SMA v John XXIII College (No 2) [2020] ACTSC 211 (on AUSTLII) saw the Court consider a claim arising from a university residential college drinking event. The plaintiff claimed damages arising from sexual intercourse with NT (another student) whilst so intoxicated that she could not remember the incident, following a residential college drinking event.
The plaintiff’s allegations of negligence on the part of the college were in three parts. Firstly the defendant should not have allowed the drinking event to have occurred at all; secondly it should not have directed the students to leave the College premises during the evening in question; and thirdly the defendant’s manner of dealing with a complaint that the plaintiff made to it was inappropriate.
The Court held that the defendant was not responsible for allowing the event to proceed, but breached its duty of care in directing the students to leave its premises and in the manner in which it dealt with the later complaint.
In relation to the second allegation, the direction to leave the premises, the Court said at [253]:
The position had changed however by the time the decision was made to direct the students to leave the College. By this time the students were very much intoxicated. The College was therefore 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, and inevitably and eventually to Mooseheads. When the direction was made, therefore, the plaintiff and the other students were not exercising a conflicting autonomous decision, rather they, and in particular the female students, were vulnerable and entitled to the pastoral care of the defendant.
It was of significance that NT was one of the students sent out from John’s. He was not a stranger over whom the College had no influence. The plaintiff was not assaulted by a person she met at Mooseheads or elsewhere following the direction to leave the College. She was assaulted by a fellow student who was also one of the persons directed to leave (see [258]).
In relation to the third allegation, the defendant argued that the suggested duty would give rise to inconsistent obligations, as both persons involved were students of the college. However the Court noted that the plaintiff’s case was not that she should have been favoured over NT, or that NT should not even have been interviewed, but rather that the manner in which the defendant dealt with her was negligent. This is a separate issue to the obligation to take account of NT’s position (at [267]). The College, having received the complaint, had a duty to investigate that complaint competently and in doing so, treat the plaintiff in a manner consistent with its obligation to provide pastoral care (at [280]).
Expert psychiatric evidence attributed the plaintiff’s injuries to the sexual assault and, primarily, to the manner in which the College dealt with the plaintiff’s complaint (at [283]). The defendant did not submit that section 34 of the Civil Law (Wrongs) Act 2002 (ACT) disentitled the plaintiff from recovering damages. No submission was put that a reasonable person in the defendant’s position would not have foreseen “that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken” (at [273]).
An argument by the defendant in relation to contributory negligence did not succeed as the direction to leave the College occurred when the plaintiff was already intoxicated. She took no deliberate steps to place herself in a position of vulnerability because, when the defendant sent her and her fellow students away from John’s, she was already a foreseeably vulnerable person (at [286]).
Damages were assessed, including a single sum for aggravated and exemplary damages.