John XXIII College v SMA
[2022] ACTCA 32
•29 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title:
John XXIII College v SMA
Citation:
[2022] ACTCA 32
Hearing Dates:
1 and 5 November 2021
DecisionDate:
29 June 2022
Before:
Murrell CJ, Loukas-Karlsson J and McWilliam AJ
Decision:
1) The appeal is allowed in part.
2) Order 1 of the orders made by Elkaim J on 7 August 2020 is set aside and in lieu thereof, the following order is made:
(1) Judgment is entered for the plaintiff in the sum of $267,500.
3) Order (b)(i) of the orders made on 4 September 2020 is set aside and in lieu thereof, the following order is made:
(i) The defendant is to pay the plaintiff’s costs of the proceedings.
4) The respondent is to pay the appellant’s costs of the appeal.
5) The cross-appeal is dismissed with each party to pay their own costs.
6) Liberty is granted to the parties to apply to vary any of the above costs orders within 14 days.
Catchwords:
APPEAL – NEGLIGENCE – DUTY OF CARE – BREACH – CAUSATION – where students at a residential college at university commenced drinking alcohol on college premises and were directed to leave – where appellant later sexually assaulted outside a nightclub – whether error in finding that a residential college at the Australian National University owed a duty of care to a student that extended to directions it gave to students and the manner in which it handled complaints – whether error in factual findings made by primary judge – whether breaches established on the evidence before the primary judge – whether breaches caused student’s psychiatric injury
APPEAL – CONTRIBUTORY NEGLIGENCE – where student intoxicated when harm occurred – whether error in failing to apply the presumption of contributory negligence in s 95 of the Civil Law (Wrongs) Act 2002 (ACT) – whether damages should be reduced by reason of the student’s contributory negligence
APPEAL – EVIDENCE – ADMISSIONS – whether error in admitting evidence of an admission in a conversation and a recording of same pursuant to s 64 of the Evidence Act 2011 (ACT) and s 4 of the Listening Devices Act 1992 (ACT) – whether use of the evidence should have been limited pursuant to s 136 of the Evidence Act 2011 (ACT)
APPEAL – DAMAGES – whether error in awarding damages for economic loss – whether error in awarding aggravated and exemplary damages
CROSS-APPEAL – DAMAGES – whether amount awarded for general damages was grossly inadequate
CROSS-APPEAL – COSTS – where offer of compromise made on penultimate day of hearing to pay injured student a sum more than the sum ultimately obtained following a contested trial – where primary judge ordered solicitor and client costs but limited such order to the period commencing on the first day of the hearing – whether error in failing to properly apply r 1010 of the Court Procedures Rules 2006 (ACT)
Legislation Cited:
Civil Law (Wrongs) Act 2002 (ACT) ss 34, 35, 42, 43, 45, 95, 99, 102
Civil Liability Act 2002 (NSW) ss 16, 17
Court Procedures Rules 2006 (ACT) r 1010
Evidence Act 2011 (ACT) ss 59, 64, 81, 83, 136, 138
Listening Devices Act 1992 (ACT) s 4
Supreme Court Act 1933 (ACT) s 37EWrongs Act 1958 (Vic) ss 28LE, 28LF, 28LG
Cases Cited:
AB v Australian Capital Territory [2018] ACTSC 16
Agar v Hyde [2000] HCA 41; 201 CLR 552
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; 146 FCR 292
“B” v Reineker [2015] NSWSC 949
Brambles Holdings Ltd v Carey (1976) 15 SASR 270
C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board & Scott (2009) 239 CLR 390
Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421
Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233
Dong v Song [2019] ACTSC 82
Erlich v Leifer [2015] VSC 499
FFF v BBB [2017] VSCA 156
Fox v Percy [2003] HCA 22; 214 CLR 118
Gann v Hosny [2017] VSCA 303
Graham Barclay Oysters v Ryan [2002] HCA 54; 211 CLR 540
Hamilton v Whitehead (1988) 166 CLR 121
Hand v Morris [2017] VSC 437
HL v HP [2019] ACTSC 299
Hosny v Victoria Racing Club & Anor [2012] VCC 661
House v The King (1936) 55 CLR 499
Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392
Khan v Polyzois [2006] NSWCA 59
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 565
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
Lee v Lee; HSU v RACQ Insurance; Lee v RACQ Insurance Limited [2019] HCA 28; 266 CLR 129
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
MC v Morris [2019] NSWSC 1326
Ms P v Mr D [2020] NSWSC 224
Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
Oliver v Roberts [2018] ACTCA 35
Perez v Reynolds [2020] VSC 537
Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118
Reardon v Seselja [2021] ACTCA 4
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679
Scuderi v Raskurasingham [2017] ACTSC 41
SMA v John XXIII College (No 2) [2020] ACTSC 211
SMA v John XXIII College (No 3) [2020] ACTSC 236
SMA v John XXIII College [2020] ACTSC 198
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Sullivan v Moody [2001] HCA 59; 207 CLR 562
The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142
Thorne v Kennedy [2017] HCA 49; 263 CLR 85
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Waks v Cyprys & Ors [2020] VSC 44
Ward v Allies and Morrison Architects [2012] EWCA Civ 1287 CA
Warren v Coombes [1979] HCA 9; 142 CLR 531Waters v Winter and the University of New England [1998] NSWCA 254
Parties:
John XXIII College (ACN 085 301 640) ( Appellant/Cross-Respondent)
SMA ( Respondent/Cross-Appellant)
Representation:
Counsel
M Windsor SC with G Keesing ( Appellant/Cross-Respondent))
F McLeod SC with J Ronald ( Respondent/Cross-Appellant)
Solicitors
Sparke Helmore Lawyers ( Appellant/Cross-Respondent)
Shine Lawyers ( Respondent/Cross-Appellant)
File Number:
ACTCA 33 of 2020
Decisions under appeal:
Court: ACT Supreme Court
Before: Elkaim J
Date of Decision: 23 July 2020
Case Title: SMA v John XXIII College
Citation: [2020] ACTSC 198
Court File Number: SC 354 of 2018
Court: ACT Supreme Court
Before: Elkaim J
Date of Decision: 7 August 2020
Case Title: SMA v John XXIII College (No 2)
Citation: [2020] ACTSC 211
Court File Number: SC 354 of 2018
Court: ACT Supreme Court
Before: Elkaim J
Date of Decision: 4 September 2020
Case Title: SMA v John XXIII College (No 3)
Citation: [2020] ACTSC 236
Court File Number: SC 354 of 2018
THE COURT:
1. This appeal and cross-appeal involve a residential college of the Australian National University (ANU), being John XXIII College (the College), and a student who was a resident of the College in 2015 (who has been anonymised and will be referred to in these reasons as “SMA”). The primary proceedings concerned a claim made by SMA in negligence against the College, the genesis for which was a social event that she attended on 6 August 2015 called “Pub Golf”. As the name suggests, 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.
2. 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 in the alleyway alongside Mooseheads. SMA had no independent memory of the assault occurring due to her intoxication. She learned of it about ten days later through a friend, who told her that the student at the College (“NT”), with whom she had apparently had sex that night, was joking about his “achievement”.
3. SMA’s claim in negligence in the proceedings at first instance was that the College owed her a duty of care and had breached this duty in three ways:
(1)By permitting the Pub Golf event to proceed;
(2)By directing the students to leave the College on the night of 6 August 2015; and
(3)In the inappropriate management of SMA’s subsequent complaint.
4. Judgment was delivered on 7 August 2020, with the primary judge finding that the College had breached its duty of care both in directing the students to leave the premises and in the handling of SMA’s complaint: see SMA v John XXIII College (No 2) [2020] ACTSC 211 (primary judgment). Judgment was entered in SMA’s favour in the sum of $420,201.57 plus costs.
5. SMA subsequently applied to vary the costs order, relying on an offer of compromise that she had made during the hearing, the terms of which were verdict and judgment against the College in the sum of $400,000, plus costs to be agreed or assessed. Following that application, on 4 September 2020, the primary judge ordered the College to pay SMA’s costs of the proceedings, with such costs to be assessed on a solicitor and client basis from and including 13 July 2020: SMA v John XXIII College (No 3) [2020] ACTSC 236 (costs judgment).
6. By Further Amended Notice of Appeal dated 25 October 2021, the College appealed the primary judgment in respect of liability, quantum, and costs. The College has sought to set aside the orders made by the primary judge, and instead to have judgment entered in its favour, with costs orders similarly in its favour.
7. SMA has brought a cross-appeal, filed 1 October 2020. The cross-appeal challenges the quantum of general damages awarded to SMA (complaining that the amount awarded was grossly inadequate) and further asserts that the costs orders made by the primary judge should have required the College to pay her costs on a solicitor and client basis from the commencement of the proceedings, rather than from 13 July 2020 (which was the first day of the substantive hearing).
8. Both the appeal and cross-appeal are governed by s 37E of the Supreme Court Act 1933 (ACT), in that they are in the nature of a rehearing, albeit error must still be shown: see The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5] and the authorities cited therein.
Issues on the appeal and cross-appeal
9. The College’s appeal raises 15 grounds. They have been grouped in the way they were argued at the hearing.
(A) Findings of Fact (Ground 1, 2, 6 and 15): the College challenges the following factual findings made by the primary judge –
(1) SMA was intoxicated at the time she left the College;
(2) The College knew about and/or condoned the “Pub Golf” event;
(3) It was likely Mr Johnston (the Head of the College at the time) adopted a stance designed to protect the College’s reputation; and
(4) The students were directed to leave the College premises (rather than finding that they were directed to leave the residential area of the College).
(B) Duty of care, breach and causation (Grounds 3 to 5, and 7 to 9): the College contends the primary judge erred in finding that:
(1) The duty of care owed by the College to SMA extended to the direction given to students to leave the premises;
(2) The College breached its duty of care to SMA by directing students to leave the premises;
(3) The breach of duty by directing students to leave the premises caused SMA to suffer loss and damage;
(4) The College owed a duty to investigate the respondent’s complaint competently, and in doing so, treat SMA in a manner consistent with its obligation to provide pastoral care;
(5) The College breached its duty of care to SMA in its handling of her complaint; and/or
(6) But for the negligence of the College, SMA would not have suffered harm.
(C) Admissibility of evidence (Ground 13): The College complains that the primary judge erred in admitting (and without limitation) evidence of a conversation between SMA and NT, which was also recorded by SMA without NT’s knowledge at the time: SMA v John XXIII College [2020] ACTSC 198 (interlocutory judgment).
(D) Contributory Negligence (Ground 14): The College also submitted that the primary judge erred in failing to apply the presumption of contributory negligence in s 95 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act), and in failing to reduce the SMA’s damages by reason of her contributory negligence.
(E) Damages (Grounds 10 to 12): The College further submitted that the primary judge erred in awarding –
(1) The sum of $287,701.57 to SMA for past and future economic loss;
(2) Aggravated damages and exemplary damages; and/or
(3) The sum of $30,000.00 to SMA for aggravated damages and exemplary damages.
10. On the cross-appeal, SMA raises two complaints.
(A) General Damages: SMA claims that she should have been awarded general damages in the sum of $225,000 rather than the $90,000 sum awarded to her by the primary judge.
(B) Costs: SMA seeks to substitute the existing order in her favour, and in particular, the order for solicitor and client costs from 13 July 2020, with an order that the College pay her costs of the entire proceedings below on a solicitor and client basis. She argues that should have been the consequence of giving effect to r 1010 of the Court Procedures Rules 2006 (ACT) (Rules).
11. One finding not challenged on the appeal was the primary judge’s finding (at [228]-[229] of the primary judgment) that sex in some form occurred between SMA and NT, although the precise nature of the sexual encounter was not certain. Further, the primary judge found that what occurred lacked the consent of SMA due to her level of intoxication. As the primary judge emphasised, this was a civil finding limited to satisfaction on the balance of probabilities.
Summary of findings on appeal
12. The fact that the primary judge found there were two separate breaches of duty of care is critical to the outcome of this appeal. As will be explained in the reasoning below, a number of the College’s complaints have substance. The 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.
13. However, no error has been 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.
14. In relation to the cross-appeal, no error has been 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 falls away.
15. The result is that SMA still succeeds in the action she brought in negligence, but the damages awarded have been reduced from the $420,201.57 sum awarded by the primary judge to $267,500. With that overview of the appeal, we turn to each of the parties’ complaints.
(A) Did the primary judge err in the factual findings made?
16. As the College’s argument involves seeking to overturn factual findings, it is worth explaining how the Court approaches that task on appeal. The principles have been usefully collected in Lee v Lee; HSU v RACQ Insurance; Lee v RACQ Insurance Limited [2019] HCA 28; 266 CLR 129, where the plurality of the High Court, comprising Bell, Gageler, Nettle and Edelman JJ, (with whom Kiefel CJ agreed) stated at [55] (footnotes omitted):
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". …
17. The above passage includes citations from Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392, Warren v Coombes [1979] HCA 9; 142 CLR 531 (Warren v Coombes) and Thorne v Kennedy [2017] HCA 49; 263 CLR 85.
18. In this jurisdiction recent cases such as Reardon v Seselja [2021] ACTCA 4 at [6] and Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 at [24] have outlined a similar approach, each citing Fox v Percy and Warren v Coombes, among other cases.
19. None of the four findings which are the subject of challenge on this appeal involved contested credibility of witnesses.
Was there factual error in the finding that the respondent was intoxicated at the time she left the College?
20. At [253] of the primary judgment, Elkaim J said (emphasis added):
253. The position had changed however by the time the decision was made to direct the students to leave the College. By this time the students were very much intoxicated. The College was therefore directing the students, over whom it had assumed a pastoral role, to leave the relative safety of the John’s premises and venture out to other venues, and inevitably and eventually to Mooseheads. When the direction was made, therefore, [SMA] and the other students were not exercising a conflicting autonomous decision, rather they, and in particular the female students, were vulnerable and entitled to the pastoral care of the [College].
21. The College argued that vulnerability was not enough. The College submitted that the evidence did not establish that SMA herself was “very much intoxicated” at the time of the direction to leave. Further, the College argued that SMA’s level of intoxication was not consistent with an inability to exercise an autonomous decision. The finding was therefore in error. The College argued that the primary judge should have found that SMA had approximately 4 standards drinks over a period of several hours and was not intoxicated to a degree where her reasoning or self-control were impaired.
22. SMA responded to that argument in two ways. First, SMA pointed to her evidence in the hearing before the primary judge that “I wasn’t sober. I was drunk by the time I left the College”. The primary judge accepted SMA’s evidence that she was “at least “tipsy” by the time she left the College” at [100]-[101] of the primary judgment. Second, SMA argued that the factual finding about her degree of intoxication was irrelevant to the finding as to the vulnerability of the students. It was the latter that formed the basis of the duty of care the College owed its residents. As a general proposition, in 2015 it was reasonably foreseeable to the College that a student of normal fortitude on the end of a physical or sexual assault might suffer a psychiatric illness. She argued there could be no question that drinking created or compounded the vulnerability of the students regardless of the degree of intoxication; whether they were tipsy or drunk did not matter.
23. The evidence on the point was as follows ([99] and [100] of the primary judgment):
(1)SMA said (through verified interrogatories) that she was “not affected by alcohol such that [her] control was markedly diminished.”
(2)SMA said (in oral evidence) that she was “drunk” by the time she left college and she agreed she was at least tipsy.
24. The primary judge referred to those two items of evidence before stating at [101] (emphasis added):
101. I do not see any dramatic contradiction between the plaintiff’s oral evidence and her answers to the interrogatories. I am satisfied that the plaintiff had consumed alcohol at [the College] and was affected by it by the time she left. As revealed in the evidence of Mr Johnston, this was at a time when she departed the College at his direction (through the Night Porter) to venture to drinking venues where it was inevitable that more alcohol would be consumed.
25. The transcript of SMA’s evidence – which the primary judge accepted as truthful and there is no challenge to her credit on appeal – included SMA’s evidence that she was intoxicated but not to the point that she was ill or unable to walk. She did not feel that her physical or mental control was diminished at the time she departed, but she had consumed 5 alcoholic drinks from a large red plastic cup (1 in her room and 4 in one of the other rooms at the College). Each time, SMA probably poured more than a standard drink (primary judgment at [98]). The Pub Golf event commenced at 8:00pm and SMA said she left the College at some point between 8:30pm and 10:00pm at the direction of the Night Porter, Mr Adrian Sandrey. The direction of the Night Porter was made at around 9:00pm (primary judgment at [43]). Accordingly, SMA had consumed more than 5 standard drinks over a period of less than two hours.
26. The primary judge described what occurred during the Pub Golf event at the College at [43], including students throwing up either in the toilets or in bins that had been removed from the kitchenettes on each floor and specifically placed in the students’ rooms for that purpose. His Honour referred to the Incident Report. Part of that report states as follows:
By 8:30pm residents were incredibl[y] drunk and there was vomit in hallways, stairwells and rooms, along with garbage and broken glass bottles. One girl had drunk over a bottle of wine by herself and then fell and hit her head. An ambulance was called at 9:09pm. The entire residence block was messy, loud and the bathrooms had vomit in them. It took 5 people (Duty tutor, Night Porter, 2 CC’s, DH) to clear everyone out and clean up the mess.
…
27. The references to CC and DH are references to “Community Coordinator” and Deputy Head” respectively.
28. The two facts found by the primary judge were that SMA individually was affected by alcohol, and that the students collectively were very intoxicated by the time the direction by the Night Porter was made. It can be seen from the above that each of those findings was open on the evidence and we see no error in the primary judge so finding.
29. From those factual findings, the primary judge then drew two secondary factual inferences:
(1)That the students were not exercising a conflicting autonomous decision when they departed the College premises; and
(2)That the students, in particular the female students, were vulnerable and entitled to the pastoral care of the College.
30. The College’s submission misunderstands the primary judge’s finding. The primary judge did not make a finding that SMA’s reasoning or self-control was impaired, nor did his Honour make a finding about SMA’s level of intoxication being to the point where she could no longer make autonomous decisions. What his Honour was directing attention to is made clear by later context, namely the primary judge’s reasons at [141]-[142]:
141. Very significantly ML said that when students became intoxicated and loud at Tav Nights (held every two or three weeks) they would be sent out of the College premises by the Night Porter or Trad from maintenance. This evidence is important because it goes to the plaintiff’s case that the College should not have been sending students out into the night, knowing they were going to be consuming yet more alcohol, and therefore be at risk of injury or assault.
142. Of course the students might not have obeyed a direction to remain at the College, but that is a very different picture to encouraging them to leave. No doubt they were dispatched because the residence was awash with alcohol, vomit and other rubbish. The Night Porter would not have relished the cleaning task facing him and his fellow employees. Later evidence from Mr Johnston confirmed the students had been directed to leave, although his evidence attempted, unsuccessfully, to give a sanitised version of the reason for the direction.
31. The vulnerability of SMA as a female student at the College arose from her individual level of intoxication (as found by the primary judge), the collective state of inebriation of the other students (again as found by the primary judge) and the additional circumstance that in such a state, the group was collectively directed to depart the College – that is to leave the environment where SMA lived and where there would have been other students in the same common areas, where the ability to buy alcohol from the College Tavern ceased earlier in the night than at commercial establishments and where persons with a degree of control, such as a night tutor and a night porter, had a presence.
32. We are not persuaded that there was any error in the findings of the primary judge, but in any event, properly understood, whether SMA was “tipsy” or “drunk” was not material to the finding of the vulnerability of the students of the College by the circumstances that either were created or had arisen on the night in question.
Was there factual error in finding the appellant knew about and/or condoned the “Pub Golf” event?
33. The College challenges the following factual findings made by the primary judge at [16], [204] and [205]:
16. Further I have 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.
…
204. A number of important topics were canvassed under cross-examination. The ultimate result was to significantly weaken the foundations of the defendant’s case. It is to be remembered that the defence involved, as stated in the opening by its counsel, that the Pub Golf event on 6 August 2015 had been banned, as had any type of pub crawl. The impression I had from both the defendant’s opening and the cross-examination of the plaintiff and her witnesses was that a case was to be presented in which the Pub Golf event was exceptional and well outside any normal activity permitted by the College.
205. By the end of the cross-examination I was satisfied 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. It did this through events which it did sanction, like Out the Back Day, and its general approach to the excessive drinking that was prevalent at John’s and in particular, when Mr Johnston became the Head of College in July 2015.
34. The College submitted that the primary judge ought to have found that the College remained ignorant of the Pub Golf event until well after it concluded. It based the argument on Mr Johnston’s evidence in chief, which was to the effect that he had never heard of “Pub Golf”, that he and his staff did not learn of the nature of the event held that evening until several days later, and that Mr Johnston was not challenged on any of that evidence in cross-examination.
35. The College also pointed to a communication in evidence, sent to all College residents by Mr Johnston following the event on 6 August 2015, stating that Pub Golf was something that was not allowed at the College “because of the danger of the event,” and noting that the event was “organised by people who knew it was a banned event hence they tried to disguise it.”
36. SMA argued that the finding was open and was based on:
(a)The roles of each of the Community Coordinators and Senior Residents (SRs) as described in the College’s Resident Handbook 2015 (Handbook);
(b)The evidence of one of the student witnesses as to her experience of Senior Residents at the College;
(c)The evidence of another student that led to the finding that the sheer scale of the Pub Golf 2015 event would have made it impossible for it not to be noticed by the Deputy Head, who lived in the College and was around on the night; and
(d)The evidence of the Night Porter contained in an incident report as to what occurred on the night (the Night Porter was not called to give evidence).
37. The submissions made by SMA are accepted. Again, it is important not to misunderstand the finding made by the primary judge. His Honour found that the College condoned events like Pub Golf and fostered the consumption of alcohol as a normal part of college life.
38. The argument by the College that it remained ignorant of the Pub Golf event until well after it concluded is not supported by the evidence. First, it ignores the role of Senior Residents in carrying out functions for and on behalf of the College.
39. In that regard, the primary judge referred to the Handbook (at [76]) and extracted a number of relevant excerpts. The Handbook includes the following passages (emphasis added):
6.1 Residents’ Conduct
The Head of College is responsible for the good order and conduct of the College. The Head delegates responsibility to the Deputy Head of College who coordinators the roles of, amongst others the Community Coordinators, Senior Residents and the Night Porter, in maintaining good order.
The College strives to create a happy, warm and supportive family atmosphere that is self-regulated and which considers the needs and interests of all its members. …
…
9.0 COLLEGE APPOINTMENTS & RESIDENTS’ ASSOCIATIONS
The Head of College, Deputy Head of College, Community Coordinators and Senior Residents are all available to support those Residents who have pastoral, academic, health, mental health or personal problems.
9.1 Community Coordinators
Community Coordinators (CCs) are appointed by the Head of College and assist the Deputy Head of College in the range of pastoral, academic and disciplinary matters that occur daily at the College. …
The CCs share responsibility for the Senior Resident Programme and the Academic Mentor Programme. The CCs also assist the SRs in the daily pastoral care of College Residents and further assist the Senior Residents managing the disciplinary issues that may arise in their corridors. …
…
9.2 Senior Residents
Senior Residents (SRs) are appointed by the Head of College to assist in the administration and conduct of the College. SRs report to the CCs who under the direction of the Deputy Head of College maintain the pastoral support and discipline networks that sustain the College. …
…
Where a Resident conducts him/herself in a way that invites Level 2 intervention, the CCs may, after receiving a report from the SR, impose…Sanctions… or the SRs may intervene themselves to resolve the issue without the need for a CC-imposed Sanction.
…Through fine role modelling and conduct, SRs nurture the ethos of [the] College and live its values as a Catholic, academic university college. SRs are an easily accessible point of contact for Residents… SRs are the first point of contact for Residents’ pastoral care needs. They participate in the Duty Roster, performing the role of Duty Officer approximately every twelfth night.
At [the College], SRs each have a broader Community Portfolio or area of responsibility. …
SRs oversee corridor events that nurture community spirit and are leaders in every sense of the [College] Community. SRs carry master keys to their corridor and may let Residents back into rooms when Residents lock themselves out and, with appropriate permission, can grant access to other secured areas of the College. They also provide information and feedback through weekly meetings.
After hours, SRs are delegated authority by College Administration to monitor and enforce policies regarding Resident behaviours...
40. The College argued that it was insufficient to simply point to a group of people who, in combination, had knowledge and attribute that state of mind to the knowledge of the College, relying upon cases such as Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 (CBA v Kojic) and Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; 146 FCR 292 (ACCC v Radio Rentals).
41. The College submitted that in determining what a company such as the College “knew”, the starting point is whether a particular person, in doing particular things, is to be regarded as the company, relying on Hamilton v Whitehead (1988) 166 CLR 121 at 127. The test has been expressed in terms of the necessity to specify some person or persons so closely and relevantly connected to the company that the state of mind of that person or persons can be identified with the company: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 565 at 582-583 (quoting Bright J Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279, Bray CJ and Mitchell J agreeing).
42. In CBA v Kojic, Allsop CJ considered (at [66]) that, depending on the statutory context, separate information held by an officer or agent may be aggregated with information held by another if there is a duty and opportunity to communicate it to the other. Edelman J’s view (at [89]) was that, in the context of the particular statutory regime of unconscionable conduct, “aggregated corporate knowledge” as a concept could not be applied to reach a conclusion that the corporation itself “acted unconscionably contrary to statutory proscriptions.” There was a careful emphasis upon the statutory context in which those findings were made, which is a very different circumstance to that under consideration here.
43. The same may be said of ACCC v Radio Rentals, where Finn J at [176]-[183] also considered aggregated knowledge in the context of unconscionable conduct. His Honour was again careful (at [183]) to confine his comments to circumstances where what was sought by the aggregation of the knowledge was to alter the character of that knowledge when it is attributed to the employer corporation where no justification for the aggregation has been made out. Again, that is not the case under consideration here.
44. However, even accepting the general care or caution that must be taken in imputing the knowledge of a group of people to the knowledge of the College, the College’s argument fails to recognise that after hours, it was the SRs who had the express “delegated authority by the Head of College to monitor and enforce polices regarding Resident behaviours”, with reporting obligations. They are included in the organisational chart in the Handbook as reporting to the Deputy Head of College who in turn reported to the Head of College. The primary judge found at [77] that the close relationship between the College and the SRs was enough to import knowledge of the event to the College. That finding was plainly correct in light of the chain of responsibility and in particular their “delegated authority” to enforce the College’s policies after hours. As submitted by SMA, the evidence established that a number of SRs knew about the event before it took place, and further, that a number of SRs participated in the Pub Golf event in August 2015.
45. The same reasoning applies with even greater force to the Community Coordinator (“Victor”), who was in attendance and directly witnessed what was occurring.
46. Second, and more importantly for considering the duty of care issues on this appeal, any argument about aggregation of knowledge falls away by the factual finding that Mr Johnston himself knew what was occurring at the College because he had been notified by the Community Coordinator shortly before 9:00pm. The focus on the knowledge of the SRs may have had greater prominence in the proceeding at first instance, because there was a separate allegation of a breach of duty of care by the College in allowing the Pub Golf event to proceed at the College. However, that issue was resolved in the College’s favour and not an aspect of the appeal.
47. It cannot be said that the knowledge of the Head of College himself was insufficient to establish knowledge of the College. Mr Johnston was the controlling mind of the College insofar as the Residents were concerned. It was he who gave the direction for the students to leave (whether that direction was to leave the residential area or the College premises, and whether it was communicated by the Community Coordinator or the Night Porter). Mr Johnston’s evidence that what he knew was limited was expressly rejected by the primary judge (at [209] of the primary judgment) and we agree with that finding on the evidence. The primary judge found that what the Head of College knew was more likely to be what was recorded in the Night Porter’s Log and that Victor “was unlikely to have telephoned [the Head of College] unless there was a serious situation at hand.”
48. Third, as the primary judge found at [254], there is no doubt about the College’s knowledge of the state of the students at the time the direction for them to leave was made. It is unnecessary to go into further detail, but we otherwise accept the submissions of SMA as to other evidence that made the primary judge’s finding open, such as the scale of the event (with the involvement of approximately two thirds of the student body living there in attendance), and the fact that it was brought to the attention of CCs and the Deputy Head who was of sufficient seniority as to justify the attribution of what she knew to the College. The Incident Report (see [26] above) indicates that the Deputy Head and the CCs were directly involved in moving the students involved on. Accordingly, the factual error asserted has not been established.
Was there factual error in finding it was likely Mr Johnston adopted a stance designed to protect the College’s reputation?
49. The College challenges the first sentence in [271] of the primary judgment:
271. It is also likely that Mr Johnston adopted a stance designed to protect the College’s reputation. It is with this background that the meeting on 12 November 2015 occurred. As submitted by the plaintiff, the only reasonable explanation for Mr Johnston’s conduct is that he was intent on undermining the plaintiff’s confidence so that she would not continue with her complaint.
50. The motivation of the Head of College in the conduct that occurred is relevant to the question of aggravated or exemplary damages that were awarded by the primary judge; a matter that is dealt with separately below.
51. The College argued that it was not put to Mr Johnston that he had adopted a stance designed to protect the College’s reputation. The contention was not advanced in pleadings or opening submissions and the College complains it was unfair to both the College and Mr Johnston to make that finding. Further, the College argued that the finding was unsupported by any evidence.
52. SMA submitted that a significant portion of the cross-examination of Mr Johnston was directed toward the reputation of the College, both generally and in response to SMA’s complaint.
53. In our view, the inference drawn by the primary judge was open on the evidence.
54. First, the Incident Report includes an email sent from Mr Johnston to the students on 11 August 2015. Mr Johnston confirmed in evidence in chief that he sent the email. The email commences: “I write to express my great disappointment at the behaviour of a large number of you last Thursday night. This disappointment is at a number of levels”. The email then lists 7 points, one of which was “[t]his event also had the potential to create bad publicity for the College and put our name in disrepute”.
55. In the face of that evidence in chief, it did not need to be put to Mr Johnston that he was concerned about the College’s reputation following the Pub Golf event.
56. Second, Mr Johnston confirmed under cross-examination that he was “always looking at the reputation of the college” and it was a factor he considered “all the time.” Mr Johnston was asked a series of questions about what he reported to the ANU in relation to incident involving SMA. He agreed that he had not notified the ANU that there had been an allegation of sexual assault in the formal way required, and that it was likely the ANU only came to learn about the allegations because SMA’s parents complained to the ANU about his handling of their daughter’s complaint. In that context, the following exchange occurred:
[Counsel] … it was not going to count as brownie points, was it, for the college with the ANU…had you told the ANU that you had yet another complaint of a sexual assault at [the College.] [T]hat wasn’t going to help the college’s reputation much, was it?
[Mr Johnston] I don’t believe that was the point of the conversation I had with them.
… [a]nd that was not in my thoughts.
[Counsel] … you were worried about the College’s reputation, weren’t you?
[Mr Johnston] I deny that.
57. Mr Johnston was then asked whether he was worried about the College’s reputation in general terms, and he answered, “that is a factor I consider all the time.”
58. The exchange continued:
[Counsel]This event would hardly enhance [the College’s] reputation, would it?
[Mr Johnston] …Well, it’s, can you collect the data so they know what’s there, so yes, they would find out about it. There’s – and that is what is required.
59. Counsel for SMA then cross-examined Mr Johnston about the contents of the report to the ANU subsequently written by Mr Johnston on 29 March 2016. The questions directed to Mr Johnston were to the effect that he sought to sanitise the report and did not tell “the whole story” to the ANU. It was put to Mr Johnston that in his report to the ANU, he sought to distance the College from the assault by saying it occurred in the city without also mentioning that it followed a drinking event which started at the College. The primary judge accepted that view of Mr Johnston’s evidence (at [226]) and that finding is not challenged on appeal.
60. Counsel put to Mr Johnston that he was actively misleading the ANU, which was denied. Mr Johnston’s evidence was again that he gave ANU only the information that it had asked for, and that all ANU was doing was “data collection”.
61. Third, Mr Johnston had previously given evidence that, at the time he was inducted as the incoming Head of College, he was made aware that ANU’s opinion of the College was highly unfavourable. He was told that the ANU “had a very thick folder”, although he denied knowing that the College was at risk of disaffiliation in view of complaints that had been made about the Colleges response to complaints of, among other things, alcohol usage, sexual assault and sexual conduct (which, in context, meant “misconduct”). Mr Johnston had also agreed that the College had a bad reputation in the past, a historical reputation which he did not like.
62. The above demonstrates that Mr Johnston’s concern about the reputation of the College was a factor that he considered all the time, and that he had a specific concern for the College’s reputation following the Pub Golf event at the College. There was no unfairness to either Mr Johnston or the College in the primary judge’s finding that Mr Johnston “likely… adopted a stance” with a concern to protect the College’s reputation. The language used by the primary judge at [271] of the primary judgment might have been expressed in a less contentious manner, or rather, the use of the word “designed” may have been open to an unintended interpretation. However, when the finding is properly understood as Mr Johnston handling SMA’s complaint (and in particular, investigating it himself and becoming involved as a support person for NT) with a concern for the College’s reputation, in our view, there was sufficient evidence to make such a finding open.
Did the primary judge err in finding the students were directed to leave the College premises, rather than finding that they were directed to leave only the residential area of the College?
63. The College challenges the following findings at [253] and [258] (emphasis added):
253. The position had changed however by the time the decision was made to direct the students to leave the College. By this time the students were very much intoxicated. The College was therefore directing the students, over whom it had assumed a pastoral role, to leave the relative safety of the John’s premises and venture out to other venues, and inevitably and eventually to Mooseheads. When the direction was made, therefore, the plaintiff and the other students were not exercising a conflicting autonomous decision, rather they, and in particular the female students, were vulnerable and entitled to the pastoral care of the defendant.
…
258. The distinguishing point in the present case is that 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: [d]runk young men and vulnerable and intoxicated young women. It is to be remembered that NT was one of the students sent out from John’s. He was not a stranger over whom the College had no influence. The plaintiff was not assaulted by a person she met at Mooseheads or elsewhere following the direction to leave the College. She was assaulted by a fellow student who was also one of the persons directed to leave.
64. Earlier in his Honour’s reasons, the primary judge had recorded (at [119]) that the Night Porter or the Community Coordinator told the students to leave the residence.
65. The College submitted that the primary judge erred in finding the students were directed to leave the college premises. Mr Johnston’s evidence was that he wanted Victor to “get them out of the residential area” and specifically that his instruction to Victor was that the students “should go out or continue drinking in the JCR”, being the junior common room.
66. The content of the direction was later clarified during Mr Johnston’s cross-examination and again the transcript reveals that the primary judge and the parties proceeded on the basis that Mr Johnston’s evidence was that the direction was to leave the College or go to the junior common room.
67. However, SMA’s evidence, which was generally accepted by the primary judge, was that the students were directed to “clear out”. That was consistent with the Incident Report, which referred to 5 people “clear[ing] everyone out”, as well as evidence of other students to the effect that the direction was to leave the College, not just the residential area. There was also evidence of the usual practice of the Night Porter, that such a direction had been given before and that the usual words used were “[i]t’s time to go out” or similar words. That is unequivocally a direction to leave the College grounds. Neither the Community Coordinator (Victor), nor the Night Porter (Adrian), were called to give evidence of what was said. In respect of the latter, the primary judge drew an inference (at [152]) that the evidence would not have assisted the College’s case. That finding is not challenged on appeal.
68. In light of the direct evidence of SMA and the students, there is no substance to the College’s complaint about the primary judge’s finding.
(B) Did the primary judge err in relation to the findings on duty, breach and causation?
69. The College’s complaints challenge duty, breach and causation in respect of each of the two breaches found by the primary judge, being the direction to leave the College and the subsequent handling of SMA’s complaint.
70. As will be explained, there was no error in the primary judge’s findings with regard to duty and breach in respect of both breaches, and no error in the primary judge’s findings on causation in respect of the College’s handling of SMA’s complaint. However, in respect of the direction to leave the College, in our view 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.
The duty of care owed extended to the direction given to students to leave the College
71. The College challenged the primary judge’s findings as to duty of care. They are set out at [258]-[262] of the primary judgment as follows (emphasis added):
258. The distinguishing point in the present case is that 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. It is to be remembered that NT was one of the students sent out from John’s. He was not a stranger over whom the College had no influence. The plaintiff was not assaulted by a person she met at Mooseheads or elsewhere following the direction to leave the College. She was assaulted by a fellow student who was also one of the persons directed to leave.
259. In addition, but perhaps of less significance, is the control that John’s ought to have exercised over NT as one of its students, and in accordance with its pastoral duty of care.
260. It follows that I am satisfied that the duty of care owed by the defendant to the plaintiff did extend to the direction given to leave the premises. In reaching this conclusion I have adopted the approach set out in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors[2009] NSWCA 258; 75 NSWLR 649. Allsop P (as he then was) said this from [102]:
102. This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
103. These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
104. There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
261. I have also adopted the reasoning suggested in Zanner vZanner [2010] NSWCA 343 by Tobias JA, at [79], who stated, after examining the relevant authorities:
The most that can be extracted from the foregoing references is that this Court’s determination of whether it is appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent, is to be considered as a matter of common sense taking into account any relevant policy considerations that might assist in determining whether or not, and why, responsibility for the harm to the respondent should be imposed upon the first appellant.
262. Considering the duty of care owed to the students included their welfare and taking into account the knowledge of the College of the possible consequences of the over consumption of alcohol by already intoxicated students, it was, as a matter of common sense, a breach of its duty of care to direct the students away from the premises. In addition I would add that as a matter of policy the care for students by a residential college would enhance the existence of the duty of care.
72. The primary judge went on at [265] of the primary judgment to confirm that the duty was to act for the welfare of the students, and that this was “precisely the pastoral duty described by Mr Johnston”.
73. The College argued that the relevant duty as found by the primary judge was contrary to both legislation and authority. In respect of the legislation, the College drew attention to s 34 of the Wrongs Act, which was set out by the primary judge at [272] of the primary judgment:
34. Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include—
(a) whether or not the mental harm was suffered as the result of a sudden shock; and
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and
(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose.
(4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.
74. The primary judge considered ss 34 and 35 of the Wrongs Act. His Honour found at [273]:
273. I will deal with ss 34 and 35 first. The defendant did not submit that s 34 disentitled the plaintiff from recovering damages. Appropriately, no submission was put that a reasonable person in the defendant’s position would not have foreseen “that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken”. There was no expert evidence to this effect and s 34 forms no part of the Amended Defence to the action. …
75. The College argued that it was not required to either raise s 34 or put forward expert evidence that the respondent’s psychiatric harm was not foreseeable. The section operates not as a defence, but a necessary condition of a central element of SMA’s claim, the burden of which lay on SMA to discharge.
76. The College submitted that the questions that ought to have been asked were whether:
(a)It was reasonably foreseeable that a person of normal fortitude in SMA’s position would suffer a psychiatric illness as a consequence of becoming voluntarily intoxicated and then having sexual intercourse or some other sexual encounter with another student (the intercourse or encounter constituting a sexual assault solely by reason of her level of intoxication); and
(b)If it was, whether reasonable care in the circumstances required that “students engaged in the revelry on 6 August 2015 not be directed to leave the residential part of the college”.
77. In respect of the submission that the approach of the primary judge was contrary to authority, the College referred to cases such as Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at [89] (quoting Lord Hope of Craighead in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 379-380) and Agar v Hyde [2000] HCA 41; 201 CLR 552 at [88]-[90] as establishing “unequivocally” that there is no general duty to prevent another from voluntarily participating in a risky activity. Here, the College argued that the activity was, according to the primary judge, becoming intoxicated in the presence of “drunk young men”.
78. Turning to the arguments of SMA, it was submitted that the proper approach to identifying the scope of a duty of care was precisely that applied by the primary judge, namely a “salient features” approach, citing the judgment of Gummow and Hayne JJ in Graham Barclay Oysters v Ryan [2002] HCA 54; 211 CLR 540 at [149], and Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180, where Gummow J said at [198]:
The question…is whether the salient features of the matter give rise to a duty of care… In determining whether a duty of care arises, attention is to be paid to the particular connections between the parties. …
79. SMA also supported the primary judge’s reliance (at [247] of the primary judgment) on Waters v Winter and the University of New England [1998] NSWCA 254. In that case, a plurality in the NSW Court of Appeal dismissed an appeal against a finding that the university had no relevant duty of care which extended to hiring security guards for a campus event, during which a student was assaulted. Relevantly, Stein JA set out the conclusion of the judge at first instance in that case at 7 (emphasis added):
In my opinion the relevant factors to be taken into account in deciding whether or not a duty of care was imposed on the University depends upon a consideration of the relevant degree of proximity between the University and the plaintiff student. Whether there was an inherent foreseeable risk of injury in the circumstances that eviction of a trespasser in the particular circumstances may lead to violence unless properly handled by professional security people and whether the University was vicariously liable for any negligence on the part of the Master of the college. Whilst I accept that the University is bound by a general duty of care towards its students to protect them from a risk of injury of which it is aware or ought to be aware and that the Master of the college was primarily responsible for the welfare of the students in the college I am not persuaded either that the Master was guilty of negligence in allowing this particular function to proceed without the provision of paid security staff nor that there was an independent duty of care imposed on the University to ensure that such protection was provided at the relevant time. …
80. Having extracted the above passage, as articulating the applicable scope of the duty of care, the primary judge stated at [248] (emphasis added):
248. In Waters a student living in a residential college on a university campus in Armidale was assaulted by a ‘gate crasher’ at a university event. The student sued the University alleging that it had failed to provide appropriate security at the event. Although the plaintiff failed in Waters, the statement of the scope of the duty of care set out above I think is applicable here. The duty described above is consistent with the pastoral protection that John’s purported to offer its residents. …
81. SMA argued on appeal that the relationship between the College and its students was not comparable to that of a hotel and a patron, such as was considered in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board & Scott (2009) 239 CLR 390 (a case concerning the right to exercise individual autonomy relied upon by the College and considered but distinguished by the primary judge at [251]).
82. In our view, the issue is resolved by a straightforward application of the Wrongs Act.
83. The College had accepted that it owed SMA, a resident of the College, a duty of care (primary judgment at [246]). The duty of care owed by the College was that of a reasonable person in the College’s position, who was in possession of all the information that the College either had, or ought reasonably to have had, at the time of the incident out of which the harm arose: s 42 of the Wrongs Act.
84. The content of that duty was to take reasonable precautions against risks of harm that were (a) foreseeable, (b) not insignificant, and (c) are precautions that, in the circumstances, a reasonable person in the same position would have taken: s 43(1) of the Wrongs Act.
85. Where the risk of harm is of psychiatric injury, the assessment of whether it was “a foreseeable risk” must be established by reference to the whether a person of normal fortitude in the same position as the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: s 34(1) of the Wrongs Act.
86. The circumstances or information known to the College at the time were as follows:
(a)The College held itself out as providing pastoral care (notwithstanding the College’s argument that it owed no more than the duty of an occupier). That included holding itself out as providing educational and religious support. The activities were not incidental, and the College saw its role as more important than simply providing accommodation: see primary judgment at [219]-[220].
(b)The College permitted alcohol to be consumed on its premises including in the residential areas of the College.
(c)The College at the time was aware of a drinking culture that was endemic to the College: primary judgment at [20], [127] and [130].
(d)The College exercised control over the residents’ behaviour through the policies which were enforced, including as to behaviour after hours, both on and off the College premises. Part of the College Alcohol Policy (found at page 22 of the Handbook) was to apply the norms of the broader community relating to resident behaviour and to ban binge drinking.
(e)On the evidence that was before the Court at first instance, there had been a number of incidents at the College where complaints of sexual assault had been made by female residents against male residents (or in one case, against a former male resident who had entered the College), after alcohol had been consumed, including at venues in Canberra such as Mooseheads.
(i)In 2012, as part of reporting to the ANU as to what steps the College was taking to improve its culture, the female residents involved in the incidents were described by the then Head of College as “vulnerable young women”.
(ii)In 2014, there was an incident with a complaint by a first-year female resident of sexual assault after the College residents had been drinking, after a “night out in Canberra” (being language used in the College’s records). On that occasion, the complaint was that the assault occurred in a bedroom when she returned to the College. The female had required counselling, which was provided by the Canberra Rape Crisis Centre.
(iii)Again in 2014, a different female student sought a transfer from the College to a different residential college at the ANU, and in that request, she described the consequences for her following a serious incident which occurred at the College. She had undergone counselling with a number of different services at the ANU and with the Rape Crisis Centre but was still experiencing anxiety and fear, which affected her ability to go to lectures and tutorials and to be around other residents.
(f)The previous incidents at the College meant that, at the time when the relevant duty of care was to be exercised, being the night of 6 August 2015, the College knew or ought to have been aware that:
(i)Residents at the College, and in particular female residents, were vulnerable to sexual assault where residents were heavily intoxicated, whether they were on or off the College premises; and
(ii)If an incident occurred, there were ongoing psychological consequences for the female resident involved.
87. In those circumstances, in 2015, the risk of harm may be described as the risk that an intoxicated resident of the College may physically (including sexually) assault another resident of the College, on or off the College grounds, resulting in that student suffering a psychiatric illness. Such risk was heightened if the victim was also intoxicated.
88. Further, the risk of psychiatric illness following a sexual assault was a risk that might be suffered by a person of normal fortitude. In the circumstances known to the College at the time, that risk was foreseeable, and it was not insignificant.
89. At the time of the incident out of which the harm arose occurred, the College had the additional information (as found by the primary judge) that there was a serious situation at hand with groups of residents – indeed two-thirds of the College – in a state of excessive drunkenness (see primary judgment at [207]-[209], [255]).
90. The above reasoning is consistent with the primary judge’s application of s 43 of the Wrongs Act, as seen at [275]-[277]:
275. In my view, looking at foreseeability, the defendant was in possession of all the relevant information that it needed in order to exercise the standard of care required of a reasonable person. As acknowledged by Mr Johnston he knew that the students drank too much alcohol, both on and off College premises, and he knew that “if the girl had had too much to drink, it could not be consent”.
276. As to s 43, 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. As Mr Johnston himself said, if he had known that the students were so drunk, he would not have directed them to leave the premises.
277. Returning to the pastoral analogy accepted by Mr Johnston, and as I observed in argument, the shepherd was sending his flock in the direction of a cliff.
91. Acting reasonably, the precautions a residential college holding itself out as providing pastoral care for the welfare of the residents should have taken to guard against the risk of sexual misconduct occurring (on or off site) plainly extended to implementing the policies it had in place for controlling the behaviour of the residents. In accordance with the College’s policy as set out in the Handbook, the direction that should have been given was one that would have directed the residents to the common room and further, that whatever event was occurring must cease immediately as it was in clear breach of the College’s Alcohol Policy.
92. Accepting that the students were adults with the concomitant degree of freedom and autonomy, they were adults whose behaviour was subject to a behavioural code that was in place at the College. The directions given by persons such as the Night Porter, the Community Coordinator, the Deputy Head and the Head of College were directions with which they were required to comply. There is no error in the primary judge’s finding that the duty of care extended to the direction given by the College, at the College, to the residents. As the primary judge found at [262], it was a matter of common sense.
93. It will be readily apparent from what has been set out above that the reasonable precautions to be taken did not involve sending the already intoxicated students away from the College to continue their event off site. We accordingly see no error in the primary judge finding that the College breached its duty in the direction that was given.
Whether the College’s direction to leave the premises caused the harm suffered by SMA
94. The primary judge’s findings as to causation are set out at [278]-[279] of the primary judgment:
278. A difficulty that I initially thought would confront the plaintiff’s case is that the precaution of telling the students not to leave the College could have been ineffective and perhaps even offered greater options for improper conduct in the students’ bedrooms.
279. On further reflection however the precautions available were not limited to a simple “Don’t go out” or “Go to the Common Room” instruction. The College had disciplinary options available to it. These could have placed the students’ ability to continue residing at John’s in jeopardy. They could have been warned of suspension or expulsion, or perhaps even threatened with fines, as were later imposed upon the Senior Residents and members of the Residents’ Association as a result of the Pub Golf event (Exhibit B).
95. The College challenged these findings and argued that the evidence did not establish a causal link between the direction to leave the College and the harm that resulted. It submitted that SMA did not give evidence that but for the direction, she would have stayed in the College. Further, that consequence is implausible because the invitation to the Pub Golf event set out how the night was to progress. The plan was for the students to leave the College from 9.30pm, with the “first hole” to commence at Uni Pub at 10:00pm.
96. The College argued that what occurred when the students left the College was that they proceeded to the Uni Pub in accordance with the predetermined itinerary. The only logical inference is that they would have done so regardless of the direction made by the College.
97. As to the primary judge’s findings at [279], the College argued that it is not to the point that possible alternative measures could have been taken. What was necessary to establish was that they would have been effective, and there was no evidence that was the case.
98. SMA argued that the primary judge dealt with the issue of causation in a conventional way. Upon properly considering the evidence and applying a common-sense test, the primary judge found that the failure to take steps to avert the risk and the direction to send the students away from the College was a “necessary condition of the happening of the harm” (being the words used for factual causation in s 45 of the Wrongs Act) suffered by the respondent.
99. In our view, there are two difficulties with the reasoning of the primary judge. As his Honour found, the breach of the College was in directing the students to leave the College “to venture to drinking venues where it was inevitable that more alcohol would be consumed”: primary judgment at [101]. However, his Honour did not address the fact that the students who were participating in the Pub Golf event were following a particular itinerary, and thus were all expecting to leave the College from 9.30pm to do exactly what occurred; namely, attend the Uni Pub and ultimately congregate at Mooseheads, and to continue drinking more alcohol at those venues (thus becoming more intoxicated). Even if the direction to leave the College occurred half an hour earlier than the Pub Golf participants had planned to leave, it is hard to accept that the direction itself was a necessary condition of the course of events that then followed. At most, it brought forward a situation that was to occur even without the direction – that of drunk College residents leaving the College together to drink more alcohol at specific venues in Canberra.
100. The second difficulty arises with the primary judge’s canvassing of other alternative measures that could have been taken, without going on to consider whether they were precautions that a reasonable person in the College’s position would have taken in the circumstances (s 43 of the Wrongs Act), at the time Mr Johnston gave the direction, and further, whether the failure to take those precautions was a necessary condition of the happening of the harm.
101. It is important to recall that the primary judge expressly considered the allegation by SMA that the College should not have allowed the Pub Golf event to have occurred (see [8] of the primary judgment). His Honour found (at [15]) “I do not think that the defendant can be held responsible for allowing the Pub Golf event to proceed”. As that finding has not been challenged on appeal, the available precautions or measures are to be assessed (on the counterfactual) in the context of the Pub Golf event proceeding at the College, rather than the event not proceeding at all.
102. 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.
103. Accordingly, the College has established error with respect to the primary judge’s finding as to causation in relation to the direction to leave the College.
Whether there was error in the primary judge’s findings concerning the College’s handling of SMA’s complaint
104. In dealing with the duty owed by the College in respect of SMA’s complaint, and whether it was breached, it is important to understand what SMA’s case was and then what the primary judge found.
105. SMA pleaded that the College had a duty of care in responding to claims of the type made by her. That included:
a)Ensuring that an adequate policy for the handling of sexual harassment and assault is in place and enforced within the College.
b)Ensuring that residents who have reported possible sexual misconduct are not blamed, ostracized or harmed as a consequence of their report.
c)Ensuring that residents who have reported possible sexual misconduct are taken seriously.
d)Ensuring that any response to reports of possible sexual misconduct are calm and empathetic.
e)…
f)Ensuring that residents who have reported possible sexual misconduct are provided with counselling and psychological support.
g)…
h)…
i)…
j)Ensuring that perpetrators of sexual assault are reported to the police.
k)Ensuring that perpetrators of sexual assault are reported to the ANU.
l)Ensuring that perpetrators of sexual assault are removed from contact with victims of sexual assault.
m)Ensuring that perpetrators of sexual assault are excluded from the College.
106. SMA pleaded a further risk of psychological harm if:
(a)The sexual assault was not responded to appropriately;
(b)SMA was not sufficiently treated in a timely fashion; and
(c)SMA was not protected from further potential conduct of NT.
107. The failure to take precautions against the risk included (among other things):
(a)Failing to arrange for SMA to have immediate psychological advice and counselling;
(b)Blaming SMA for the sexual assault;
(c)Blaming SMA for excessive consumption of alcohol; and
(d)Dismissing the SMA’s concerns.
108. The relevant findings of the primary judge are at [280]-[282] (emphasis added):
280. I think the plaintiff’s claim arising from the meeting on 12 November 2015 is very strong. The College, in particular after having received the complaint, had a duty to investigate that complaint competently and in doing so, treat the plaintiff in a manner consistent with its obligation to provide pastoral care.
281. On Mr Johnston’s own evidence he had a lifetime of experience of dealing with students both at a school level and a tertiary level. He had also previously dealt with complaints of sexual assault. It is plainly foreseeable that a person making such a complaint is vulnerable and susceptible to psychological harm should the complaint be improperly dealt with.
282. There can be little doubt that a number of the comments in the 12 November 2015 meeting were entirely inappropriate. While I acknowledge that Mr Johnston was faced with essentially competing versions, and it was not his role to find one way or the other, he had no reason to doubt the plaintiff’s veracity. To say things such as “Sometimes when boys are drunk they can be quite arrogant but are often underperformers” and “I’m not even sure that anything did happen in the alleyway” are a massive departure from the pastoral duty of care that Mr Johnston, as Head of College, had assumed.
109. Earlier in considering the duty of care owed by the College, the primary judge stated at [267]-[270] of the primary judgment (emphasis added):
267…The plaintiff’s case is not that she should have been favoured over NT, or that NT should not even have been interviewed, but rather that the manner in which Mr Johnston dealt with her was negligent. This is a separate issue to his obligation to take account of NT’s position.
268. It is also to be remembered that the plaintiff came forward to the College seeking its assistance. She sought out the pastoral care that the College ‘advertised’ to its residents.
269. The first meeting with the College took place on 26 October 2015. The plaintiff expressed her concerns and left with the expectation that her complaint… would be properly dealt with. The meeting was non-confrontational and the plaintiff felt “buoyed”. She did not hear back from Mr Johnston until the next meeting on 2 November 2015. This meeting was the beginning of the shift in the College’s approach. By this time Mr Johnston had spoken to NT. Instead of being the shepherd he now became an investigator and adjudicator, and at the same time, most surprisingly, appointed himself as the support person for NT. I am not suggesting NT was not entitled to a support person, rather it should not have been Mr Johnston.
270. The Resident Handbook places the obligation for an investigation upon the Deputy Head of College. Ms Curtis however did not conduct the investigation. There may have been a particular reason for this, as hinted in the medical report annexed to the affidavit forming Exhibit 22. Whatever the case, Mr Johnston decided to take over his deputy’s role, as well as the broader role I have described above.
110. There can be little doubt that the College had a duty to investigate complaints by residents against each other competently. That was the effect of SMA’s pleading that the policy for the handling of complaints of sexual harassment be adequate and enforced. That duty was what the primary judge accepted at [280] and we do not see that the finding was in error.
199. The primary judge went on (at [318]) to refer to the particular point in Ibbett at [35] that:
In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once.
200. His Honour then found at [319]-[320]:
319. I think aggravated and exemplary damages should be awarded here. The [College’s] assumption of a dual, if not more than dual, role in dealing with [SMA’s] complaint was I think a contumelious disregard of her entitlement to fair treatment. My view is enforced by my conclusion that the [College’s] approach was influenced by its desire to protect its reputation… at the expense of [SMA’s] welfare. In doing so the [College’s] conduct also accentuated the suffering of [SMA].
320. I think this case fits within the circumstances which the above statement by the High Court refers to. I will therefore allow a single sum by way of aggravated and exemplary damages. This sum is $30,000.
201. The College complained that it was not open to the primary judge to find that the appellant (more particularly Mr Johnston) acted to protect the College’s reputation at the expense of SMA. As no error was established with regard to that finding properly understood, for reasons set out at [62] above, the basis for this challenge falls away.
202. There is some force in the College’s argument as to what was said at [316], but quite apart from the primary judge’s finding, we consider that this was a case where it was appropriate to award at least aggravated damages. The College’s treatment of SMA in the handling of her complaint was not merely conduct which fell short of the standard of care owed in the sense that it was inept; it was conduct that humiliated SMA and the dual role performed by Mr Johnston created an unnecessary power imbalance that exacerbated those circumstances. In that way, we respectfully concur with the primary judge’s finding that the College’s conduct accentuated the suffering of the SMA.
203. Although there was a separate ground of appeal in relation to the quantum of the sum awarded, the College did not submit that the sum of $30,000 itself was an inappropriate figure, such as being outside any particular range. Although it may have been on the higher side or perhaps close to the top of what might separately be awarded for aggravated damages, without more, we are not persuaded it was excessive.
Cross Appeal
(a) Did the primary judge err with respect to the award of general damages?
204. The primary judge’s finding on general damages is at [295] of the primary judgment, with the reasons for such finding set out in the preceding paragraphs at [288]-[294], as follows:
288. Starting with general damages, [SMA]suggested a figure of “$225,000+”. I assume the figure was expressed in this way to indicate that it was the least [SMA] should be awarded. [SMA’s] figure was also expressed to include aggravated damages.
289. I will deal with aggravated and exemplary damages separately. The [College] suggested $75,000 for general damages, which I think is more realistic, although not quite sufficient.
290. [SMA] was a high functioning, high achieving, ambitious young woman. She has now had almost five years of distress combined with an abandonment of her hopes overlaid with a substituted ambition which may not be realisable and may well be a cause of further anguish. If [SMA] did not feel capable of pursuing the career she hoped for in law or finance, because of stress, one must wonder at her capacity to cope with being a doctor, let alone progressing through her studies. I do appreciate however, that a medical degree, if achieved, would not necessarily dictate that she enter practice either generally or in any specialty. She might well find less stressful employment in a medically related occupation.
291. The [College] submitted that my assessment of the extent of [SMA’s] injury should be tempered by her continuing involvement in university life and her achievements both at university and afterwards. It was pointed out that she had become the Treasurer of the Residents’ Association and had taken their finances from a parlous to a healthy state. She carried on playing sport and ultimately achieved good marks. The fact that she was not happy at work could be as much attributable to the nature of the work as to her psychological condition.
292. Dr Parmegiani said that [SMA’s] involvement in activities could have been a diversion for her to prevent her ruminating on her condition. Further her capacity to achieve good marks was enhanced by the special consideration she received. Dr Parmegiani agreed that this was an important factor.
293. [SMA] may have not liked the work or found it boring. Nevertheless she also found it stressful, and in particular when working at the Australian Institute of Health and Welfare she was often tearful.
294. It is also important to recognise that in all probability [SMA], but for her injury, would have achieved a better mark at university and also been able to complete a degree in a different field.
295. I think general damages should be assessed at $90,000. Interest on half of this amount over five years at 2% is $4,500.
205. It is manifest from how the primary judge calculated the interest at [295] that his Honour allocated 50% of that sum to the past (upon which interest is awarded) and 50% to the future. The purpose of the interest component is to compensate the plaintiff from being kept out of her money during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663.
206. The above reasoning of the primary judge is important because of the approach taken to an award of general damages on appeal, which was discussed by Mossop J in Scuderi v Raskurasingham [2017] ACTSC 41 at [44]:
An appellate court should not interfere with an assessment of general damages for personal injury simply because it would have awarded a different figure if it had tried the case [at] first instance. Where an assessment is made and it has not been shown that the trial judge acted on any error of [principle] or misapprehension of the facts the appellate court will only interfere if it is satisfied that the charge made a “wholly erroneous estimate” of the damages suffered: Precision Plastics Pty Ltd v Demir[1975] HCA 27; (1975) 132 CLR 362 at 369; Sutherland Shire Council v Major[2015] NSWCA 243 at [40]. The assessment of general damages is neither scientific nor normative: Franklins Ltd v Burns; Burns v Franklins Ltd[2005] NSWCA 54 at [52]. It relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart[2013] ACTCA 34 at [30]; Baxter v Insurance Australia Ltd[2015] ACTSC 273 at [32].
207. The College drew the Court’s attention to two other cases that reinforce the point, being Khan v Polyzois [2006] NSWCA 59 at [24], and Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11].
208. On the Cross-Appeal, SMA made no submission that the primary judge misapprehended the facts. The argument was one of inadequacy, in that the award was “not within the range of damages” applicable in SMA’s circumstances as found by the primary judge.
209. SMA emphasised that s 99 of the Wrongs Act provides that in assessing the quantum of an award of general damages, the Court may refer to earlier decisions of “other courts”. The words of that section founded the submission that awards for general damages in the ACT were significantly lower than those in other jurisdictions (specifically, in NSW and Victoria), and that this case represented an opportunity to bring the awards for general damages for “cases involving sexual assault and PTSD” into line with those jurisdictions.
210. A table of cases said to be comparable, or at least relevant to the argument, was provided. The cases are discussed in detail below, but it is useful at this point to know that the cases in the Territory point to a range of general damages of between $90,000 and $100,000. The cases in New South Wales relied upon for awards of general damages ranged between $275,000 and $400,000. The cases in Victoria relied upon by SMA included a general damages component ranging from $215,000 to $300,000.
211. Before dealing with SMA’s argument on the cross-appeal, it is important to first state that consideration has been given to whether the finding earlier in these reasons as to a lack of causation in respect of the first limb of SMA’s claim had any impact on the sum to be awarded for general damages. However, there was no aspect of the general damages that warranted being carved out. This is not a case, for example, where the plaintiff was experiencing flash backs from the night itself which were affecting her ability to function or socialise. The College’s breach in handling SMA’s complaint was found to be four times more significant in causing the injuries suffered by her. Accordingly, the general damages to be awarded for her pain and suffering (non-economic loss) remain unaffected by that finding.
212. Turning then, to consider the substance of SMA’s complaints, there are three reasons why SMA’s challenge cannot succeed:
(1)First, the statutory regime in the ACT is different from that which exists in NSW and Victoria, and that has consequences for any range established in this jurisdiction as opposed to other jurisdictions.
(2)Second, the cases relied upon to support a higher range were not cases that bore any resemblance to the plaintiff’s circumstances in the present case.
(3)Third, even if a higher range had been established on authorities in jurisdictions that were comparable to the circumstances of SMA here, that does not of itself give rise to a conclusion that the primary judge’s award was a “wholly erroneous estimate” of the damages suffered.
213. As to the first of those reasons, and as submitted by the College, the Wrongs Act in the Territory does not have any minimum threshold of damages for non-economic loss that must be met before damages become available. That statutory position is to be contrasted with the position in both NSW and Victoria. In NSW, ss 16 and 17 of the Civil Liability Act 2002 (NSW) require the Court to have regard to a pre-determined maximum amount, providing that no such damages are available unless the severity of the non-economic loss is at least 15% of a most extreme case (see s 16(1) of that statute). The statutory equivalent in Victoria is s 28LE of the Wrongs Act 1958 (Vic). It restricts the availability of non-economic loss damages to those cases in which the plaintiff has suffered “significant injury” to be determined in accordance with a further statutory provision (s 28LF), with the maximum amount of damages fixed (s 28G).
214. Because a different statutory regime applies in NSW and Victoria, cases at the lower end of the spectrum of severity in terms of general damages awards involving PTSD and sexual assault simply do not feature in the authorities in those states. While consistency across jurisdictions in the application of common law principles to the tort of negligence is plainly a desirable outcome, where legislatures have intervened in different ways, that statutory intervention cannot be ignored. It is neither a proper nor fair comparison to draw on higher ranges in other states to argue that the Territory is out of step with more significant compensation being awarded to PTSD sufferers across the Territory’s northern and southern borders.
215. As to the second of those reasons, even if it were assumed that the statutory regimes for the awarding of general damages were either similar to that in the Territory or that, contrary to the above, any differences in the statutory regimes were not significant, the specific cases relied upon by SMA to support a higher amount for general damages do not substantiate the argument. What the cases in other jurisdictions show is that those plaintiffs whose pain and suffering was significantly greater than that of SMA, both in the past and in the future, were awarded greater compensation in general damages.
216. Starting with the cases relied upon by SMA in the NSW jurisdiction, they were as follows: “B” v Reineker [2015] NSWSC 949 (“B” v Reineker) (general damages of $350,000 awarded), MC v Morris [2019] NSWSC 1326 (MC v Morris) (general damages of $400,000 awarded) and Ms P v Mr D [2020] NSWSC 224 (general damages of $275,000 awarded) (Ms P v Mr D). It is noted that in the latter two cases, those amounts included unspecified awards of aggravated damages and it is important to remember that the primary judge made a separate award for aggravated damages in relation to SMA.
217. As the College submitted, “B” v Reineker was a case where the defendant was found to have sexually assaulted the plaintiff numerous times, beginning when the plaintiff was thirteen years old and continuing until she was twenty-one. The abuse began when the defendant was the plaintiff’s teacher when she was at high school. It was held that the plaintiff had been groomed by the teacher in abuse of his position of trust and authority. The plaintiff became pregnant with the defendant’s child on two occasions. Because of the prolonged abuse, the plaintiff suffered from PTSD and a major depressive order. The plaintiff also suffered from anxiety, flashbacks, anger, interrupted sleep and nightmares. She had been deprived of a normal adolescence and would suffer by reason of the defendant’s conduct for the rest of her life. $350,000 was awarded in general damages, with $200,000 allocated to the past and $150,000 allocated to the future.
218. In MC v Morris, and again as submitted by the College, the defendant was the plaintiff’s neighbour. The defendant had paid him to do yard work and carry out odd jobs when he was thirteen. The defendant had groomed the plaintiff during those visits before inducing him to engage in sexual acts. The plaintiff was sexually assaulted numerous times over a period of three years. After the sexual abuse ceased, the defendant maintained contact with the plaintiff and spoke to him about the defendant’s continuing sexual abuse of other young boys. The defendant’s conduct was found to have had a life-long impact on the plaintiff from the age of thirteen. The plaintiff’s academic achievements declined, which led to early termination of his education, he began smoking and drinking to excess from the age of fifteen. The plaintiff’s marriage broke down in 2010 and he damaged his house which led to him being involuntarily admitted to a mental health facility for three months. Since the time of the abuse, he had suffered from intrusive thoughts, nightmares, poor sleep, anxiety and social withdrawal. The Court found that the plaintiff’s PTSD and major depressive disorder were likely to be permanent. The plaintiff’s loss of enjoyment of life as a result of the degrading and humiliating abuse were found to be “immense”. $400,000 was awarded in general damages including aggravated damages, which comprised $250,000 for past damages, and $150,000 for future damages.
219. In Ms P v Mr D, the defendant was the plaintiff’s step-father. He began sexually assaulting her when she was ten years old, with the abuse continuing on a regular basis for many years. When the plaintiff was fifteen years old, she became pregnant to the defendant. She initially lied to her mother about who the father of her child was. Shortly before the plaintiff was to give birth, the plaintiff’s mother discovered the paternity and confronted the defendant. The defendant left the property with the plaintiff, drove to a motel, and again sexually assaulted the plaintiff. The plaintiff gave birth to their son the following day. The plaintiff and defendant continued to live together with the defendant further sexually assaulting her shortly after the baby was born. The primary judge found that the plaintiff’s life had been deleteriously affected from the age of ten and certainly from the age of fifteen. She had experienced serious psychological trauma, been deprived of the normal incidents of adolescence and young adulthood. The effects on her had been sufficiently significant to cause her to self-harm and entertain suicidal ideation. Her education was severely interrupted, she had no relationship with her mother and was deprived for many years of the opportunity of pursuing a career. $275,000 was awarded in general damages, including aggravated damages, with 70% of that amount attributed to the past.
220. The detail of the plaintiff’s circumstances in each of the above cases has been set out in order to demonstrate the very significant contrast in the facts of those cases with those pertaining to SMA. In every case relied upon by SMA to support her claim for a greater award of damages, the circumstances resulting in more sizeable compensation for general damages involved very significant to extreme and ongoing harm in the past, with significant and destructive ongoing psychological consequences in the future. We accept the submission of the College that those cases are simply inapt for comparison.
221. The same reasoning applies to the authorities relied upon in Victoria, which are as follows:
Case
General damages component awarded
Erlich v Leifer [2015] VSC 499
$300,000
FFF v BBB [2017] VSCA 156
$215,000
Hand v Morris [2017] VSC 437
$260,000
Gann v Hosny [2017] VSCA 303 (Gann v Hosny)
$300,000
Waks v Cyprys & Ors [2020] VSC 44
$200,000
Perez v Reynolds [2020] VSC 537
$265,000
222. As with the cases relied upon in the NSW jurisdiction, and apart from the case of Gann v Hosny (dealt with separately below), the above-named authorities are all cases where there was ongoing abuse that had a serious and significant impact, which was found to endure for each plaintiff’s lifetime. The circumstances in each case involved childhood sexual abuse suffered by each plaintiff. They were each abused over a period of time, and had subsequently suffered PTSD or psychiatric injury, depression and anxiety.
223. The impacts described in the Victorian cases relied upon included ongoing anger, guilt or disgust, anxiety, and (in most cases) flashbacks, being intrusive images, re-experiencing the abuse, sometimes daily. The plaintiffs also had subsequent behavioural problems from a young age, including abuse of alcohol and illicit drugs. The Court findings in each of the above cases included references to a significant “ongoing” or “life-long” impact.
224. The case of Gann v Hosny was an appeal which concerned an allegation of fraud by Mr Gann against Mr Hosny in relation to a claim that had previously been determined. The appeal sought to set aside the earlier judgment. It is unrelated to the point under consideration here. It appears that SMA intended to rely upon the earlier first instance decision of Hosny v Victoria Racing Club & Anor [2012] VCC 661, which was later the subject of the application to set it aside, heard by the Victorian Court of Appeal. In that case, Mr Hosny was driving a shuttle bus for the Victoria Racing Club. During the course of performing his duties he was physically assaulted by a patron at the Club who had attempted to board the shuttle bus when it was full and was asked by Mr Hosny to disembark. That resulted in an assault that was entirely unprovided, with Mr Hosny receiving multiple punches (with a clenched fist) to the head and being struck in the face.
225. The assault resulted in the plaintiff suffering “severe” and “profound” PTSD with anxiety and depression which rendered him incapable of working. The assault caused a dramatic change in the plaintiff’s personality, his marriage broke up, he became homeless, and had an inability to cope with day-to-day activities. He was constantly fearful, waking with flashbacks. He required substantial medication and regular and intensive psychological support. The trial judge accepted that the plaintiff would never have a capacity to return to work and would suffer anxiety, stress and panic attacks for the foreseeable future. The impact of the assault upon the plaintiff was described by the trial judge as “devastating”.
226. The Court generally eschews a detailed comparison of symptoms between plaintiffs, as each case must be decided on its own facts. In part, that is because of the caution expressed in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 at [11] not to be “overborne by what other minds have judged right and proper for other situations”.
227. However, the nature of the submission made on appeal does call for an assessment of whether the ranges relied upon in jurisdictions elsewhere involve the same degree of pain and suffering. They are the contextual background against which SMA submits the primary judge erred in the award made. Having undertaken that task, all of the decisions involved plaintiffs in circumstances very different from those of SMA, in terms of the extent of injury and disabilities suffered by her, their impact on her life, and the duration of that impact. The findings of the primary judge were not challenged in that regard.
228. To the extent that the authorities referred to in other jurisdictions provide any assistance, they act as a reference point for damages awarded in cases where the impact was much greater than that suffered by SMA, both in the past and ongoing. As seen from the above discussion, the sums at times included aggravated damages. Taking into account that the primary judge in the present case separately awarded $30,000 for aggravated damages, the authorities in NSW and Victoria serve to confirm that the award of $90,000 in general damages by the primary judge here was well within the range of general damages.
229. The third reason listed at [212] above is perhaps a different way of expressing the same conclusion. Putting aside whether ranges in other jurisdictions are of assistance, what must be established is that the primary judge erred – that his Honour’s award was wholly erroneous. SMA fairly drew the Court’s attention to two relatively recent cases in the Territory, each made by the primary judge where similar amounts were awarded. The first was AB v Australian Capital Territory [2018] ACTSC 16 (AB) where $90,000 was awarded in general damages for a plaintiff who suffered PTSD after being verbally abused and sexually assaulted by another patient at Canberra Hospital. The second was HL v HP [2019] ACTSC 299 where $100,000 was awarded in general damages, where a plaintiff was sexually assaulted by the boyfriend of her sister when she was a child, and the boyfriend went on to marry the plaintiff’s sister. The plaintiff suffered PTSD and an eating disorder. Elkaim J in that case referred to the earlier decision of AB. His Honour found that the plaintiff’s condition in HL was worse, but not to a significant degree, and (at [51]) that “[r]eminders and triggers are likely to be more frequent and continue for a greater length of time”.
230. Neither of those judgments were the subject of appeal. The circumstances of SMA here are not out of step with each of the ACT decisions. With no error of principle otherwise established, there is no foundation for the complaint that the damages awarded to SMA were manifestly inadequate or could be described as wholly erroneous.
(b) Did the primary judge err with respect to costs?
231. Judgments as to costs are matters for the Court’s discretion and again, error of the kind expressed in House v The King at 505 must be established on appeal.
232. In the present case, there was a question of whether the primary judge erred in principle. However, this ground also falls away in light of the reasoning with respect to the quantum of damages awarded for economic loss, combined with the fact that SMA has not established error in relation to the quantum of the award for general damages.
233. The offer of compromise which founded an order for costs on a solicitor and client basis was $400,000 plus costs. The other findings on this appeal mean that quantum has been reduced below that amount. Accordingly, there is no basis for r 1010 of the Court Procedure Rules 2006 (ACT) to operate in the first place, which means that it is not necessary for the Court to determine whether the discretion in the application of that rule miscarried.
Conclusion and Orders
234. The College has succeeded in part in relation to its appeal of the orders made by the primary judge, which has a flow on effect for the quantum to be awarded to SMA, as well as the separate costs orders in the court at first instance and the costs of the cross-appeal, part of which did not need to be determined.
235. Substituting the economic loss components as found on appeal for those awarded by the primary judge, the total sum to be awarded is as follows:
General damages
$90,000.00
Interest on general damages
$4,500.00
Past medical expenses
$500.00
Future medical expenses
$7,500.00
Past economic loss
$35,000.00
Future economic loss
$100,000.00
Exemplary and aggravated damages
$30,000.00
Total
$267,500.00
Costs
236. Although it was not entirely successful on appeal, the College was successful on two issues which were not clearly severable and had the effect of significantly reducing the damages to be awarded. That result may be viewed as substantial success. Accordingly, the College is entitled to its costs on appeal.
237. However, SMA has still succeeded on her claim and is entitled to the costs of the primary proceedings on the ordinary basis. She did not succeed on the cross-appeal, but it was not necessary to determine one of the two issues, and the cross-appeal did not otherwise substantially lengthen the proceedings. Taking those matters into account, the just outcome is to simply order the parties to pay their own costs of the cross-appeal.
238. The above result may have different costs consequences from those already ventilated before the primary judge, in that the parties may wish to raise different offers of settlement either at first instance or in the course of the appeal proceedings. To take account of that possibility, it is appropriate to grant liberty to the parties to apply in respect of the costs orders both at first instance and on appeal. Although any subsequent application to vary costs orders of the primary proceeding might equally have been dealt with by the primary judge, in the interests of the efficient and final disposition of the proceedings, we consider this to be the preferable course.
Orders
239. The Orders are:
(1)The appeal is allowed in part.
(2)Order 1 of the orders made by Elkaim J on 7 August 2020 is set aside and in lieu thereof, the following order is made:
(i)Judgment is entered for the plaintiff in the sum of $267,500.
(3)Order (b)(i) of the orders made on 4 September 2020 is set aside and in lieu thereof, the following order is made:
(i)The defendant is to pay the plaintiff’s costs of the proceedings.
(4)The respondent is to pay the appellant’s costs of the appeal.
(5)The cross-appeal is dismissed with each party to pay their own costs.
(6)Liberty is granted to the parties to apply to vary any of the above costs orders within 14 days.
I certify that the preceding two hundred and thirty-nine [239] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.
Associate: Zoe Saunders
Date: 29 June 2022
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