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Breach of Duty of Care to Sexual Assault Victim

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Breach of Duty of Care to Sexual Assault Victim

A Costly Lesson for ANU College

The Supreme Court in the Australian Capital Territory has awarded an ANU law student damages of $420,201 following a sexual assault.

The plaintiff was assaulted following a drinking event in an alleyway by a licensed premises which the students went to as part of the “Pub Golf” event. The event did not involve any Golf but rather an invitation directing students to drink a certain number of drinks at each level of the venues attended and involved a variety of drinking games including ones that had the students on their knees, tied together having alcohol poured in their mouths. Much of the drinking occurred earlier in the evening at the College prior to the students being directed to leave by staff.

The student and the perpetrator were both residential students of John XXIII College. Judge Elkaim noted that “John’s was supposed to be a haven of Catholic values. Instead its catholic interests made a virtue of the consumption of alcohol.”

The plaintiff woke up the next morning after the “Pub Golf” event and found that she was wearing the same clothing as the night before but her jeans were undone and her underwear was pulled down within her jeans. It was only 10 days later that she heard gossip that another student had reported that he had sex with her that night in an alley. She confronted him about this and recorded the conversation on her phone. In the conversation he admitted that he had sex with her in an alleyway that night.

The plaintiff reported this to a Women’s Officer who organised a meeting with the Head of the College. The way the College then dealt with the incident led to them being found by the Court to have breached their duty of care owed to the Plaintiff. In reports from one of the medical experts , it was found that the College’s response to the sexual assault complaint was responsible for 80% of the ongoing psychological injuries suffered by the Plaintiff (Post-Traumatic Stress Disorder and Major Depressive Disorder). Their manner in dealing with the investigation was found to be harmful and resulted in the award of an amount of $30,000 for aggravated and exemplary damages. Judge Elkaim found that “the defendant’s approach was influenced by its desire to protect the reputation of the College at the expense of the plaintiff’s welfare. In doing so the defendant’s conduct also accentuated the suffering of the plaintiff.”

The defendant was also found to have breached its duty of care in directing the students to leave its premises when they were highly intoxicated and in the manner in which it dealt with the complaint.

Judge Elkaim reached the conclusion that “the defendant was well aware of the appalling conduct that characterised the Pub Golf event, and others like it, but, by intended policy or feigned ignorance, condoned the conduct. I had the distinct impression that the defendant guarded its reputation as a hard drinking, good living establishment as a badge of honour and a lure to students who thought these attributes were requirements of their introduction to adulthood and university life.”

The Head of the College had made statements to the plaintiff while dealing with her complaints including the following:

(a) Sometimes when boys are drunk they can be quite arrogant but are often underperformers;
(b) I’m not really sure that anything did actually happen;
(c) I’m not even sure that anything did happen in the alleyway; and
(d) Another concern is how you managed to get that drunk.

The Court noted that the plaintiff’s psychological/psychiatric condition could have been preventable or minimised had counselling been received immediately upon disclosure of the sexual assault.

The defendant accepted that it owed the plaintiff a duty of care but maintained that its duty of care was no more than that of an occupier. The Court did not agree. The Court noted that the college had a duty to act for the welfare of the students and when staff ordered the students off the college grounds there were two important elements of risk: Drunk young men and vulnerable and intoxicated young women.

It was found that the risk of sexual assault upon an intoxicated young woman was foreseeable and, having regard to the well-known behaviour of intoxicated students, the risk was not insignificant. A reasonable person faced with such knowledge would have taken precautions to avert the risk and therefore the defendant had breached its duty of care to direct the students away from the premises.

The Court also found that it was plainly foreseeable that a person making such a complaint is vulnerable and susceptible to psychological harm should the complaint be improperly dealt with.

There was verdict and judgment of compensation for the plaintiff in the sum of $420,201.57 which included $219, 503 for future economic loss and $30,000 aggravated and exemplary damages.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2020/211.html

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