‘A hazy shade of liability’: duty of care of universities to prevent hazing

Hazing is an ‘inhumane’, cruel, and barbaric practice that is rampant in higher educational institutions. 2017 was a ‘deadly’ year in the United States and India. In Australia it is ‘endemic’. The US has criminalised it. In India there are university anti-hazing regulations and hazing has been largely criminalised. These steps have proved inadequate. In Australia it has been proposed that hazing be criminalised and that there be stronger university governance. In the US, traditionally a no duty rule was applied in the law of negligence. Universities did not owe a duty to students for harm to students as a result of third party conduct. This changed in 1991 when it was held that universities owe a duty to students to prevent hazing. We submit such a duty applies in India and Australia. An ‘inherent’ aspect of negligence is that A is generally under no duty to prevent harm to B by C. For a duty to be imposed is ‘exceptional’. It arises in the case of institutions as they have assumed responsibility for student safety and often have capacity to control many aspects of student life. Students should have private recourse against universities for their negligent failure to prevent hazing.