The ACT Supreme Court awarded damages of $420,000 against a residential college for psychological injury to a University student who alleged that she had been sexually assaulted by another student (off campus) while intoxicated.
Barry.Nilsson acted for the second defendant in the matter, and successfully negotiated a judgment in its favour.
The defendant admitted that it owed a duty of care to the plaintiff, so the question of breach was in issue, specifically:
- Whether the defendant was in breach of its duty of care by allowing the “Pub Golf” event to occur, and in directing students to leave the premises while intoxicated;
- Whether the defendant was in breach of its duty of care in the manner in which it investigated the plaintiff’s complaint.
The plaintiff commenced proceedings against John XXIII College (College) as first defendant, and the John XXIII Resident’s Association (RA) as second defendant, with respect to psychological injuries arising from an alleged sexual assault.
The plaintiff was a student at the ANU, residing at the College at all material times. She participated in a “Pub Golf” event arranged by the RA on 6 August 2015. The Pub Golf event was a drinking event whereby students commenced drinking at College, and then moved to various licensed premises. The “rules” of the event prescribed that they would drink a certain number of drinks at each venue, including a bar known as Mooseheads. The evidence was that the students became very intoxicated at the College section of the event, and at around 9pm were asked to leave the College by the Night Porter, so the College could be cleaned.
Approximately 10 days after the Pub Golf event, the plaintiff was informed by a friend that another student had been “boasting” about having had sexual intercourse with her in the alley outside Mooseheads. She had no memory of this, and approached the student (known during the proceedings as NT), to ask what had occurred. He admitted during the course of the conversation that they had had sexual intercourse in the alley, and the plaintiff recorded this conversation on her mobile phone.
She reported this to the College, and the incident was investigated by Mr Johnston, the head of College. Mr Johnston was provided with a copy of the recording, however on subsequent questioning, NT denied any knowledge of what occurred in the alley, indicating that he was too intoxicated to recall. The plaintiff had various meetings with Mr Johnston during the investigation, during which time he allegedly made comments to her such as “I’m not really sure anything happened in the alleyway”, “the other concern is how you managed to get so drunk”, and “sometimes when boys are drunk they can be arrogant but are often underperformers”.
The plaintiff alleged that the comments made by Mr Johnston, and the College’s investigation of her complaint generally, caused her significant ongoing psychological sequelae.
The decision at trial
The plaintiff’s case against the RA resolved on day 2 of the hearing, and the hearing proceeded thereafter against the College only.
Justice Elkaim was satisfied on the balance of probabilities that a sexual encounter occurred in the alley, which lacked the consent of the plaintiff due to her state of intoxication. He found that although the “Pub Golf” event had been banned by the College, the College generally condoned such events, and the College “held its reputation as a haven for the excessive consumption of alcohol as an accomplishment, rather than a mark of shame”.
While he did not find the College liable for failing to prevent the “Pub Golf” event from occurring, Elkaim J found that the College’s duty had a pastoral care component, and in directing the students to leave the College when they were in a state of intoxication, particularly “vulnerable female students”, the College was in breach of this duty. He distinguished the case from the decision in Modbury Triangle Shopping Centre v Anzil (2000) HCA 61, by finding that the distinguishing point in this case, was the direction to leave the College in the knowledge that the students were intoxicated, and likely to become more intoxicated, in circumstances where the group of students contained “two elements of risk – drunk young men and vulnerable, intoxicated young women”.
As regards the investigation, Elkaim J found that after receiving the complaint, the College had a duty to investigate it competently, and in doing so, treat the plaintiff in a manner consistent with its obligation to provide pastoral care. He found that the comments made by Mr Johnston to the plaintiff were entirely inappropriate, and a “massive departure” from the pastoral duty of care that he had assumed as Head of College.
He found no contributory negligence on the part of the plaintiff on the basis that the College’s “negligent direction” to leave the College occurred when the plaintiff was already intoxicated. He found that she took no deliberate steps to put herself into a position of vulnerability, because when the College sent her and her fellow students away from the College, she was already a foreseeably vulnerable person.
He awarded her damages in the sum of $420,000, including $30,000 with respect to aggravated/exemplary damages.
This case has important ramifications for residential colleges. Elkaim J found the duty owed by residential colleges to have a strong pastoral care component, and it is therefore important that this notion informs the overall culture and activities conducted at a residential college, notwithstanding the fact that the residents are young adults.
The case also has important implications for any organisation which may need to conduct an investigation into serious allegations involving its students, staff or members. It would be prudent for the organisation to allocate a support person for each party involved, and to ensure that any investigation is independent and impartial, with the investigator refraining from disclosing his or her own personal views on the issues involved.
Update July 2022: The ACT Court of Appeal recently partially allowed an appeal by the College, but the lower court’s liability decision about the way the complaint was handled was upheld. SMA’s cross appeal on general damages was unsuccessful, however the College’s appeal with respect to damages awarded for economic loss was successful, and the damages award was reduced accordingly.