John XXIII College v SMA  ACTCA 32 (on AUSTLII).
With thanks to Hilbert Chiu for drawing my attention to this decision, which I had missed when the Court Of Appeal (ACT) published its reasons on 29 June 2022.
A student (SMA) who lived at a residential college of the Australian National University attended a social event called Pub Golf. The event involved the consumption of alcohol, with the students moving to several different venues or “holes” around Canberra city. It commenced at the College and concluded at Mooseheads nightclub. The student claimed that during this event, at some time in the night and while intoxicated, she was sexually assaulted by another resident of the College (NT) in the alleyway alongside Mooseheads.
The primary decision
The student’s claim at first instance involved three broad allegations of negligence against the College – for permitting the event to proceed, for directing the students to leave the College on the evening in question and, later, for the inappropriate management of her complaint to the College.
The primary judge held that the College had breached its duty of care in two ways – both in directing the students to leave the College on the evening in question (the first breach), and in the handling of SMA’s complaint (the second breach).
The College appealed in respect of liability, interest and costs. The student cross appealed on quantum and costs.
The Court of Appeal published a single judgment and held that primary judge erred in finding that causation was established in respect of the first breach, and in the assessment of damages for past and future economic loss. However, no error was established in relation to the primary judge’s finding that the College breached its duty of care in the handling of SMA’s complaint and that was the more significant cause of the plaintiff’s psychiatric injuries and disability (, ).
In relation to the cross-appeal, no error was established with regard to the general damages amount awarded by the primary judge and in light of the findings on the appeal and the consequent reduction in the damages awarded to SMA, the costs argument based on an offer of compromise fell away.
The result was that SMA still succeeded in the action she brought in negligence (the second breach), but the damages awarded were reduced from the $420,201.57 to $267,500.
The first breach & causation.
At the risk of oversimplifing, the causation issue in respect of the first breach, the Court of Appeal held that in respect of the direction to leave the College, the evidence did not establish that a different course would have been taken by the students generally, and SMA or NT specifically, had the direction to leave the College not been given (). At noted at :
As the College submitted, there was no evidence to establish that a warning of suspension or expulsion or a threat of fines to residents who were already in a state of intoxication would have been an effective precaution to dissuade them from leaving the College. Without more, the finding made by the primary judge rises no higher than a statement of other precautions that may have been taken. On the evidence before the Court, we accept that it was not established that those were the precautions that a reasonable person in the same position of the College would have taken.
The second breach & causation.
The Court of Appeal held that there can be little doubt that the College had a duty to investigate complaints by residents against each other competently (). Whatever a particular resident’s complaint, but particularly where the complaint is one of sexual assault, the subsequent mismanagement of that complaint is obviously a matter that may have an impact on the complainant’s psychological state.().
The Court went on to consider what might be called the balancing exercise in respect of the student SMA and the student NT. The Court said at :
Contrary to the College’s submissions, the circumstances here do not involve inconsistent or irreconcilable duties. As the College accepted, it was under a contractual duty to inquire into and resolve complaints in accordance with the Handbook and to accord procedural fairness to both residents involved. There was no suggestion before the primary judge that the procedures in the Handbook were inadequate. The College was also under a duty of care to act for the welfare of its residents. Acting for the welfare of its residents included handling complaints made to it in accordance with what was set out in the Handbook.
The Court concluded that instead of taking an independent role and ensuring that the appropriate procedures as set out in the Handbook occurred, the Head of College became investigator, adjudicator, and the support person for NT (), though at this point the reasons are rather brief but refer back to reasons of the primary judge, save to mention expressly the comments made to SMA during a meeting on 12 November 2015, which were highly inappropriate ().
On causation issues, the College argued that the evidence did not establish the comments made by Mr Johnston caused SMA’s psychiatric injury. It asserted that the evidence (both lay and expert) was that SMA’s psychiatric injury arose as a consequence of the assault and was exacerbated by her perception of injustice arising from the College’s failure to believe that she had been sexually assaulted, and failure to “do something about” the assault allegation, by which she meant expel NT from the College. ().
The evidence given by SMA was that Mr Johnston’s handling of the complaint, and in particular (but importantly, not limited to) his comments at the meeting he had with SMA … caused her to become “pretty distraught”, and to feel as if Mr Johnston blamed her for getting drunk. SMA’s evidence, which was generally accepted, was that the consequence of Mr Johnston’s conduct was to give her the impression that she was responsible – that the assault was her fault – and that thought has never left her. ().
The Court concluded at :
It was not the case that SMA’s deteriorating mental health, to the point where she developed a recognised psychiatric injury, was a product of the assault itself and her feeling that she had not been believed. As SMA submitted, the sense of injustice felt by SMA included that Mr Johnston’s comments indicated he did not believe her, but that was itself a product of the College’s mismanagement of the complaint and in any event, what SMA experienced was broader than simply whether or not she was believed. As seen from the extracts of the pleading set out earlier in these reasons, SMA felt she was not taken seriously. It is in that sense that the pleading describes her concerns being “dismissed”, namely, treated as unworthy of serious consideration. She felt blamed. She felt unsupported. Her mental state was a direct product of the College’s mismanagement of the complaint and there was no error in the primary judge so finding at .
The Court went on to discuss damages.