27 August 2020: Developments in institutional liability for sexual assault: SMA v John XXIII College (No.2) [2020] ACTSC 211

Originally published on the Australian Lawyers Alliance blog

 

The law around organisational liability for sexual assaults continues to evolve following the Royal Commission into Institutional Child Sexual Abuse. Significant legislative changes have made it easier for historical child sexual assault victims to sue institutions. At the core of these legislative changes is a recognition that children are vulnerable, and that organisations should in some circumstances be held liable for intentional torts that are committed against them.

The matter of SMA v John XXIII College (No. 2) [2020] ACTSC 211 (SMA), recently decided in the ACT Supreme Court, shows that in some circumstances the common law is evolving to recognise that institutions should also be held liable for the intentional torts of another person (even if they are not an employee) against vulnerable adults. SMA also underlines that organisations can be held liable for aggravated and exemplary damages not just for the assaults, but also for the institutional response once an assault has been reported.

Facts  

The plaintiff was studying at Australian National University and lived on campus at John XXIII College. Between 6 and 7 August 2015, the plaintiff participated in a bar-hopping event called the ‘Pub Golf event’, whereby students began consuming alcohol on-campus and were then instructed by college officials to leave the campus and move on to a bar not affiliated with the college. In the alleyway next to the off-campus bar, another student, referred to as ‘NT’, had non-consensual sexual intercourse with the plaintiff when she was intoxicated. The plaintiff had no recollection of the sexual assault but was returned to her room where she woke to find that her jeans and underwear had been pulled down.

Ten days later the plaintiff’s friend informed her of the sexual assault, after she heard NT bragging about the incident to his friends. The plaintiff recorded a conversation with NT where he admitted that the assault had occurred. The plaintiff then had three meetings with Head of College Mr Johnston and his deputy Ms Curtis. In the first meeting, the plaintiff made a request to Mr Johnston and Ms Curtis for the defendant not to renew NT’s residential contract and the plaintiff was assured that the matter would be investigated. Mr Johnston informed the plaintiff in the second meeting that, when questioned, NT had denied that he had assaulted the plaintiff. In the third meeting, the plaintiff provided Mr Johnston with the recording of NT’s admission. Mr Johnston told the plaintiff that he was ‘not sure anything did actually happen’ and implied that the plaintiff’s alcohol consumption was an issue.

 

The plaintiff claimed that the defendant breached its duty of care in two ways: first by directing intoxicated students to leave its premises; and second in its handling of the complaint. In relation to these events, the plaintiff sought general damages, past and future economic loss, medical expenses, and aggravated and exemplary damages.

Decision 

The plaintiff’s additional claim that the defendant breached its duty of care by allowing the Pub Golf event to occur at all was rejected by Elkaim J, who stated that the defendant was not responsible for allowing the event to proceed. His Honour held, however, that the plaintiff was entitled to recover damages in relation to the other two claims.

1. Direction given to leave the defendant’s premises

While the defendant accepted that it owed the plaintiff a duty of care, it maintained that this duty ‘was no more than that of an occupier’,[1] as set out in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. Elkaim J, however, agreed with the statement in Waters v Winter and The University of New England [1998] NSWCA 248 that the university was bound by a ‘duty of care towards the students to protect them from a risk of injury of which it was aware or ought to be aware’. His Honour found that this duty was consistent with the pastoral protection that the defendant purported to offer its students.

The defendant submitted that ‘the plaintiff was an adult, that she was drinking voluntarily and that she attended the Pub Golf event … on her own volition and choice’.[2] The defendant relied on CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No. 14 Pty Ltd v Scott [2009] HCA 47 to argue that the duty of care upon which the plaintiff was relying was inconsistent with her autonomy. Elkaim J held that at the time the students were instructed to leave the premises, they were already overly intoxicated.[3] His Honour found that the defendant was ‘directing the students, over whom it had assumed a pastoral role, to leave the relative safety of the John’s premises and venture out to other venues.’[4] Elkaim J stated that, at this time, the plaintiff was vulnerable and therefore ‘entitled to the pastoral care of the defendant’.[5]

Elkaim J dismissed the defendant’s argument in relation to contributory negligence as the direction to leave the premises was made when the plaintiff was already intoxicated. His Honour held that the plaintiff did not take any steps to place herself in a position of vulnerability because she was already a ‘foreseeably vulnerable person’ when she was directed to leave.[6]

The defendant further submitted that it could not be held liable for NT’s actions. The defendant sought to rely on the High Court decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 to argue that its duty of care did not extend to the criminal conduct of a third party. Elkaim J held that the direction to leave the premises was given to the students when it was known that the students were intoxicated and would likely become more intoxicated.[7] Further, NT was one of the students directed by the defendant to leave the premises.

Elkaim J adopted the approach set out in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors [2009] NSWCA 258 and held that the duty of care owed by the defendant to the plaintiff extended to the direction given to leave the premises.[8] His Honour stated that the duty owed to the students included their welfare, and as the defendant knew of the possible consequences to students of further intoxication, the direction to leave constituted a breach of its duty of care.[9]

2. Manner in which the defendant dealt with the complaint

Elkaim J found that there was ‘no need to extend the duty beyond that which already exists, namely a duty to act for the welfare of the students’.[10] The defendant submitted that Mr Johnston had an obligation to investigate both sides of the complaint, and because both parties involved in the assault were students he was faced with inconsistent obligations.[11] The defendant argued that the existence of these inconsistent obligations was a valid reason to deny that the duty existed.[12] Elkaim J dismissed this argument and stated that the plaintiff’s case was not that she should have been favoured over NT, but that the manner in which Mr Johnston dealt with her complaint was negligent.[13]

Elkaim J found that Mr Johnston appeared to have appointed himself as NT’s support person and consequently adopted a stance intended to protect the defendant’s reputation.[14] After receiving the complaint, the defendant had a duty to investigate the allegations competently and to ‘treat the plaintiff in a manner consistent with its obligation to provide pastoral care’.[15] Elkaim J held that as Mr Johnston had a wealth of experience in dealing with students and had previously dealt with complaints of sexual assault, it was foreseeable that the plaintiff was ‘susceptible to psychological harm’ if the complaint was not dealt with properly.[16] His Honour held that Mr Johnston’s comments that he was not ‘even sure that anything did happen in the alleyway’ were a departure from the pastoral duty of care he had assumed as Head of College.[17]

Damages

Elkaim J made a total award of $420,201.57 to the plaintiff. It is important to note that His Honour calculated the plaintiff’s future economic loss using the 3% tables to reach an award of $219,502.53 for future economic loss. Further, His Honour made an award of $30,000.00 for aggravated and exemplary damages, as he deemed the defendant’s approach in dealing with the plaintiff’s complaint to be swayed by its need to protect the College’s reputation ‘at the expense of the plaintiff’s welfare’.[18

By Angela Sdrinis
Director at Angela Sdrinis Legal

Assisted by Georgia Spiridonos
Law Clerk at Angela Sdrinis Legal 


 

[1] SMA v John XXIII College (No 2) [2020] ACTSC 211, [246].

[2] Ibid, [250].

[3] Ibid, [253].

[4] Ibid.

[5] Ibid.

[6] Ibid, [286].

[7] Ibid, [258].

[8] Ibid, [260].

[9] Ibid, [262].

[10] Ibid, [265].

[11] Ibid, [266].

[12] Ibid.

[13] Ibid, [267].

[14] Ibid, [269] and [271].

[15] Ibid, [280].

[16] Ibid, [281].

[17] Ibid, [282].

[18] Ibid, [319].

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