1983] This is the authority for negligent statements and advice. The claimant must establish not only that he placed real and substantial reliance on the defendant's advice though not only by itself a decisive part, in inducing the plaintiff to act to his detriment.

  2. Is there a Duty of Care?

    test, 14 by which Lord Bridge formulated three stages which must be satisfied in order for a duty of care to exist. These are; the damage to claimant is foreseeable, there must be a relationship of proximity or neighbourhood between the claimant and the defendant and the court considers it

  1. How courts determine causation

    99 22 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 248-249 In the case of Tremain v Pike (1969) is was held that ?the defendant was not liable as it was not reasonably foreseeable that the claimant would contract Weil?s disease.

  2. Defamation Law: A Comparative Study of the US and the UK

    to be treated as a separate defamatory offence, and thus, as a separate tort claim. This allows plaintiffs to simply slap multiple defamation claims on the accused, and tort claims can continue almost indefinitely. As a result, this rule has the impact of keeping the press in a reluctant state

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work