SEMINAR ON RISK AND RESPONSIBILITY
FOR EDUCATION ABROAD PROGRAMMES:
THE CARIBBEAN PERSPECTIVE
ORGANISED BY THE UNIVERSITY OF TH EWEST INDIES IN
COLLABORATION WITH QUEENS UNIVERSITY
Paper presented by Bette C. Grant-Otunla
Associate University Counsel, Legal Unit, UWI.
on
Legal Implications: Policies and Instruments
The number of students going abroad in connection with their University studies has been
increasing steadily and Universities, from the point of view of both home and host
institutions, have been forced to examine carefully issues such as the management of risk
and responsibility arising from these programmes, in order to reduce their potential
liability.
I have been asked to give an overview of the legal implications of study abroad
programmes and I intend to start by explaining the nature of the legal relationship
between the HEI and the student, as background to understanding the legal implications. I
will then touch on the tort of negligence, defining it and explaining how it arises from a
breach of a duty of care. The third section will touch on the respective responsibilities in
study abroad programmes and the fourth section will give examples of relevant cases
involving study abroad programmes. I shall end with some recommendations on good
practices to follow to minimize the risks associated with study abroad programmes.
When one speaks of legal implications of study abroad programmes the question should
arise, ‘what is the nature of the legal relationship between the higher education institution
(HEI) and the student?’
Since the late 19th century, British and US courts have
recognized the existence of a contractual relationship between the University and the
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student and the general law of contract governs the HEI/Student contract. The theory that
Universities operated in loco parentis by stepping into the shoes of the parents or
guardian of the students is now quite obsolete, mainly due to the fact that most if not all
students at HEIs have reached the age of majority and are therefore legally considered as
adults. A short step away from the in loco parentis theory is the theory of the ‘special
relationship’ in which a duty of care exists because of a special relationship existing
between the parties and some have suggested that such a special relationship exists
between a University and its students.
Apart from the contract between the HEI and the student and the theory of a special
relationship between HEI and student there is a duty of care owed by the HEI generally
towards their students occupying its premises (occupier’s liability) . There is, however,
no broad duty of care to supervise students as adults in their social, recreational or
sporting activity, except where this is organized by the University itself. In the case of
Ratcliffe v Mc Connell (1999) 1 WLR 523 a student was seriously injured diving into
the HEI’s pool. To quote the judge; ‘…..(it was) an act of. incredible folly to dive into
the shallow end in the small hours of the morning….the plaintiff was aware of the risk
and willingly accepted it, and the defendants are under no duty of care towards him’.
Duty of care – tort of negligence
In this section, I will deal with the tort of negligence which arises out of a breach of a
duty of care. A tort is a civil wrong for which damages may be awarded, as opposed to a
criminal offence for which a fine or imprisonment may be a sanction. The fundamental
basis for tort liability is negligence. .Black’s Law dictionary defines negligence as;
‘The omission to do something which a reasonable man, guided by those
ordinary considerations which ordinarily regulate human affairs do, or
the doing of something which a reasonable and prudent man would not
do’
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In other words, negligence is conduct which falls below the established legal standard for
the protection of others from an unreasonable risk of harm (Kast, 1997). To prove
negligence, the plaintiff must prove the existence of a duty of care which the defendant
did not meet and further prove that the effect of that failure was an injury to the plaintiff.
The seminal case in English law is Donaghue
v Stevenson [1932] where the
foreseeability test and the neighbour principle were both enunciated.
The gist of the foreseeability test is that duty of care is owed if it is foreseeable that if the
defendant does not exercise care, the plaintiff will be harmed. Lord Atkin, the judge in
that case said …….’The rule that you love your neighbour becomes in law, you must
not injure your neighbour and the lawyer’s question is then, who is my neighbour?
Answer – persons who are so closely and directly affected by my act that I ought to
have them in contemplation as being so affected when I am directing my mind to the
acts or omissions which are called into question’.
‘Carelessness’ then is the main ingredient of this tort and the concept of ‘foreseeability’,
proximity and public policy are all necessary elements.
To bring this home, if students are being transported in a university vehicle or if students
are using equipment in a laboratory, a duty of care is owed to ensure a safe journey and
that the laboratory equipment is safe. So, having established the existence of a duty of
care, a breach arises if there is a failure on the part of the party owing the duty to meet the
requisite standard of care. The standard of care required by the Courts is what is
reasonable in the circumstances, not the standard of the majority but the standard of a
reasonable defendant.
A relevant case is Tuttle v University of Edinburgh (1983) where damages were
awarded to a student who had obtained crippling injuries in an accident when on a
university field trip. The University was held to be negligent in not properly preparing its
students for tree climbing when collecting specimens. Damages were assessed on the
basis of trying to put the student back in the position in which he would have been, had
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the negligence not occurred. The court considered the reduced quality of life, loss of
potential earnings, cost of future medical care and
also factored in a finding of
contributory negligence against the injured student in that he was partly to blame for his
injuries.
Responsibilities in study abroad programmes
I am starting out from the position that both home and host institutions have varying
responsibilities towards students who undertake study abroad programmes. The
allocation of responsibilities would largely depend on the terms of the exchange or
cooperation agreement between the two institutions, home and host. Exercising the duty
of care which they have under the law, the home institution would normally have the
responsibility of sending students to ‘safe’ destinations, meaning that students would not
normally be sent to a region where a war was been waged and where civilians were in
danger. If the home institution was responsible for overseas accommodation then they
would try ensure that the accommodation provided was safe and secure. They would also
do a pre - departure briefing for their outgoing students on what conditions to expect and
prepare them adequately for their experience abroad with details on health care coverage,
medical facilities, local customs, safety issues, if possible using nationals of the host
country and/or students who had already been on exchange to that country.
Again, exercising the duty of care, the host institution would be responsible for receiving
the incoming student and for giving a comprehensive orientation informing the students
about the University, its regulations, health facilities, security, local customs, relevant
local laws eg under-age drinking in North America. The host institution might have an
office that is dedicated to international/exchange students which would be responsible
for assisting these students and generally be their first port of call in any difficulties.
The contract between the HEI and the exchange student
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Mention was made previously of the contract between the HEI and the student and this is
as relevant for the exchange student as for any student. It is important to remember that a
contract is not only created when two parties sign a document. For example, the
representations made by a University in its student material, catalogues, web sites etc.
have been held to create contractual entitlements in students who relied on those
representations. In other words the students have paid their money in reliance upon
receiving what the catalogues stated the University would provide and are therefore
entitled to receive it. It is therefore very important that Universities put out correct
information and do not market themselves as providing what they cannot provide.
Closely tied to this point is the importance of the quality of any information give by
University officials, whether it be in advertising/marketing, during the orientation or any
other time. Those giving out information must be skilled and in a position to give correct
information. Incorrect information given out
by officials who are representing the
University may cause the HEI to be liable under the doctrine of vicarious liability, which
is when an employer is liable for the negligent act committed by his or her employee
during the course of his or her employment.
Cases relating to study abroad programmes
We will now examine some cases which have arisen relating to liability in study abroad
programmes. Some went to court and some were settled out of court. They are all US
cases except one which involves a US student who sued her University in Scotland. In
the Semester at Sea case, a group of students were sent to Delhi instead of Agra in a last
minute mix up, and then had to take a 6 hour bus ride overnight to Agra. Unfortunately,
during the trip the bus had an accident and four students and a faculty member from the
University of Pittsburg, the home institution died. Multiple law suits are still pending and
one of the arguments used is that ‘everyone ought to know that the road from Delhi to
Agra is a death trap by night’ .At this point I cannot say how the case will end. However
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it shows the level of detailed knowledge that study abroad supervisors may be expected
to have.
Another case which illustrates the principle of the duty of care is McLean v St.
Andrew’s University, where an American national who went on a study abroad trip
alleged that the University was negligent in sending her to Odessa during her modern
languages term abroad. She was raped one evening as she walked on the beach. The
Court held that she had received a general warning of the level of criminality in the city
and she had chosen to go to that location at that time of night. The Court further said that
‘if the University had required her to go to a battle zone, say Baghdad or the Gaza Strip,
they might have rendered themselves responsible for her becoming the victim of
foreseeable acts of violence. No doubt, too, if the alleged crime had happened within one
of the hostels controlled by the Odessa University authorities, St. Andrew’s might,
depending on the exact circumstances, be liable’. Under these circumstances however,
the University was not liable.
Another interesting case which was settled out of court related to a student from a small
Christian college in California who went on a study abroad to Costa Rica organized by
the Christian College Coalition to learn about the history, geography and culture of
Central America. Although the students stayed in or around the capital city of San Jose,
as part of the fellowship, each student was obliged to spend two weeks assisting Costa
Ricans in a service project. This particular student selected an environmental camp which
was an iguana preserve near the border with Panama, where she
lived with the
indigenous Indians. During her two week stay she contracted a rare skin disease, caused
by bites of a sand fly and potentially disfiguring if left untreated. She brought an action
against her college and the Christian College Coalition which had sponsored the
programme, citing their failure to protect her against this dangerous condition and failing
to adequately warn her of the disease.
In cases of negligence as we know, the plaintiff has to prove that a duty of care was
owed to him or her, that there was a breach of that duty and that the breach led to some
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injury to the plaintiff and that the plaintiff actually suffered damages (eg medical costs,
emotional damage, pain and suffering.) There was no dispute that the college owed a duty
of care to the student while she was in their general care and custody and it was also not
disputed that she has caught this disease while in the programme, however the real issue
was whether the college knew of the existence of this disease or should have known and
whether they failed to protect her..
After a great deal of research, attorneys for the college argued that this disease was not
noted as a risk at the time when the student was going to Costa Rica and there was no
warning relating to this disease. Staff members and programme leaders were not even
aware of this skin disease and there had never been a problem with students who had
gone to this region before. The question of the type of mosquito net provided and the size
of the holes, the type of insect repellant provided, all came up in discussion. In the end
the case was eventually settled out of court.
The last case I will present, Erica Eisenberg v Earlham College, relates to a female
college student, a Japanese studies major, who claimed she was sexually harassed and
raped in Japan by the head of the household where she was assigned to stay. She claimed
that the University was not responsive after she repeatedly complained of the harassment
to the officials of both the home and host institution and sued her college for US$3
million damages. Her lawyers claimed that the policies in place for dealing with sexual
harassment applied to all programmes of the college and the programme in Japan
qualified as such. Issues raised included the fact that the student had signed a release
prior to entering the programme, and also the effect of US laws (against sexual
harassment) which she was seeking to apply in Japan. The case was recently settled out
of court for an undisclosed amount.
Recommendations
In conclusion I will list some measures which I regard as good practices which
Universities might follow in order to minimize liability in study abroad programmes:-
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1.
Formulate well drafted exchange /collaborative agreements with internationally
recognized and accredited institutions. Reducing University exposure to liability should
be of paramount importance and agreements should clearly state who has responsibility
for what areas.
2.
Establish well organised, well staffed International Student Offices which will
have the responsibility to perform pre- departure briefings (outgoing students) and post
arrival orientation (incoming students)
giving all relevant information and helping
students to prepare themselves before departure and settle in on arrival at their
destination. The importance of correct information given by well trained professionals
cannot be stressed enough as the University can be held liable for the incorrect
information given by an employee.
(a)
Outgoing briefing would be about courses to be taken, credit transfer,
accommodation, health/medical and insurance issues, cultural norms, local laws.
(b)
Extensive incoming briefing would be similar, giving information on University
regulations, course credits, safely concerns, resident hall regulations, local mores, laws,
Students should have the possibility of 24 hour connection to an international student
coordinator, be advised to register at their embassy or high commission. In all cases
written information, videos, cds are recommended .
3..
Some institutions have their students sign an informed consent form. This is akin
to a waiver, upon which I do not recommend an institution to rely. The informed consent
form, on the other hand ensures that the student participates to some degree in the
responsibility of the risks involved. Students are therefore asked to sign a document
saying that they have read and understood the HEI’s procedures. It is intended that the
HEI provide all the pertinent information to students so they can make an informed
decision as to whether or not to participate in the study abroad programme It is of itself
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not a panacea for all liability but could assist with compliance with the procedures and
also is evidence that the HEI took all reasonable steps to ensure the students safety.
4.
The establishment of emergency support and crisis management is another good
practice to have. This should identify emergencies and establish a protocol for such
emergencies.
5.
Adequate health insurance is essential to avoid exposure of the HEI and the
student from burdensome health care costs. I would strongly recommend that outgoing
students be informed of the insurance policy which will cover them while they are abroad
and advise them to improve upon it if they think it is in any way inadequate. Optimally,
insurance coverage should include medical evacuation in cases of serious injury where
the student is flown back to his or her home country and repatriation of remains in cases
of demise.
6.
The case of Erica Eisenberg v Earlham College underscores the importance of
scrutinizing the policies of the host institution. The home HEI should be aware of all
policies which could impact on their students traveling abroad and actual site visits are
also recommended . A strict screening of households into which students will be sent is
also essential.
In conclusion, I would emphasis that there are a multiplicity of areas to consider when
dealing with study abroad programmes and HEI’s should ensure that they examine all
the risks associated with these programmes in order not to find themselves liable.
Bibliography
Richard Kast; In loco parentis and the ‘Reasonable Person,’ International Educator, vol.
VII, No. 1 1997.
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Eric LeBlanc; Limiting Risk and Responsibility in study abroad: are waivers good
enough?, College Quarterly, Fall 2003
David Palfreyman; Students Abroad: out of sight, out of mind and beyond the
University’s duty of are in English law?, Higher Education Law updates, Oxford Centre
of Higher Education policy studies.
Tyrone Maho; Looking at health and safety issues from the perspective of a Trial
attorney, SAFETY On line newsletter, vol. 2, Number 2, Winter 2000.
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