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)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
John XXIII College v SMA [2022] ACTCA 32
Case
[2022] ACTCA 32
Decision Date
CaseChat Overview and Summary
The appeal concerned a student who was sexually assaulted outside a nightclub after being directed to leave the premises of John XXIII College, a residential college at the Australian National University. The student brought proceedings against the College alleging negligence. The primary judge found that the College owed a duty of care to the student that extended to the directions it gave and the manner in which it handled complaints, and that the College had breached this duty, causing the student's psychiatric injury. The College appealed this decision to the Court of Appeal of the Supreme Court of the Australian Capital Territory.
The Court of Appeal was required to determine whether the primary judge erred in finding that the College owed a duty of care to the student, and whether this duty extended to the directions given and the handling of complaints. The Court also considered whether the primary judge made errors in factual findings, whether breaches of duty were established on the evidence, and whether any such breaches caused the student's psychiatric injury. Further issues included whether the primary judge erred in failing to apply the presumption of contributory negligence under s 95 of the *Civil Law (Wrongs) Act 2002* (ACT), and whether damages awarded for economic loss, aggravated and exemplary damages were erroneous. The student cross-appealed, arguing that the general damages awarded were grossly inadequate, and also challenged the primary judge's costs orders.
The Court of Appeal allowed the appeal in part. It set aside the primary judge's judgment and substituted it with a judgment for the plaintiff in the sum of $267,500. The Court also set aside the primary judge's costs order and ordered that the defendant pay the plaintiff's costs of the proceedings. The Court found that the College was liable for negligence, but reduced the damages awarded by the primary judge. The cross-appeal was dismissed, with each party to bear their own costs of the cross-appeal. The Court of Appeal ordered that the respondent (the student) pay the appellant's (the College's) costs of the appeal. Liberty was granted for parties to apply to vary the costs orders within 14 days.
Orders
Orders of the court
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.