Facts
In SMA v John XXIII College (No 2) [2020] ACTSC 211, Elkaim J of the ACT Supreme Court found that the University College defendant was liable for damages from a sexual assault perpetrated by one adult resident against another. The plaintiff was sexually assaulted while intoxicated during a “Pub Golf” event (described as having “no relationship to the game of golf but rather was a drinking spree”). The residents commenced drinking at the College but were asked to leave after the group became disorderly. They moved on and the assault later took place off-campus.
Although the event appeared to have been organised by Senior Residents (older students who had supervision and pastoral care responsibilities in return for a scholarship), they were found to be the “eyes and ears of the College” and had “a close connection” with College management. That contributed to the Court’s conclusion that “not only did the College condone events like Pub Golf, but it fostered the consumption of alcohol as a normal part of college life”.
Liability
Although liability was initially argued for a number of reasons (including those associated with the “culture” at the College), at trial the plaintiff argued that the College was negligent for:
- allowing the “Pub Golf” event to occur;
- directing the students to leave the College (on the night in question, after they had become intoxicated and disorderly); and
- inappropriately responding to the plaintiff’s complaint about the assault.
The College denied that its duty of care required it to protect the adult plaintiff from the criminal acts of a third party. The College was not negligent in permitting the event (which would have conflicted with the plaintiff’s autonomous decision to consume alcohol). However the Court found for the plaintiff on the second point above, distinguishing prior authorities because “when the direction to the students was given for them to leave it was given in the knowledge that they were intoxicated, probably going to become even more intoxicated, and they, as a group, contained two elements of risk: Drunk young men and vulnerable and intoxicated young women”.
The Court found that the risk was foreseeable because the College knew that “the students drank too much alcohol, both on and off College premises, and that “if the girl had had too much to drink, it could not be consent””. The risk was not insignificant because of “the well-known behaviour of intoxicated students”. The finding on causation was that the College could have directed the students not to go out and could have invoked its disciplinary powers to enforce that direction.
The plaintiff also succeeded on the third point above because of “entirely inappropriate” aspects of the way that the College dealt with the investigation.
A new high watermark for liability?
His Honour in finding negligence, particularly on the second issue, appears to have acknowledged that the circumstances were “novel”. Critically there was no evidence suggesting that the victim herself was at risk from the particular perpetrator (e.g. because of prior conduct or threats). Applying the foreseeability requirement of s 43 Civil Law (Wrongs) Act 2002, liability was imposed because the College owed a duty in respect of residents’ welfare and because of “the possible consequences of the overconsumption of alcohol by already intoxicated students”. In other words the risk of harm was foreseeable by reason only of the circumstances and what male students might do to female students where alcohol was involved. That is a lower threshold than traditionally has been required of victims in pursuing institutions in negligence, where an individual perpetrator caused the injuries. Those principles could equally apply to a range of universities, academies, residential colleges and sporting clubs where those factors are present.
It is not known whether the decision will be the subject of an appeal. Any appeal may focus on foreseeability and the scope of the institution’s duty; should sexual assault be a known risk of harm in all situations where intoxicated students are asked to leave a venue?
For more information, contact:
Patrick Riordan, Principal – [email protected] – D: 02 8289 5921
Patrick Thompson, Principal – [email protected] – D: 02 8289 5920