In a significant judgment decided by the Supreme Court of the Australian Capital Territory, an Australian National University College was ordered to provide a former student with $420,000 in relation to a sexual assault suffered by the former resident.
The judgment included exemplary and aggravated damages for the poor manner in which the John XXIII College (the College) responded to the sexual assault, leading to a finding that the College was more concerned with protecting its reputation than the former resident’s welfare. The case carries important lessons for all universities and colleges on their duty of care and the importance of efficient and survivor focused approaches to sexual abuse and concerns about student safety.
The facts
The plaintiff was a former resident at the College who commenced a combined degree in Commerce and Law at ANU in 2014. The College had a close association with a nearby pub called Mooseheads and the Residents’ Association at the College provided all students with a drink card.
On 6 August 2015, an event called Pub Golf was organised which started at the College and went to two pubs. The drinking began at the College where students were allocated into different rooms and provided with drinking cups. At 9pm, the residents were directed to leave the College and go to Uni Pub before heading to Mooseheads where residents regularly stayed until it closed at 3am.
The plaintiff did not remember leaving Mooseheads. She woke up the next morning at 8am and had limited memory after leaving the College. The plaintiff later discovered that another resident (NT) had engaged in sexual activity with her, which she did not remember. She recorded a conversation with NT where he admitted to having sex with her in an alleyway and that he “felt bad”.
The plaintiff reported this to the College and had a meeting with the Head of College, Mr Johnston, and the Deputy Head of College. After this meeting, Mr Johnston then met with NT and later told the plaintiff that NT had denied any sexual encounter. The plaintiff provided Mr Johnston with the recording where NT admitted to the sexual act. At a subsequent meeting, the Court found that Mr Johnston made a series of comments to the plaintiff including:
- “Sometimes when boys are drunk they can be quite arrogant but are often underperformers”
- “I’m not really sure that anything did actually happen”
- “I’m not even sure that anything did happen in the alleyway”
- “Another concern is how you managed to get that drunk.”
The plaintiff then made a complaint to ANU and was told by ANU and the College that they could not take any action against NT because there was not sufficient evidence. The plaintiff avoided NT as much as she could and eventually left the College.
Judgment
The Court found that the College owed the plaintiff a duty of care and that it breached this duty of care both in directing the residents to leave the College and in the manner it responded to the plaintiff’s complaint.
The Court found that the College had a reputation of having a party and drinking culture which it wore as a “badge of honour” and used to lure students. It relied on a report published in 2014 by the former Head of College who outlined his concerns that there was pressure on students to drink. As a result, the Court found that by directing the students to leave the College when they were intoxicated was a breach of its duty, particularly given that “the risk of sexual assault upon an intoxicated young woman was foreseeable and…not insignificant”.
Furthermore, the Court was particularly critical of Mr Johnston’s comments, which it found to be entirely inappropriate and a departure from the pastoral duty of care that Mr Johnston, as Head of College, had assumed. The Court outlined that the College had a duty to investigate the complaint competently and treat the plaintiff in a manner consistent with its obligation to provide pastoral care.
The total sum of damages awarded recognised the impact on the plaintiff who had suffered distress over five years, including a significant impact on her ability to pursue the career she had hoped for in law or finance. The sum included almost $300,000 in past and future economic loss and $30,000 in exemplary and aggravated damages, as well as medical expenses and general damages.
Key lessons
The judgment in this case and the significant amount of compensation awarded demonstrates the importance of responding carefully and thoroughly to allegations of sexual abuse. While the residents of Colleges are primarily adults, they still owe their residents a duty of care which includes investigating complaints and providing a pastoral response to complainants.
We recommend that organisations (particularly those that provide care for children or young people):
- Review their process for responding to sexual abuse response – organisations should ensure they have adequate response processes for addressing complaints in a sensitive manner. It should be prescriptive to ensure consistency and compliance with their duty of care.
- Prioritise health, safety and well-being – While procedural fairness is important, organisations should ensure that their documentation prioritises the health and safety of residents above all else. It should provide flexibility for the organisation to be able to take action separate from requiring complainants to make a criminal complaint.
- Build capability – organisations (particularly Colleges) should allocate specific roles to individuals who are trained to manage sexual harm allegations. In particular, these individuals must receive training on how to respond to complaints and provide support to complainants. Comments such as those made by Mr Johnston in the above case can be incredibly damaging to survivors.
- Focus on prevention – While response is a critical aspect of an organisation’s safety strategy, prevention should be part of the culture. For Colleges, training or information should be provided to its residents at Welcome Week and the beginning of each semester regarding appropriate and inappropriate behaviour, as this helps to set expectations, particularly around drinking and respectful relationships.
How we can help
For more information or guidance regarding your duty of care as an organisation, please do not hesitate to contact us.