A new judgment provides useful commentary in relation to an investigation into allegations of sexual assault, including the necessity to avoid partiality from one person acting in many roles in the investigation. The decision also highlights the importance of counselling following disclosures of abuse. We discuss the case and implications.

The case, SMA v John XXIII College (No 2) [2020] ACTSC 211, has far-reaching implications for universities, colleges and schools. Universities, colleges and schools should consider whether they are condoning certain events and, for example, a culture of excessive drinking. They may also owe duties to students if they directed (or even permitted) students to leave their premises while intoxicated. It is also clear Universities and Colleges owe a duty of care beyond simply that of an occupier, and could owe a duty to provide pastoral care with reasonable care.

Background to the case

In the recent decision of SMA v John XXIII College (No 2) [2020] ACTSC 211, the Supreme Court of the ACT (ACTSC) found that a university college breached its duty of care to one of its students, SMA, who was allegedly sexually assaulted at an event called 'Pub Golf'. The College was held negligent in directing students to leave the College in an intoxicated state (including SMA and her alleged assailant) and in the manner in which it dealt with her complaint.

  • SMA was a student at the Australian National University (ANU) in Canberra, ACT She lived at a College operated by John XXIII College (John's), which is affiliated with ANU.
  • On 6 August 2015, SMA attended a 'Pub Golf' event, which was a 'drinking spree' that began with 'pre-drinks' at John's and ended at a licensed bar, Mooseheads (with two intermediary stops).
  • The itinerary for the event on Facebook (created by a student and other members of the Residents' Association) detailed the amount of alcohol to be consumed at each venue during the event (including two drinks on each of the six floors of the University Bar).
  • Students were encouraged to leave John's by a Night Porter after they were found to be heavily intoxicated, to the extent that some students were vomiting.
  • At some point in the night, after proceeding to Mooseheads, SMA alleges that she had non-consensual sexual intercourse with a male resident of John's in the alleyway alongside Mooseheads. SMA had no memory of the alleged assault as she was highly intoxicated, and only discovered it had occurred around 10 days later. SMA informed staff members of John's, including the Head of College, of the alleged assault and requested that the male student's residential contract for the following year not be renewed. SMA was told that John's would look into the matter and provide a response.
  • John's investigated the complaint with the male student, who denied the alleged assault occurred.
  • SMA commenced proceedings in the ACTSC against John's and John XXIII College Resident's Association Inc (Association), which is the incorporated student association at John's. SMA alleged that, since finding out about the alleged assault, she has suffered psychological injury and loss. Her claim was brought pursuant to the Civil Law (Wrongs) Act 2002 (ACT). The matter proceeded to hearing, and resolved as against the Association on the second day of the hearing.

Claim

SMA held John's responsible for her psychological injury and loss on the basis that:

  1. John's should not have allowed the Pub Golf event to occur;
  2. John's should not have directed the students to leave the College premises during the evening; and
  3. John's manner of dealing with her complaint was inappropriate.

Allowing the event to occur

John's argued that it was unaware that the Pub Golf event was going to occur. A student witness accepted that some events had been banned by John's, John's was required to give approval for other events, and some events were run secretly by the Association.

Nevertheless, the Court held that the events appeared to be sanctioned by John's, in that not only did John's condone events like Pub Golf, but it fostered the consumption of alcohol as a normal part of College life by sanctioning events and having a general approach to excessive drinking at John's. The Court held that the picture painted by a student of alcoholic consumption and misbehavior within John's was so vivid that John's management must have been aware of it, and management also seemed to have approved some of it, and to the extent that there was no approval, or even a supposed condemnation or banning of an event, it was clear that the behavior was condoned by the College.

The Court also held that the event appeared to be sanctioned by John's as the events were on John's grounds and included the Senior Residents, who had been appointed by the Head of College to assist in the administration and conduct of John's. More specifically, the Court held that the close relationship between John's and Senior Residents was enough to import knowledge of the event to John's. Further, the Association had taken out insurance to cover the event.

John's admitted that it owed SMA a duty of care, but challenged the extent of the duty and whether it had been breached. More specifically, John's argued that its duty of care extended to no more than that of an occupier. Contrary to this, the Court referred to evidence given by the Head of College that he advised the male student that he was his designated support person and asked him if he wished to have counselling. The Court held that this meant the Head of College assumed a partisanship role, but it also was consistent with John's duty of care to provide a pastoral service to students (which is much broader than the mere duty of an occupier).

However, the Court ultimately found the duty was not breached in allowing the event to occur. The Court held that permitting the event to go ahead and preventing SMA from consuming alcohol at the event would have been in conflict with her autonomous election to drink alcohol at that event. Therefore, there was no breach in allowing the event to go ahead.

Directing the students to leave the College

Students gave evidence that a Night Porter told students at the College 'It's time to go out' after which they left the College. The Court noted that the Night Porter was not called to give evidence, such that the Court drew an inference his evidence would not have assisted John's defence. The Head of College gave evidence that he had not been advised that the students were highly intoxicated, and that if he had known how intoxicated they were, he would not have directed the students to leave the premises. The Court was not persuaded that the Head of College was unaware of the level of intoxication of students at the College.

In contrast to the conclusion regarding allowing the event to occur, the Court held that when the direction was given to students (over whom John's had assumed a pastoral role), the students were not exercising a conflicting autonomous decision, but rather they, and particularly the female students, were vulnerable and entitled to the pastoral care of John's.

John's also submitted that it could not be held liable for the actions of the male student because its duty of care did not extend to the criminal conduct of a third party. In response to this argument, the Court held that the male student was not a stranger over whom John's had no influence, and that when John's gave the direction to students to leave the College, it was given with the knowledge that they were intoxicated and were likely to become even more intoxicated (and the male student was one of those persons directed to leave the College). The Court also held that John's ought to have exercised control over the male student, as one of its students and in accordance with its pastoral duty of care.

As a result, the Court held that the duty of care owed by John's to SMA did extend to the direction given to leave the premises, and that directing the students away from the premises when they were aware of the possible consequences of the over consumption of alcohol by already intoxicated students was a breach of its duty of care. The Court also held that the care for students by a residential college would enhance the existence of a duty of care.

In terms of foreseeability of the risk of harm, the Court held that John's was in possession of all relevant information to exercise the standard of care required of a reasonable person, and that the risk of sexual assault upon an intoxicated young woman was foreseeable and, having regard to the well-known behaviour of intoxicated students, the risk was not insignificant. The Court also held that a reasonable person faced with such knowledge would have taken precautions to avert the risk, and the Court referred to the Head of College's evidence that he would not have directed the students to leave the College if he had known how intoxicated they were.

Investigating SMA's complaint

The Court also held that John's had a duty to investigate the complaint competently and treat SMA in a manner consistent with its obligation to provide pastoral care. The Court held that the manner in which the Head of College dealt with SMA and her complaint was negligent, as not only did he appoint himself as a support person for the male student (the Court found someone else should have provided support), but he also took over the role of investigating the complaint from the Deputy Head of College (the Resident Handbook placed the investigation obligation on the Deputy Head of College). Further, the Court held that it was likely that the Head of College adopted a stance designed to protect John's reputation and undermine SMA's confidence so that she would not continue with her complaint.

The Court was satisfied that it was plainly foreseeable that a person making such a complaint is vulnerable and susceptible to psychological harm should the complaint be improperly dealt with, and comments made to SMA were a massive departure from the pastoral duty of care that the Head of College had assumed.

No contributory negligence

The Court rejected the argument SMA was contributorily negligent, concluding that the direction to leave John's had occurred when SMA was already intoxicated. Therefore, SMA took no deliberate steps to place herself in a position of vulnerability because, when John's sent her and her fellow students away from John's, she was already a foreseeably vulnerable person.

Damages awarded

The Court found in favour of SMA and ordered damages in the sum of $420,201.57 (plus SMA's cost of proceedings) comprising of:

  • $90,000 for general damages;
  • $4,500 for interest on past general damages;
  • $68,199 for past economic loss;
  • $219,502 for future economic loss;
  • $500 for past medical expenses;
  • $7,500 for future medical expenses; and
  • $30,000 for exemplary and aggravated damages (collectively).

The Court awarded aggravated and exemplary damages on the basis that John's assumption of a dual role in dealing with SMA's complaint was a contumelious disregard of her entitlement to fair treatment, as John's approach was influenced by its desire to protect its reputation at the expense of SMA's welfare, and in doing so, its conduct accentuated the suffering of SMA.

This case offers some important lessons for universities in relation to an investigation into allegations of sexual assault. This includes the requirement to avoid partiality from one person acting in many roles in the investigation. It also highlights the importance of counselling following disclosures of abuse.