John XXIII College v SMA [2022] ACTCA 32

A former student of the Australian National University who successfully sued John XXIII College for a breach of its duty of care after being sexually assaulted in 2015 has had her damages cut by more than $150,000. On 29 June 2022, Acting Justice Verity McWilliam stated that she and the other two ACT Court of Appeal Justices had set aside the original award of $420,000 and instead ordered the amount of $267,500 to be paid by the ANU-affiliated College.

The original Supreme Court decision in 2020 concerned a claim in negligence made by the student, known as ‘SMA’, against the College concerning a social event that occurred on 6 August 2015 called “Pub Golf” while she was a resident at the College. The event involved the College residents moving to different venues or “holes” around Canberra city, with the participants being expected to drink a certain number of drinks to make “par”. At some point in the night, the plaintiff was sexually assaulted by another College resident in an alleyway near Canberra nightspot Mooseheads.

Ultimately, Justice Michael Elkaim held that the College had breached its duty of care. Whilst it was held that the College was not responsible for allowing the Pub Golf event to take place, it was held that it had breached its duty by directing students to leave the ANU campus the night of 6 August 2015 after they had commenced drinking. The Court also held they were negligent in their handling of SMA’s complaint following the assault. Damages were awarded in the total sum of $420,201.57, including exemplary and aggravated damages of $30,000.

In the appeal, the College contested facts raised in the original proceedings, including that SMA had been intoxicated at the time she left the College, that the College knew about or condoned “Pub Golf”, that the Head of College at the time, Geoff Johnston, adopted a stance to protect its reputation, and that the students were directed to leave the whole premises rather than just the residential area. Further, the College argued that SMA had willingly engaged in the event, as a 20-year-old adult, and that there was no duty of care owed to her as a result.

On 29 June 2022, the Court of Appeal upheld the earlier ruling of the Supreme Court, however, the appeal justices found that Justice Elkaim had erred in his assessment for damages for past and future economic loss. As a result, SMA’s payout was cut to $267,000 and she was ordered to pay some legal costs. Despite the reduced payout, the Court of Appeal’s recent ruling still sends a strong message to Australian universities about their liability for students in their care.