SMA v John XXIII College (No 2)
[2020] ACTSC 211
•7 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SMA v John XXIII College (No 2) |
Citation: | [2020] ACTSC 211 |
Hearing Dates: | 13 July 2020 – 29 July 2020 |
DecisionDate: | 7 August 2020 |
Before: | Elkaim J |
Decision: | See [322] |
Catchwords: | TORT LAW – NEGLIGENCE – Breach of Duty of Care Owed – Residential college duty to student – failure to stop drinking event – direction issued to students to leave the college in intoxicated state – failure to properly handle sexual assault complaint COMPENSATION – DAMAGES – General Damages – Past and future economic loss – past and future medical expenses – aggravated damages – exemplary damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 34, 35, 42, 43, 44, 45, 46, 139H |
Cases Cited: | Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 |
Parties: | SMA (Plaintiff) John XXIII College (Defendant) John XXIII College Resident’s Association Inc (Second Defendant) |
Representation: | Counsel A Bartley SC with J Ronald (Plaintiff) J Chapman (Defendant) M Hutchings (Second Defendant) |
| Solicitors Shine Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant) Barry Nilsson Lawyers (Second Defendant) | |
File Number: | SC 354 of 2018 |
ELKAIM J:
The plaintiff commenced a Bachelor of Advanced Science degree at the University of New South Wales (UNSW) in 2014. Her original intention was to commence a law degree but her Australian Tertiary Admission Rank (ATAR) of 98.2 was not sufficient for her to undertake this degree. In the same year, the plaintiff became aware of a combined Bachelor of Commerce and Bachelor of Laws degree available at the Australian National University (ANU).
The plaintiff transferred her studies to ANU and took up residence in a college operated by the first defendant (‘John’s’). This college is an affiliate college to the ANU.
All of the proceedings involving the second defendant (the incorporated student association at John’s) resolved on the second day of the hearing. I will hereafter refer to the first defendant as the defendant.
Sometime during the night stretching over 6 and 7 August 2015 the plaintiff had sexual intercourse with another student who also resided at John’s. The plaintiff did not consent to this activity, in fact she was so intoxicated that she has no memory of the event.
The reason the plaintiff was intoxicated to such a degree was because she had attended an event known as the Pub Golf event. This activity had no relationship to the game of golf but rather was a drinking spree that began at John’s and ended, after two intermediate stops, at a licensed establishment called Mooseheads.
The sexual encounter took place in the alleyway alongside Mooseheads. The plaintiff did not become aware that she had been involved in this encounter until, about 10 days later, a friend told her that she had heard that the other party to the encounter had been joking about his achievement.
Since finding out about the sexual encounter the plaintiff says she has suffered damages in the form of psychological injury which has in turn led to significant suffering on her behalf, as well as economic loss arising from her diverging from the path that she had hoped to follow but for these events.
The plaintiff says the defendant is responsible for her damages for one or more of three reasons. Put broadly they are: Firstly the defendant should not have allowed the Pub Golf event to have occurred at all; secondly it should not have directed the students to leave the College premises during the evening of 6 August 2015; and thirdly the defendant’s manner of dealing with a complaint that the plaintiff made to it was inappropriate. The defendant’s involvement in these three actions was alleged to be in breach of the duty of care it owed to the plaintiff.
The defendant admitted it owed a duty of care to the plaintiff, but challenged the extent of the duty and whether it had been breached.
The Civil Law (Wrongs) Act 2002 (ACT) applies to the action. The relevant sections are set out below.
It is important at this stage to record a matter concerning the pleadings. The plaintiff relied on an Amended Statement of Claim dated 4 October 2019. Paragraph 63 of this document sets out some particulars of negligence. They include:
(vii)failure to inform female students that the excessive consumption of alcohol at College Drinking Events put them at increased risk of sexual assault;
(viii)failure to take any or any sufficient steps to prevent the development of a culture within the College of excessive alcohol consumption and subsequent sexual assaults upon females by males;
(ix)failing to take any step or any sufficient step to prevent the matters particularised at particular of negligence (vii) above was tolerated as part of the culture of the College.
On 30 June 2020 sub-paragraphs (viii) and (ix), as set out in the preceding paragraph, were specifically abandoned by the plaintiff. It must be recognised that no part of the plaintiff’s claim can be proved through the establishment of these alleged acts of negligence. I make this point here because the defendant was particularly concerned about the opening address by senior counsel for the plaintiff which, it was asserted, strayed into areas covered by the abandoned allegations.
I informed the defendant that I would not allow the sub-paragraphs, either by intention or subtle infiltration, to re-enter the plaintiff’s case. However, as I pointed out in discussion, there might be evidence which could be seen as supporting the abandoned allegations but is also relevant to one or more of the remaining allegations of negligence.
The plaintiff’s claim for damages is under the following heads: General damages, past and future economic loss and medical expenses. Interest is also claimed where permissible. In a case in which concessions were hard to identify, past medical expenses were agreed (but subject to liability) at $500.
By way of summary of my ultimate views I do not think that the defendant can be held responsible for allowing the Pub Golf event to proceed, but I do think the defendant breached its duty of care in directing the students to leave its premises and in the manner in which it dealt with the complaint. I am further satisfied that the defendant’s negligent conduct caused loss to the plaintiff.
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.
A former Head of College, Mr Stephen Foley, in a 2014 Head of College Report (Exhibit EE) correctly described the college in this way:
In my assessment, there are definitely pressures brought to bear on our newly arrived residents to conform to a lifestyle that embraces amongst others, drinking beyond moderation, being casually flippant about matters a reasonable person might regard as weighty and important - for example referring to Fellows Oval as “Rape Oval”, or joking about terminologies that have troubling sexual assault overtones. A good example of this is the term “rockspidering” which refers to a practice I haven’t seen evidence exists but is supposed to involve one resident knocking on another resident’s door late at night and if he/she opens the doors, this being interpreted as consent to sexual relations.
Stacy [the Deputy Head] and I have formed the view that there is a dominant culture here that celebrates behaviours and attitudes that ethical, moral and upright people find abhorrent and these behaviours, which are little more than hedonistic, pursued in the name of “fun” by a sizeable and influential minority, some might say majority, within the College community. I regret to say I am of the opinion much of this outlook is driven by our residents coming from a very narrow base and our hosting proportionately fewer international residents.
By the time Mr Foley left the college in 2014 his attempts to cure John’s of these ills had had little success. If subsequent Heads of College continued his efforts, there was no discernible effect. Mr Foley’s comments were equally apt in August 2015 as in March 2014.
The defendant attempted to present the College in a very different light. This included cross-examination of witnesses to suggest that any alcohol consumption and ‘fun’ at John’s were conducted in controlled and monitored circumstances and, on one occasion, the tendering of a photograph taken at an Out the Back Day event said to be consistent with this cross-examination. Ultimately the defendant made no inroads with the witnesses and did not call its own witnesses to establish the foundation for the cross‑examination. The intent of this tendered photograph (Exhibit 19) was comprehensively extinguished by the tender of a series of photographs (Exhibit Y) which painted a more realistic picture of the event.
John’s was supposed to be a haven of Catholic values. Instead its catholic interests made a virtue of the consumption of alcohol. The history of the College and a description of Pope John XXIII (as seen in Exhibit D), bears a distant relationship to the College as it had become by 2014 and 2015.
I will now recount some of the evidence. This is a summary of its more important contents. The detail of the oral evidence is to be found in the transcript.
The plaintiff and her witnesses
On 29 January 2020 Burns J suppressed the name of the plaintiff and any information that might identify her. Accordingly it was necessary to anonymise the names of a number of witnesses. DT is the plaintiff’s mother. JE, ML and NX are friends of the plaintiff and were residents at John’s. NL is ML’s sister. NT is the male student involved in the sexual encounter with the plaintiff.
The plaintiff was the first witness. She was born in Australia in 1995. Her mother is of Mauritian extraction. Her father comes from Germany.
The plaintiff attended Lindfield East Public School and then went on to Killara High School, both in the north of Sydney. She was involved in sport, at both a school and club level. She mostly played basketball and netball. She was a conscientious, successful and well-rounded student, as seen from the school reference on the last page of Exhibit H.
The plaintiff has two sisters, both older than her. The plaintiff’s parents have professional occupations and the family is clearly one which prides itself on its achievements.
The plaintiff completed high school in 2013 and achieved an ATAR of 98.2. This is very high but as mentioned above was not quite high enough to enable her to commence a law degree at UNSW. She reverted to a lower preference and in 2014 commenced at UNSW studying a degree in Advanced Science. Her academic transcript (Exhibit K) shows that in the first semester she did very well, achieving one Distinction and two High Distinctions.
The plaintiff was living at home and felt the need to move out. In addition she still harboured a desire to do a law degree. Accordingly she transferred to the ANU in the second semester of 2014 to commence a combined degree in Commerce and Law.
The policy of the ANU was to guarantee accommodation to first-year students. The plaintiff was offered the choice of university-owned residences or one of two affiliated colleges. These were Burgmann College and John’s. The plaintiff had high school friends at Burgmann so she thought it desirable to join John’s in order to make new friends.
The plaintiff arrived at John’s a week before the beginning of the semester. She was assigned a room in a ‘co-ed’ residence with shared bathrooms. She does not recall if she met the Head of College, but she did meet the Deputy Head, Ms Stacy Curtis.
The Head of College’s office was on the same floor as the John’s Tavern, which mostly served beer and cider, although from time to time mixed drinks were available. There was also wine when there were formal events.
The plaintiff did not recall receiving a handbook or any explanation about her rights and obligations.
The first week of the second semester of each year was referred to as Bush Week. During this period the plaintiff became familiar with pubs in the Civic area of Canberra including Mooseheads. This establishment clearly had an association with John’s which included events such as In the Moose Day. So close was the association with Mooseheads that the Residents’ Association at John’s issued students with a John’s drink card.
The plaintiff attended her first Pub Golf event in August 2014. She was assigned to a group of about five in a particular bedroom where drinking began. This seems to have involved the consumption of a sweet wine concoction known as Passion Pop. It was consumed from a full-sized bottle without the benefit of a glass.
After consuming alcohol on the residence floor, the participants, of whom there seem to have been about 80 or 90, moved to the John’s Tavern and from there to Uni Pub, which is a separate establishment. At some stage the plaintiff was tied, back-to-back, to another first-year student and their hands were taped to a bottle of alcohol. There seems to be little doubt that the intent of the evening centred on the over consumption of alcohol.
The plaintiff does not remember where she went after Uni Pub but it may have been to another establishment called Academy and perhaps then on to Mooseheads. The plaintiff said that she had drunk alcohol on this evening and, I have the impression, participated in the event willingly. She had not been a big drinker before coming to Canberra but had consumed alcohol and did not suggest that the consumption of alcohol was foreign to her.
The plaintiff took up sport at John’s and played touch football on Fellows Oval which was close to John’s. Rugby League was the favoured sport amongst the males at the College and the completion of games, victorious or otherwise, were celebrated in an event called Sports Afters. This event also took place after other sporting games.
Sports Afters, like other events at John’s, concentrated on the consumption of alcohol. Another event that occurred a few weeks into each semester was called Out the Back Day. This took place on the John’s premises, as shown in Exhibit M.
There were also occasional formal dinners which took place after certain events and which were attended by the Head of College and perhaps other members of the board. The students would first gather in the Tavern to drink alcohol and then make their way to the dinner. John’s provided 3 bottles of wine per table. There were 9 or 10 people at each table.
The plaintiff said that all of the events that took place at the College had the drinking of alcohol as their central feature. The students frequently went to Mooseheads, usually on Thursday nights. They would often be intoxicated upon their return to John’s. The plaintiff said that she participated in the consumption of alcohol. There were specific drinks served at Mooseheads known as John’s drinks. They included a ‘Dingo’ drink and a ‘Tusk’ drink which referred to spirits mixed with soda or some other beverage.
The plaintiff’s alcoholic consumption was voluntary but also consistent with Mr Foley’s observation of the pressure to conform with the drinking culture.
The Pub Golf event in 2015 was on 6 August. The Facebook ‘advertisement’ for the event included an itinerary which dictated a starting point at John’s to be followed by Uni Pub, and ending at Mooseheads. The itinerary also stipulated the amount of alcohol to be consumed at each venue. For example it stated that two drinks were to be consumed on each of the six floors of Uni Pub.
The event began in multiple residential college rooms. The plaintiff went to the room she had been allocated with her own large red plastic cup. It had a capacity of about 400ml. The plaintiff may have had an initial drink in her own room but the event started around 8pm. The theme of the evening was cross-dressing so that the plaintiff wore her own jeans but had on a men’s shirt and jacket.
The students were drinking in the rooms and in the hallway. As the evening progressed they became more and more intoxicated and some of them began to throw up, either in the toilets or in bins that had been specifically placed for this reason in the rooms. The bins had been removed from the kitchenettes on each floor. The janitor was in attendance and at around 9pm the students were encouraged to leave John’s. The Incident Report (Exhibit B) confirms the state of John’s at this time.
Before leaving, the plaintiff heard about another student who had apparently injured her head in the course of the festivities. This incident is also referred to in Exhibits A and B.
At Uni Pub, a friend of the plaintiff threw up in the bathroom. Thereafter the plaintiff’s memory is sparse but she does have some recollection of being at Mooseheads and seeing some faces there. These included NT, a fellow resident of John’s. The plaintiff described him as an acquaintance but not a friend.
Mooseheads was the last stop on the itinerary and it was usual for the students to stay until it closed at around 3am. The plaintiff does not however remember leaving this establishment.
The plaintiff woke up the next morning at about 8am. She was no doubt groggy. She found that she was wearing the same clothing as the night before but her jeans were undone and her underwear was pulled down within her jeans.
The plaintiff felt unsettled, confused and at a loss as to how she had arrived home and found herself dressed as she was.
The plaintiff had a close friend, JE, who resided in the room across the hall. On 16 August 2015, a Sunday, JE told the plaintiff that she had travelled to Sydney on the previous Friday (14 August 2015) in a motor vehicle with other persons. One of those persons told her that NT had been telling other people that he had had sex with the plaintiff in an alleyway during the Pub Golf event. The plaintiff, on receipt of this information, felt shocked and scared. The news was difficult to comprehend.
JE asked the plaintiff if she wished her to speak to NT to confirm the rumour. The plaintiff agreed. JE left to speak to NT and returned to say that he had replied “yes” to the question of whether or not he had had sex with the plaintiff. The plaintiff cried a lot. She was very upset. She thinks she may have slept in JE’s room that night for comfort. The plaintiff searched her memory to see if she could recall the event that had been described to her. She could not.
The plaintiff wanted her own confirmation from NT and so on 19 August 2015 she went to his room at about 9pm or 9:30pm. She was uncomfortable and nervous, but also felt anger towards him. She took her mobile phone and JE’s phone with her to record the conversation.
The recording functions were activated before the plaintiff knocked on NT’s door. She asked if she could talk to him and was invited into his room. She relayed to him what JE had told her. She asked him if they had had sex in the alleyway. He replied in the affirmative. He asked her if she remembered anything. She said she did not. She then asked him “Did you come inside me?”. He said “No”. There was some other conversation before she left having told him that she felt very uncomfortable and that he should not come near her.
The recording of the conversation became Exhibit MM. It generally conforms with the plaintiff’s record of what was said. On my listening of the recording, the admission by NT of having “sex in the alleyway” is clear and unequivocal. I think it is reinforced by his later statement “I feel bad though, hey”.
About a week later the plaintiff went to the Sexual Health and Family Planning Clinic. At a later time she consulted the Canberra Rape Crisis Centre.
The plaintiff said that on 29 July 2015 she spoke to the College Residents’ Association’s Women’s Officer, a third-year student called Caitlin Burke. She told Ms Burke what had occurred and what NT had said. Ms Burke offered her support. The plaintiff told Ms Burke that she wanted there to be consequences for NT, including him not returning to the College. Ms Burke said that she would set up a meeting with the Head of College, Mr Johnston and with his deputy, Ms Curtis. The plaintiff had not previously had any contact with Mr Johnston, although she had seen him in his office and at formal dinners.
The plaintiff, together with Ms Burke and JE, met Mr Johnston and Ms Curtis in Mr Johnston’s office on 26 October 2015. The meeting lasted about an hour. Ms Burke had already told Mr Johnston and Ms Curtis about the allegations. The plaintiff was upset at the meeting. She was crying. JE relayed what she had heard in the motor vehicle. The plaintiff added that she had no memory of the event and that she had not consented. She relayed what NT had said to her but did not mention the recording.
Mr Johnston asked what the plaintiff wished the College to do about her complaint. She felt they were listening. Mr Johnston said “What we are dealing with here is rape”. The plaintiff said that she did not wish John’s to renew NT’s residential contract for 2016.
The plaintiff was told that the matter would be looked into and a response provided. The plaintiff did not see any notes being taken during the meeting. When she left the meeting, she felt reassured that some action would be taken.
On 2 November 2015 the plaintiff, without any colleagues, again met Mr Johnston and Ms Curtis in the former’s office. Mr Johnston said he had met with NT. He said that NT had denied the sexual encounter. He also said that “It appears that you two were getting on quite well”. The plaintiff felt upset about Mr Johnston’s comments and angry about the denial. The plaintiff told Mr Johnston that the denial was untrue and told him about the recording she had made. Mr Johnston requested a copy which was provided, on a USB, the following day.
The next meeting with Mr Johnston was on 12 November 2015. The plaintiff had attended his office because she wanted an update on the response to her complaint. Mr Johnston then made a number of comments to the plaintiff which, on their face, were gratuitous, insulting and entirely unnecessary. Of all the comments he made, perhaps the only one that was appropriate was a suggestion of counselling.
The list of comments made by Mr Johnston can be seen in Exhibit Q. This was the last time the plaintiff spoke to Mr Johnston. Following this meeting the plaintiff was distraught. This is not surprising. She felt that she had not been believed and that Mr Johnston was not taking her side and had the attitude that NT had not done anything wrong. Mr Johnston seemed to think that any encounter had been consensual, and that NT had done the plaintiff a favour by walking her home.
The cross-examination about this meeting was appropriately careful. It was distinguished by the following two points:
(a)The only challenge to the content of any of the asserted statements by Mr Johnston was that he said “He walked you home”, and not “He walked you home and put you to bed”; and
(b)The balance of the comments was asserted to have been made in response to questions from the plaintiff or in an appropriate context.
The plaintiff accepted that the comments listed in Exhibit Q are not in chronological order. She also could not recall any questions that prompted any of the comments. Some of the comments are ostensibly favourable to the defendant, for example “My main concern is you; there is help available and counselling”.
There are however a number of comments which do not seem capable of reasonable explanation, barring some extraordinary questioning by the plaintiff. These include the following:
(a)Sometimes when boys are drunk they can be quite arrogant but are often underperformers;
(b)I’m not really sure that anything did actually happen;
(c)I’m not even sure that anything did happen in the alleyway; and
(d)Another concern is how you managed to get that drunk.
In relation to the last of the just quoted comments it was suggested to the plaintiff that her intoxication had been raised by Mr Johnston as a separate subject to which she had responded aggressively, by lecturing Mr Johnston and stating that “a woman has a right to go out and get drunk if she wants to”. The plaintiff denied this had occurred. I accept the evidence of the plaintiff, but would observe that had she made the remarks, they would have been entirely justified.
I also note that when Mr Johnston gave evidence he did not provide the questions or context asserted to have justified the comments.
Following this meeting the plaintiff spoke to ML. She was crying and very upset. She told ML about the meeting. She has tried to avoid thinking about the meeting although has discussed it with counsellors and friends. She also told Ms Burke what had happened.
ML suggested the plaintiff contact Professor Richard Baker, the Pro-Vice Chancellor for Student Experience at the ANU. A meeting was arranged and took place on 17 November 2015. The plaintiff gave Professor Baker the relevant history including the College’s response to her complaint. She cried in his office. He appeared to listen to her concerns and referred her to Associate Professor Paula Newitt, the Dean of Students.
The plaintiff saw Associate Professor Newitt the next day. Ms Newitt seemed genuinely concerned and said that she would investigate. She also booked a counselling session for the plaintiff.
Sometime in November 2015 Ms Curtis offered to move NT to the other end of the College for 2016.
On 2 December 2015 Associate Professor Newitt rang the plaintiff. She said that she had spoken to Mr Johnston and that it was not possible to expel NT without evidence. Because he had retracted his admission there was not sufficient evidence. This generated yet more distress in the plaintiff who felt that she was left without any assistance. She emailed Professor Baker on 15 December 2015 (Exhibit S). The defendant relied upon Associate Professor Newitt’s response as confirming the correctness of the approach taken by the College. The difficulty with this submission is that Associate Professor Newitt was relying upon information from the College which had been dictated by Mr Johnston.
The plaintiff said she tried to minimise her time at John’s although it was necessary to sleep at the College. From time to time she would come across NT in the public areas, perhaps in the dining room or elsewhere. Seeing him made her feel uncomfortable, unsafe and upset.
In October 2015 the plaintiff stood for the position of Treasurer in the John’s Residents’ Association. She was elected and continued in this position in 2016. One of the benefits was that it entitled her to choose her room in the College.
The plaintiff first told her parents about the events on 25 February 2016. She emailed her notes to her mother and asked her to telephone. She had been embarrassed to tell her parents earlier.
Also at the beginning of 2016 the plaintiff met with Associate Professor Newitt in Canberra. She told the plaintiff that she was meeting with NT to suggest that he leave John’s. However on 24 February 2016 the plaintiff found out that NT was still living there. She was exasperated. This was one of the reasons that she told her parents.
This is a convenient point to say something about the role of Community Coordinators and Senior Residents. Exhibit D is the College’s Resident Handbook from 2015. These are some relevant excerpts:
5.6After Hours Duty Officer (SRs)
Senior Residents (SRs) the after hours’ delegates of the Head of College. Every evening and at weekends, one of the SRs becomes the After hours’ Duty Officer. That SR is the College’s first point of contact for all communication, urgent or otherwise.
All Residents and their guests are required to comply with the Duty Officer’s/SR’s instructions…
6.1Residents’ 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 coordinates the roles of, amongst others the Community Coordinators, Senior Residents and the Night Porter, in maintaining good order.
…
9.1Community 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 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…
9.2Senior 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…
It is quite clear that John’s acted through the Community Coordinators and the Senior Residents. One of the arguments put forward by the defendant was that it was unaware that the Pub Golf event in 2015 was to occur. It was pointed out that the persons referred to as Special Guests in Exhibit 10 were actually Senior Residents. Their anonymisation was said to support this argument. It does quite the opposite. The close relationship, though perhaps not a formal agency, between the College and the Senior Residents is, in my view, enough to import knowledge of the event to the College.
Further the Residents’ Association, in accordance with its relationship with the College, actually took out insurance to cover the Pub Golf event (Exhibit HH, page 2). The closeness of the relationship is evident in cl 9.3 of the Resident Handbook:
In consultation with the College Senior Management Team (SMT), the RA organises a diverse calendar of sporting, social and cultural events each year. The SMT and the RA enjoy a collegial relationship and the College makes its common properties like the Tavern, the JCR and the land at the back of the College available for RA-organized events.
In June 2015 Ms Maureen MacGinley, a counsellor at the ANU Counselling Centre, wrote to Mr Johnston supporting an application by the plaintiff to be released from her accommodation contract without penalty. Although the plaintiff later withdrew this request because she did not wish to leave her friendship base, the letter (Exhibit O) contains a useful summary of the plaintiff’s condition:
This incident and its aftermath eroded [the plaintiff’s] psychological and emotional safety and security within the University and especially within John XXIII. This erosion of a sense of security undermines [the plaintiff’s] emotional wellbeing and recovery from the incident. It has affected her socially, emotionally and academically.
In 2016 the plaintiff applied to be an exchange student. Her preferences were, in descending order, King’s College in London, Humboldt University in Berlin and Heriot‑Watt University in Edinburgh. She was offered her third choice and spent the first semester of 2017 in Scotland. When she returned she did not wish to socialise as she had before and lived in a share house in Campbell.
The plaintiff applied for special consideration when taking exams from 2016 until the end of her studies. She had found that she could not concentrate, was anxious and she needed more time to prepare for exams. She was granted special consideration which allowed her specific exam conditions, including extra time and a separate room. She was also given an extension of time to complete assessments. The plaintiff found these to be helpful.
The plaintiff graduated in 2018 with a Bachelor of Science and a Bachelor of Commerce. She achieved a grade point average of 6.154.
The plaintiff had various jobs during her studies. She worked for a time in a bar. There was also some office work, including being an intern at the Australian Institute of Health and Welfare. While working she would sometimes be upset and would cry in the bathroom or on the way to work.
The plaintiff spent some time working at Dixon Advisory. She started as an intern in their Sydney office during the summer of 2017-2018 and was offered a position with the firm starting at the beginning of 2019, which she took. Her starting salary at Dixon Advisory was $60,000 inclusive of superannuation.
The plaintiff stated that she had trouble “picking things up [and]…getting a grip on the job” and did not feel confident in her ability to carry out her job at Dixon Advisory. She ultimately left Dixon Advisory in December 2019. She told her employer she wanted to study for the Graduate Medical School Admissions Test (GAMSAT). However the plaintiff said other reasons for leaving including her unhappiness in the job and her desire to avoid working with certain John’s students that worked there.
Under cross-examination the plaintiff was taken in greater detail through her work history. In particular, to illustrate that she had always been a hard-working person before the incident and then to demonstrate, in the submission of the defendant, that her career choices had not been dictated by the effects of the alleged negligence.
In relation to her work at Dixon Advisory the plaintiff had said that she had found this work boring and repetitive. It did not match her expectations. This was one of the reasons why she had changed her focus to medicine.
The defendant also asked the plaintiff about the travel she had engaged in while overseas in 2017. Most of it seems to have been either with family or a friend, although there were some occasions when she travelled briefly on her own. Again, the clear intent of the cross-examination was to show that the plaintiff had managed well since August 2015 and therefore her injuries were less severe than alleged.
The plaintiff said that she became unwell at the beginning of 2019 following a sailing trip in January. She suffered from bouts of dizziness and an occasional sore throat. She had various tests and was referred to an Ear Nose and Throat specialist, Dr Crawford. At this time she was working at Dixon Advisory. Again the defendant’s position was that the plaintiff’s life had been influenced by matters other than her psychological injury.
The plaintiff said that her dizziness symptoms, which were intermittent, had returned this year.
The plaintiff commenced a relationship in May 2019 which is ongoing.
The plaintiff was cross-examined in detail about her social and sporting activities while at the ANU. Clearly she was very involved in both sports and other physical pursuits such as orienteering. She also spent a lot of time in her role as the Treasurer of the John’s Residents’ Association and she volunteered, impressively, across a wide range of activities.
The plaintiff agreed that when she was working at a bar called Hopscotch she became aware of the obligations of serving alcohol and knew about the dangers of excessive consumption. She said she had successfully completed a Responsible Service of Alcohol course and obtained the necessary certificate.
There is no doubt the plaintiff was a conscientious and devoted member of the University. The purpose of the cross-examination was to show that despite whatever happened at Mooseheads she had nevertheless remained involved and productive while in Canberra.
Thursday nights were a “big night” for the whole university. Students would gather together at various venues. The plaintiff agreed that the Pub Golf event was not sanctioned by John’s. This is a different question as to whether or not the event was condoned by the College. It is also likely that the plaintiff is mistaken. As explained above at [77], I am satisfied the College probably had actual knowledge of the event.
The cross-examination of the plaintiff about 6 August 2015 commenced with her alcohol consumption at John’s. She was drinking vodka with soda or a soft beverage. She thought she had one drink in her room followed by four in another resident’s room before setting off for Uni Pub.
The plaintiff said that her intent on the evening was to drink alcohol but she could not say if it was specifically to become intoxicated.
The plaintiff said that she probably poured more than a standard drink each time she made herself a drink in one of the rooms at John’s. The plaintiff thought that she left John’s between 8.30pm and 10:00pm. She was with “Georgia”, Max Welsh and Susie Warren. They went to Uni Pub by taxi.
The plaintiff was challenged about her Verified Answers to Interrogatories dated 23 April 2019 as to her level of intoxication when she left John’s. For example:
28. Was the plaintiff – to her own estimation – intoxicated when she left the College?
Answer: By the time I left the College, I was not affected by alcohol to the point where my physical and mental control was markedly diminished.
The suggestion being made to the plaintiff was that she was not as intoxicated as she alleged in her evidence in chief when she left the College. The plaintiff had said that she was “drunk by the time I left college” and that she had had about four drinks before departing. Ultimately the plaintiff agreed she was at least “tipsy” by the time she left the College.
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 John’s 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.
The plaintiff then confirmed that she had “hooked up” with NT. This referred to kissing. She also said that she had kissed NT on an occasion prior to the Pub Golf event.
The plaintiff was cross-examined about Exhibit S, the email she wrote to Professor Baker. She said that there had also been a draft email to Professor Baker that was never sent (MFI 7), which she was shown. In the draft she plainly was more critical of Associate Professor Newitt. The fact that the plaintiff chose to delete some of her criticisms of Associate Professor Newitt is, I think, a testament to the care she took in ensuring that the final version of her email was correct.
I will add here that I was particularly impressed with the plaintiff as an honest witness. There were matters she did not recall and there were matters about which she was reminded of under cross-examination. I did not have any impression that these matters had been deliberately hidden by her. I certainly prefer her evidence to that of Mr Johnston in respect of the meeting on 12 November 2015.
The plaintiff’s mother (DT) gave evidence. She is a very well-qualified consultant in health and social care. She described the plaintiff as being a happy young woman before August 2015, but her happiness had dissipated and was now at the level of 3 or 4 out of 10. She said the plaintiff had become frustrated and upset. She was impatient and continually doubted herself. She was obsessed about food and the drinking of alcohol. She often questioned her own ability but also strived to be in control. In addition she seemed to overreact to any minor ailment.
Although the defendant suggested to DT that the plaintiff had done very well since August 2015, at the Residents’ Association, socially and in sport, there was no challenge to the evidence about the detail of the manner in which the plaintiff’s personality and outlook on life had apparently changed.
DT said that her daughter had told her about the events in February 2016. She had complained that John’s and the ANU had not done anything about her complaints. She was distressed.
As a result DT wrote to Mr John Harris, the Chairman of the College board, (Exhibit V) and then met with him on 3 March 2016 at his office in his legal practice. She recalled that at the beginning of their conversation Mr Harris asked her if she had seen the alleyway and if she would like to see it. There was no challenge suggesting these questions had not been asked by Mr Harris. The apparent suggestion from the questions is that the sexual encounter could not have taken place in the alleyway. This suggestion seems to have also been made by Mr Johnston. It is patent nonsense. A sexual encounter between two persons in an alleyway, even if there were other persons in the vicinity, does not require much space.
Exhibit W is a letter written by DT to Mr Harris after their meeting and, to the extent that it is admissible, is a comprehensive explanation of the concerns held about the College’s behaviour. For example:
The substance of our complaint is that Mr Johnston stepped outside of the boundaries of his role and inappropriately undertook an investigation of what is an alleged criminal activity (sexual assault). In doing so he acted in a manner contrary to ANU protocols for dealing with allegations of sexual assault. As a result of his actions, behaviour and comments during this ‘investigation’, he has caused additional undue stress to our daughter and exacerbated her trauma.
…
We were dismayed when, at the commencement of our meeting with you on 3 March, you asked if we had been to the ‘alleyway’ and offered to take us there before setting into the meeting. We were taken back when this offer was repeated during the course of our meeting, as you made comments about the very public nature of the alleyway and the unlikelihood that any romantic activity would have taken place there. We question your role in this investigation and can only surmise from your comments that you also inspected the alleyway to arrive at your conclusions.
It is mystifying why Mr Harris offered to take DT to the alleyway at all. Perhaps it was an attempt to discourage the continuation of the complaint. Unfortunately Mr Harris did not give evidence. He was another witness who I would have expected the defendant to call in pursuit of its case. As with other witnesses I draw an inference that Mr Harris’s evidence would not have assisted the defendant (Jones v Dunkel (1959) 101 CLR 298).
Under cross-examination DT agreed she had wanted to ensure that the plaintiff had “available and appropriate support”. In re-examination she was asked what would have been appropriate. She gave a concise description of an appropriate response: First of all, believe the victim, secondly support the victim and thirdly inform the victim of their available options. Clearly Mr Johnston ignored these basic requirements.
The next witness was NX. She commenced studying law at ANU in 2014. Because she started at the beginning of the year she attended “O Week” in 2014.
NX was a straightforward, direct and impressive witness. She described the alcohol consumption at the College in the most vivid terms. Firstly, during O Week there was a great deal of consumption of alcohol. On the very first night the drinking began in the rooms of the Senior Residents. They even provided the alcohol.
As seen above through the Resident Handbook, it is apparent that the Head of College acted through the Senior Residents and cannot claim a lack of knowledge of the activities described by NX. She said that the new students would be given a bib by a Senior Resident on which a nickname would be written, and the student was required to wear it for the whole week. On her first night NX drank until 9pm when she blacked out and was put to bed by a Senior Resident. The bibs can be seen in the photographs of the revellers (some obviously intoxicated) in Exhibit Y.
NX referred to other drinking events at John’s, including Band Night, Pub Golf, Toga Night and In the Moose Day. There was also Out the Back Day when drinking started in the morning.
The Deputy Head, Ms Curtis, attended some of these events and unquestionably saw the drinking, the vomiting and the mayhem involved, as well as hearing the noise of residents yelling, screaming and playing music. From her room she would have been able to hear the ‘goings on’ after events, and on Thursday nights generally. The location of her room is at the end of one of the residential blocks near the administration building containing the Tavern.
NX said that every Thursday night was a drinking night which would invariably end at Mooseheads. This establishment was associated with John’s. On the lower ground floor there were pictures of the College’s residents. There were also sport shirts which bore the logos of both the College and Mooseheads.
Most of the events seem to have been advertised by posters or on the John’s Facebook page. The Pub Golf event however seems to have been advertised on a Facebook page created by a made up Facebook profile. At the 2014 event “pre” drinks were held at the College. The drinking began in a Senior Resident’s room. There were about eight in the group assigned to the room NX was in. Their hands were tied to drinks and they were tied to other residents.
The event was widespread through the College. There were bins for alcohol and bins for vomiting. People vomited into sinks even though they had been told not to. The same applied to urination. By the end of the evening John’s smelt of alcohol and vomit. There was toilet paper and broken glass spread about. Eventually the students were told by the Night Porter or Community Coordinator to leave the residence. They then went to Uni Pub, followed by Academy and then Mooseheads. All of these events, like Thursday nights, ended up at Mooseheads.
NX didn’t make it to Mooseheads that night. She “keeled over” at Uni Pub and was taken back to John’s by some Senior Residents.
In 2015 NX was elected as the Sports Representative on the Residents’ Association. She was in charge of organising sporting events. John’s was particularly proficient at a number of sports and invariably won a lot of competitions. Sports was one of the reasons NX chose the College as well as the presence of some friends.
As the Sports Representative NX received a financial benefit of $400 from the Residents’ Association. At the end of each sporting season a Sports Afters event was held to celebrate the team’s achievements (win or lose). These events would be organised with the College and usually start in the Tavern. Sports Afters were generally organised on a Thursday night and as with most other events the students ended up at Mooseheads. Large amounts of alcohol were consumed whether an event was organised with the College or not.
The picture painted by NX of alcoholic consumption and misbehaviour within John’s was so vivid that the College management must have been aware of it. It seems to even have approved some of it, as with Sports Afters. To the extent that there was no approval, or even a supposed condemnation or banning of an event, it is clear that the behaviour was condoned by the College.
NX was cross-examined about the details of the various events. She accepted that some had been previously banned and that John’s was required to give approval for other events. She also accepted that some events were run secretly by the Residents’ Association. Nevertheless she said that they had the appearance of being sanctioned by the College. They were, after all, on John’s grounds and included the Senior Residents.
NX accepted that at some events there were Senior Residents assigned to stay sober and patrol the events. While some of them may have not had any alcohol, others did take a drink or two. I repeat that none of these sober residents gave evidence.
NX said that hazing was prohibited. In particular she was asked about a hazing ritual when the first-year students were told to kneel and older students were to poor “goon” (casked wine) into their mouths. In an indication of her honesty, NX said she was ashamed of her participation in the event, although she had not actually poured alcohol down any student’s mouth.
It was put to NX that drinking at John’s was not compulsory; that the students could decide for themselves whether or not to drink. She agreed, but added that she felt she had to if she was going to get on at the College and make friends. This is consistent with my impression that drinking was endemic to the College.
NX became a Senior Resident in 2016. Training took place in a retreat at the beginning of the year. It extended over several days where there were talks which included guidelines about safe levels of alcohol consumption and responding to incidents of sexual assault.
Mr Johnston and Ms Tara Holst, the new Deputy Head after Ms Curtis, attended the retreat. Mr Johnston said, amongst other things:
(a)It was clear to him that there was a need to address the drinking culture at the College;
(b)If a woman was intoxicated she would have some responsibility for a sexual assault; and
(c)If a woman became intoxicated she could not consent to having sex.
There was no challenge to Mr Johnston’s statement about the drinking culture of the College. This was, despite a good deal of unsuccessful cross-examination, presumably intended to show the College was not permeated by excessive alcohol consumption.
If the picture painted by NX was not graphic enough it was both confirmed and made even more vivid by the next witness, ML.
Although she knew the plaintiff before university, it was through a mutual friend and they did not see much of each other. ML started at John’s at the beginning of 2014. She did not have much experience with alcohol before she came to Canberra.
During O Week ML said that the biggest event was In the Moose Day. The first event however was a meet and greet event in the College at which the first-year students were invited to a Senior Resident’s room where they consumed alcohol. Obviously a lot was consumed because ML said she did not remember “anyone being sober”. Consistent with the pattern that had been adopted by the students at John’s, she and others moved on to Mooseheads.
Another event during the first week was Toga Night which took place at a neighbouring college. The students “preloaded” at John’s, in the courtyards of each residence block, before moving on. They did not however leave the College before they were drunk, to the extent that some of them were not permitted entry to Toga Night. ML became drunk and did not remember the end of the evening.
ML was so exhausted by the alcohol consumption through the week that she could not go out on the last two nights. She did not feel well and thought she might have contracted meningitis.
ML said that a Mr Brett Sanders, a retired police officer, spoke to the first-year students at John’s during O Week. His talk had been arranged by the College. He spoke to the males and females separately. ML said that Mr Sanders told the students that if they feared a sexual assault they should tell the male involved that they needed to go to the bathroom. He anticipated the males would not oppose this action because they would have thought that the females were going to enhance their appearance, by “fixing up their makeup”.
Mr Sanders did not suggest saying “No”. This might be seen as aggravating the men, which he advised against.
ML described the In the Moose Day event which seems to occur twice a year. On these occasions the students would preload at the College at around midday, then move on to Mooseheads in a group. They would go to the top floor of Mooseheads which had been especially set aside for the John’s students. Most of them were very drunk when they left the College. They would be loud and badly behaved. When they passed the “doughnut” sculpture on Northbourne Avenue some of them urinated into it while others hid cask wine bladders next to it.
At Mooseheads the students were sold somewhat roughly constituted cocktails at around $4 per drink, obtainable through the discount card which Mooseheads had provided for John’s students. ML was given hers by a Senior Resident.
ML described other events in similar terms to NX. On her description hazing occurred at the Pub Golf events through activities before the students left the College. She described similar acts of bonding (with duct tape) to other students and to drinks. For the 2015 Pub Golf event, ML said that she heard other students saying “Stacey’s around…avoid her”. While this suggests the students were trying to keep the event secret, the sheer scale of it would have made it impossible not to have been noticed by Ms Curtis.
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.
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.
ML said that she became a close friend of the plaintiff. One day the plaintiff told her about the sexual encounter. ML suggested that the College should be told. ML made an appointment to meet with Professor Baker which she did at the end of 2015. She complained to him about the response of the College to the plaintiff’s complaints and her disappointment at the perceived “victim blaming”. Professor Baker said that he too was disappointed.
ML attended a meeting with the plaintiff and Ms Holst in February or March 2016. By this time the plaintiff was very distressed. She was crying and “incredibly upset” about what she had been told by Mr Johnston. She was generally crying and upset when talking about the meetings with Mr Johnston and Ms Curtis.
ML has an older sister called NL. She told NL about the events. NL was aware of Mr Johnston from St Albert’s College in Armidale. She wrote certain matters about Mr Johnston through Facebook messenger to about 140 people. Mr Johnston obviously found out about the message because NL received a letter from a firm of solicitors, Meyer Vandenberg, threatening her with legal action arising from the allegedly defamatory statements in the message.
NL told ML about the solicitor’s letter. This led ML to feel helpless and “silenced”. She did not feel able to continue her emotional support of the plaintiff. She left the College shortly thereafter.
ML gave evidence of a conversation with Ms Ao Li, a Community Coordinator, in which Ms Li told her that she should tell the plaintiff and JE that they should not talk about the alleged sexual assault for fear of legal consequences.
ML produced a series of photographs taken at the 2014 Out the Back Day (Exhibit Y). Photographs must be treated with caution because they can give a false impression. These photographs certainly give an impression and it is one that is entirely consistent with the evidence of ML and NX. The cross-examination of these witnesses to the effect that the event was significantly ‘tamer’ than they had described was comprehensively rendered ineffective by the photographs.
Notable in the photographs is the tent bearing the logo of the College and the word Mooseheads, emphasising the association between the two entities.
As I have said, ML and NX were excellent witnesses. They are intelligent young women who were concerned to tell the truth. Obviously statements such as “everybody was drunk” must be seen in context. But as to their overall description of the amount of alcohol that was consumed on a regular basis through the College, I accept their evidence entirely.
ML was also cross-examined about the option available to the students to not drink or not to go out to venues in the city. She agreed as a general statement but was anxious to emphasise that there was more to the simple issue than might have seemed obvious. She said that there were social repercussions for not going out. She said that the establishment of friends made it important to join in the events. While I of course accept that the students were adults and capable of saying no to drinking or to going out, it must be recognised that peer pressure also had a part to play. This was specifically alluded to by Mr Foley in his annual report (quoted above in [17]).
It was suggested to ML that the Night Porter might have called a closure to events in the Tavern, or loud music in the rooms. He gave them an option to quieten down or leave the premises. ML disagreed. She said that his usual words were “It’s time to go out”. The suggestion is not only contrary to the evidence of Mr Johnston (in relation to 6 August 2015), but also contrary to Exhibit A. The Night Porter was not called to give evidence. I draw an inference that his evidence would not have assisted the defendant’s case.
In relation to the Pub Golf event, ML said that the Jose Gustavo Facebook page had been created by a student called Alex Langlands, together with other members of the Residents’ Association. She said that the event had originally been disguised as a farewell to a particular student but it was well-known that in reality it was an advertisement for the Pub Golf event.
ML was challenged about the precise words said by Mr Sanders during his discourse on sexual assault and the context in which he said those words. She conceded some matters but not others. She could not recollect some of the suggestions put to her. However she was adamant that he had mentioned that a female should tell the male that they were going to the bathroom to “fix our makeup”. Mr Sanders was not called by the defendant to refute ML’s evidence.
ML agreed that she was upset that the College had not expelled NT but she denied that she had bullied him, or was present when JE bullied him, and she had certainly never yelled out “nothing sexier than consent”. There were however posters to this effect about the College.
The next witness was Ms Clodagh O’Doherty. She went to the ANU in 2012 and after about five years completed degrees in Commerce and International Relations. She is now the general manager of a family owned medical clinic.
Ms O’Doherty said that in 2013 she became a Women’s Officer in her college (Burgmann) and the following year she became a Residential Advisor for Mental Health. Part of this role was to provide pastoral care for students who made complaints about sexual assaults. She became a confidante of people who made such complaints. Her training dictated that she should:
(a)Listen to the complainant without judgment and believe them, but do not act as a psychologist or counsellor;
(b)Ask what the complainant required by way of support; and
(c)Offer the appropriate support.
The documents that were provided to Ms O’Doherty at training run by the ANU for these roles became Exhibit AA. They were prepared by the Canberra Rape Crisis Centre and they emphasise the response set out above. Under the heading “How to Respond”, it is stated:
1.Respond sensitively and without judgement of the victim/survivor.
2.Don’t interrupt. Encourage the person to take their time.
3.Normalising the person’s feelings.
4.Give choices.
5.Let the person making their own decisions.
6.Discuss safety.
7.Explain confidentiality.
8.Encourage support - make referrals.
Ms O’Doherty said she had received complaints of sexual assault while she was a Residential Advisor. In accordance with her training she contacted the Principal of her college, Dr Phillip Dutton who, from her point of view, acted in accordance with the training. Dr Dutton was encouraging, supportive and concerned to reach out for counselling.
In 2016 Ms O’Doherty was the Vice President of the ANU Students Association (ANUSA). In this capacity she came to meet the plaintiff and also ML. Initially she did not know ML was a friend of the plaintiff. She regarded her as a Senior Resident at John’s who held the women’s and mental health portfolios for the College.
After receiving a complaint from the plaintiff Ms O’Doherty met with leaders from John’s including the board Chairman, the Head of Risk Auditing and the Chaplain. An ANU staff member who was a John’s board member was also present, as was the President of ANUSA.
The next, and final witness for the plaintiff, was Ms Roxanna Swart. She travelled to the court to give her evidence from Alice Springs. Ms Swart’s evidence consisted of her providing her personal details and then confirming the veracity of a statement, which was then tendered (Exhibit DD). She was not cross-examined. I wondered why she had been put to the trouble of having had to travel, especially during a pandemic, to the ACT.
In addition the absence of cross-examination is indicative of there being no challenge to her evidence. Her statement is consistent with the evidence of the plaintiff and ML as to the effects of the assault and the College’s response upon the plaintiff. Ms Swart says:
19.We were once discussing the assault and John’s response when we were driving near Neutral Bay. I was driving the car, and she had a huge crying breakdown.
20.[The plaintiff] has withdrawn into herself since the assault. She is a lot quieter. She doesn’t reach out to people as much as she used to. She isolates herself.
21.[The plaintiff] was never the loudest person in the room, but she was much more of a ‘go getter’ than she is now.
22.[The plaintiff] is dulled, and is not as confident, vibrant or self-assured as she used to be.
23.[The plaintiff] is not where she could be in her career.
It is notable that some of the comments about the plaintiff are made in the present tense. This emphasises the continuing condition of the plaintiff.
Oral evidence called by the defendant
Mr Johnston was the only witness called by the defendant. This was despite the number of positive assertions being put to the plaintiff and her witnesses under cross‑examination. Most of these related to the consumption of alcohol at the College and in particular, at various events. Suggestions were made of certain people (for example Bronte Morrell, William Calvert-Jones, Angus Moore and Kieran Ahluwalia) having been sober supervisors and monitors. None of these people were called to give evidence. Cross-examination of ML included a suggestion to her that she was exaggerating about the consumption of alcohol. No evidence was called to justify this assertion, which I reject. The Night Porter and the maintenance manager who had participated in the events of 6 August 2015 were not called. I draw an inference that none of these potential witnesses would have assisted the defendant’s case.
Mr Johnston commenced as Head of College in July 2015. He had previously occupied the same position at a sister college, St Albert’s in Armidale. He has a background in education including two masters degrees. Before entering the university sector he was the headmaster at Trinity Senior High School in Wagga Wagga for eight years.
When Mr Johnston started at John’s it was during a term break. He first of all familiarised himself with the staff and the College. His deputy was Ms Stacy Curtis. The Night Porter was Mr Adrian Sandrey and the operations manager was Mr William Wallace. The night Porter’s role included security during the night and support for Senior Residents if there was an incident. His normal hours were 8pm to 2am but he would remain until 5am on Friday mornings because of the usual Thursday night events.
Mr Johnston said that there would always be Senior Residents on duty at night and they could call a Community Coordinator for extra support. He said that the primary role of the Senior Residents was pastoral care. I thought this a very significant answer because clearly the College operated through different levels of supervision which included the Senior Residents. The Senior Residents were appointed by the College, unlike the Residents’ Association which was elected by the students. I have set out the roles of the Senior Residents and the Community Coordinators dictated by the Resident Handbook above in [76].
The Senior Residents received a scholarship in return for carrying out their duties. They were, in effect, the eyes and ears of the College at the student level. They were asked to familiarise themselves with the students on their corridor so they could detect any changes in behaviour which might justify intervention at a higher level. The Senior Residents then act as a first point of call if an issue arose.
Mr Johnston said that overall supervision was carried out by the presence of persons around the College, rather than by direct instruction. He said this was because the students were “young adults”.
The Senior Residents receive training through the ANU, at a retreat at the beginning of the year and also at the College. Mr Brent Sanders was invited to speak to the Senior Residents, as well as students, about consent and sexual assault.
Weekly meetings were held with Ms Curtis and the Senior Residents and chaired by a Community Coordinator. Mr Johnston attended these on occasion if a topic of significance was to be discussed.
Ms Curtis would be approached to get a date for a proposed event. A planning document including a risk assessment was necessary and ultimately the event would, or would not be, approved.
There were about five formal dinners a year, for different purposes such as awards or presentations. Each table of 8 to 10 students was provided with 3 bottles of wine and a bottle each of orange juice and water. The latter two beverages were replenished when necessary.
The Tavern was open from 8:30pm to 10:30pm every night. It was staffed by students who had completed a Responsible Service of Alcohol course. They and the Tavern Manager, usually a third-year student, were paid for their service.
On 6 August 2015 Mr Johnston received a telephone call between 8:30pm and 9pm from Victor (Matthew ‘Victor’ Dunn) who was the Community Coordinator on call. Victor said that there were some unusual events occurring and so the Senior Resident on duty contacted him. There were large numbers of students heading out in groups. Mr Johnston told Victor to get the students out of the residential area, for the benefit of other students who wished to study or retire for the night. This evidence is significant. It corroborates the plaintiff’s case that the students were told to leave the premises and, as noted above, contradicts the assertion that the students were not directed to leave.
Although Mr Johnston said that Victor had not mentioned broken bottles or vomit, the report from Victor must have contained sufficient detail to alarm Mr Johnston to the extent that he gave a direction sending unruly students out into the night.
Over the next few days an investigation was conducted which revealed that the event had been a Pub Golf event. Mr Johnston said he had never heard of this event before.
The investigation identified persons involved and the ruse that had been used to advertise the event. It became apparent that Senior Residents had been involved and, together with members of the Residents’ Association, were referred to as Special Guests on the event page as shown in Exhibit 10. I have already described the close connection between the Senior Residents and the College management.
On 17 August 2015 Mr Johnston spoke to Victor and was informed that there were two complaints of sexual assault. They had been made through Ms Caitlin Burke. At that stage, Ms Burke had been in touch with the Canberra Rape Crisis Centre to get advice.
In October 2015 Mr Johnston was approached by Ms Burke and told about an allegation of sexual assault. Mr Johnston asked Ms Burke to arrange a meeting with the woman involved. A meeting occurred on 26 October 2015 with Mr Johnston, the plaintiff, Ms Curtis, Ms Burke and JE.
The meeting was conducted in an informal setting. Mr Johnston thanked the plaintiff for coming forward, acknowledging that it would not have been easy. The plaintiff told him that she had no memory of the event other than having gone to Uni Pub and later to Mooseheads. Her next memory re-commenced the following morning.
Mr Johnston said he took handwritten notes of the meeting but these were shredded after he had transferred them to his computer (Exhibit 13). Mr Johnston said that in the meeting he was listening out for evidence of the existence of a predator and for an indication that the plaintiff knew what had occurred. JE told him about her involvement in the evening which included seeing the plaintiff and NT walking home and later telling NT not to take advantage of her friend.
Mr Johnston asked the plaintiff if she was well. She said she was although a bit teary. She said she felt safe at the College and did not wish to have any counselling. He asked the plaintiff what she wished to happen. She said that people had started talking and that she wanted this to stop, and for NT to not be able to return to the College the following year.
Mr Johnston met with NT on 28 October 2015. Having heard from the plaintiff he believed that a sexual assault had taken place. NT did not admit the assault. He said that he had been very drunk, that he was not sure how he got into the alleyway. He asserted that the plaintiff had pulled him into a dark corner, that there had been dancing, and that she had tried to induce him into her room back at the College. NT added “I couldn’t do it. She was too drunk and I left”. This suggests that the level of intoxication the defendant attributed to NT was perhaps not as great as suggested.
Mr Johnston said that he told NT that he was his designated support person and asked him if he wished to have counselling. He suggested NT talk to his parents. I regarded this evidence as important. Mr Johnston’s allocation of himself as NT’s designated support person assumed a partisanship role, but was at least consistent with the College’s duty of care to provide a pastoral service. This is very different to the scope of the duty of care suggested by counsel for the defendant, which was that the duty owed extended to no more than that of an occupier.
On 2 November 2015 Mr Johnston attended a meeting with Ms Curtis and the plaintiff. The plaintiff was offered an appointment with ANU counselling which she declined. Mr Johnston told the plaintiff about NT’s response to his inquiries. The plaintiff told Mr Johnston that NT had admitted having sex with her and said there was a recording. Mr Johnston asked for a copy of the recording which was provided the following day. He listened to it a number of times, including with Ms Curtis.
Having listened to the recording, Mr Johnston had another meeting with NT because he believed that the student had lied to him. NT admitted he had told the plaintiff that they had had sex but said that he thought doing so would help the plaintiff. Mr Johnston thought the latter was a somewhat unusual response, with which I agree. NT went on to say that he did not know what had occurred. He added that he “feared something might have happened” and was “revolted” by the possibility.
Mr Johnston asked NT if he had any witnesses to the event. NT’s inquiries did not reveal any witnesses other than one person who said that he had observed the plaintiff and NT “making out” on the dance floor.
Mr Johnston spoke to Mr John Harris, the Chairman of the College board, at one of their regular meetings. Mr Harris is a lawyer. Mr Johnston asked him about the laws regarding consent when the participants in the sexual act are intoxicated. Mr Harris said the situation was not cut and dry. It was complex. They both went to the alleyway next to Mooseheads, although Mr Johnston did not say for what purpose.
Coming now to the important meeting on 12 November 2015. This occurred during an examination period. The plaintiff came to Mr Johnston’s office and asked if she could speak to him. She wanted to know the outcome of his investigation. He was taken a little by surprise because his normal procedure would have been to commit the results of his investigation to writing and provide a formal letter to the interested parties. Nevertheless, he agreed to talk to the plaintiff.
Mr Johnston told the plaintiff that there was not enough evidence to exclude NT from John’s. He said that he tried to explain the process to the plaintiff, but she was not happy. Mr Johnston said that he encouraged the plaintiff to return to the College the following year. Mr Johnston told the plaintiff that NT would not be required to leave the College but he would be under restrictions. The current separation restrictions would continue and Mr Johnston suggested that they might have rooms at either end of the College.
At the end of the meeting he spoke to her about alcohol. He told her that she could not afford to get so drunk because it left her without her memory. She responded with a “lecture” about her right to go into town and get drunk.
Mr Johnston said that he made some notes on his computer after the meeting. He was shown Exhibit Q and said he had no recollection of the matters said opposite the dot points, but he did not deny that he had said them. He did not think, however, that he said NT had put the plaintiff to bed because this did not accord with what he had been told.
During the cross-examination of the plaintiff it was suggested that the various assertions made in Exhibit Q had been made within a particular context or in answer to certain questions. Mr Johnston could not recall the context or the questions, only saying that the conversation had encompassed a number of topics and had occurred in sections.
Mr Johnston agreed with the matters asserted at the top of Exhibit Q, namely that he told the plaintiff that the recording was not enough evidence, that he had consulted lawyers, that he had inspected the alleyway himself and that he had listened to the recording and again met with NT, but had not disclosed the recording to NT.
Mr Johnston’s concessions as to the matters stated in Exhibit Q are important. Not only do they corroborate the plaintiff’s credit but also give substance to the allegations made by the plaintiff about the manner in which she was dealt with in the meeting and the consequences of the decision relayed to her during the meeting.
On 15 November 2015 Ms Burke spoke to Mr Johnston. She was saying farewell but they also discussed his decision.
Mr Johnston said NT complained to him on two separate occasions about being harassed by the plaintiff’s friends. In particular one had allegedly called him a rapist and said “there’s nothing sexier than consent”. Mr Johnston spoke to Ms Ao Li and asked her to talk to JE about the things they were saying.
On 27 November 2015 Mr Johnston met with Associate Professor Newitt, at her request. She told him that the plaintiff had lodged a complaint about the manner in which John’s had dealt with her matter. She asked Mr Johnston about the process that he had followed. He gave her an overview and access to the notes on his computer. She told him that she thought it was a fair process but would nevertheless be required to continue with her own investigation and follow ANU procedures.
In early 2016 Mr Johnston had some dealings with JE’s father who wanted him to change his decision. There were later conversations and correspondence with NT’s parents. He encouraged NT to leave the college. Initially there was agreement but later, apparently as a result of rumours, NT’s parents decided that their son should not leave.
Mr Johnston said he spoke to students at the 2016 retreat as part of the College’s training for Senior Residents. He said that the balance between social and academia was to be changed. The social element was too great. He was going to tighten up on alcohol. These statements are also important in describing the extent of the duty of care that the College had assumed in respect of the students. In addition they are a clear acknowledgement of the defendant’s knowledge of excessive alcohol consumption in the previous year.
Mr Johnston said that when he was at St Albert’s he had dealt with three complaints of sexual assault. He had also expelled a student at John’s in an incident that had arisen from the taking of inappropriate photographs at a formal dinner.
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.
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.
Rather than an intention to change the drinking habits of the College, I had the impression that John’s almost held its reputation as a haven for the excessive consumption of alcohol as an accomplishment rather than a mark of shame.
Mr Johnston was asked about the telephone call from Victor on 6 August 2015 in cross‑examination. It was this call that prompted Mr Johnston to tell Victor that the students should be, in turn, told to leave the premises. Mr Johnston said that, at its highest, the information he received was that “there was a lot of people who had been drinking, and that there was a lot of people going out, but that was as far as it went”.
Mr Johnston was asked what direction he would have given had he been told that the students were drunk, “falling over, vomiting and the like”. It was put to him that he would not have given the direction for them to leave John’s. He replied “if they were excessively drunk, I would have been trying to stop them”.
I do not accept Mr Johnston’s evidence that the information he was given was limited to the extent he asserted. Victor is unlikely to have telephoned unless there was a serious situation at hand. The Night Porter Log (Exhibit A) provides a more likely description of what would have been told to Mr Johnston. It refers to “eggs – spew – rubbish” present in the corridors. This is a much more likely scenario to have justified the call to the Head of College.
Mr Johnston was asked about the comments made by a previous Head of College, Mr Foley. In particular, this already quoted passage from Exhibit EE:
In my assessment, there are definitely pressures brought to bear on our newly arrived residents to conform to a lifestyle that embraces amongst others, drinking beyond moderation, being casually flippant about matters a reasonable person might regard as weighty and important - for example referring to Fellows Oval as “Rape Oval”, or joking about terminologies that have troubling sexual assault overtones.
In Benic v State of New South Wales [2010] NSWSC 1039, Garling J conducted a concise analysis of s 5B of the Civil Liability Act 2002 (NSW) (the NSW equivalent of s 42). In relation to foreseeability his Honour said the following:
90. The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the Civil Liability Act, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (ie. the defendant ought to have known) in the defendant of the risk of harm.
91. The Ipp Report was the source of the provision of the Civil Liability Act under discussion. In para 7.10, the following remarks were made:
“Whereas probability is a scientific concept, foreseeability is a matter of knowledge and inference. For instance, no matter how likely it is that something will occur, it is foreseeable by a person only if that person knows or ought to know that it might occur. (Knowledge must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.”
92. In my opinion, the plaintiff must satisfy the court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense.
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”.
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.
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.
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.
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).
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.
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.
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.
The test for causation imposed by s 45 is a “but for” test. I do not think I need to add anything here besides referring back to my comments made when dealing with the medical evidence. As I pointed out both Dr Smith and Dr Parmegiani, although to differing degrees, attributed the plaintiff’s injuries to the sexual assault and, primarily, to the manner in which the College dealt with the plaintiff’s complaint. It is a straightforward next step to conclude that but for the negligence of the College the harm would not have been suffered.
The final question on liability is whether or not there has been contributory negligence on the part of the plaintiff. The defendant accepted that no contributory negligence would arise from a finding that the complaint had been negligently dealt with. However the defendant submitted that a finding of negligence on either of the first two allegations of the plaintiff would give rise to contributory negligence.
The defendant puts its case on contributory negligence in this way:
That’s the difficulty, your Honour, and you know – as awkward as it is to say out loud, if the law is that if you are intoxicated and you have sex, you cannot consent, then neither of them consented. I thought, your Honour, that the onus is on the plaintiff to establish that her consent was negated because she was intoxicated. And if your Honour makes that finding, then what flows from that, your Honour, is a very high reduction in terms of contributory negligence.
As I understood the defendant’s submission, if the plaintiff and NT had sexual intercourse because they were both intoxicated, then neither of them could have consented and it would follow that the plaintiff’s predicament was significantly brought about by her conscious decision to consume alcohol to such an extent that she rendered herself incapable of giving consent. There are a number of reasons why I reject the defendant’s submission:
(a)This is not a case between the plaintiff and NT in which their relative states of intoxication are to be compared. Further, and in any event, the evidence does not support a conclusion that NT was so intoxicated that he had not acted voluntarily. He had joked about the encounter and, when confronted, he had a memory, as expressed through his recorded admission, that it had occurred.
(b)The negligence that I have found in respect of the direction to leave the College occurred when the plaintiff was already intoxicated. In other words, she took no deliberate steps to place herself in a position of vulnerability because, when the defendant sent her and her fellow students away from John’s, she was already a foreseeably vulnerable person.
Damages
I asked the parties for a schedule of damages showing the figures that they respectively thought appropriate. They clearly have very different views.
Starting with general damages, the plaintiff suggested a figure of “$225,000+”. I assume the figure was expressed in this way to indicate that it was the least the plaintiff should be awarded. The plaintiff’s figure was also expressed to include aggravated damages.
I will deal with aggravated and exemplary damages separately. The defendant suggested $75,000 for general damages, which I think is more realistic, although not quite sufficient.
The plaintiff 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 the plaintiff 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.
The defendant submitted that my assessment of the extent of the plaintiff’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.
Dr Parmegiani said that the plaintiff’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.
The plaintiff 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.
It is also important to recognise that in all probability the plaintiff, but for her injury, would have achieved a better mark at university and also been able to complete a degree in a different field.
I think general damages should be assessed at $90,000. Interest on half of this amount over five years at 2% is $4,500.
The plaintiff claimed $75,000 for past economic loss and $550,000 for future economic loss. The defendant suggested $75,000 as a cushion for all economic loss. Neither party made any reference to lost superannuation benefits. I assume this was because their approach of a global figure included any superannuation or interest component. I will take the same approach.
The plaintiff’s figures used average weekly earnings as a starting point and ultimately suggested that the loss should be essentially based on double these earnings. The loss, at least partially, was also expressed to continue for the balance of the plaintiff’s working life, approximately 40 years.
The defendant said the plaintiff had performed well at university, she had found employment readily and her decision to change to medicine was a choice she made to further her future prospects, and should not be at the cost of the defendant. In addition the defendant pointed out that the plaintiff was a high achieving person whose history showed that she would strive to be successful.
The defendant submitted that the plaintiff’s taking of the GAMSAT for a second time was more an indication of her desire to study medicine in Sydney rather than an indication that she had had difficulty when she first attempted the test.
Dr Smith however thought that the first examination was taken when the plaintiff’s “self‑esteem and self-confidence were markedly low”.
The opposing views are represented in the comments made by the psychiatrists in their meeting on 16 June 2020 (Exhibit E). According to Dr Parmegiani:
[The plaintiff’s] condition had no impact on her employment. I explained the reasons in my report of 7 May 2020, p. 6. [The plaintiff] graduated from university with a Distinction average and she worked for 10 months with Dixon Advisory. She was able to perform allocated tasks until she decided to change careers. She pursued a career in Medicine; this was academically and occupationally more stressful, and possibly less lucrative. [The plaintiff’s] choice of degree suggested she was already ambivalent between working in the financial sector or in a science‑based occupation.
I think there is some substance in Dr Parmegiani’s observation that the change in the plaintiff’s intended career should not be entirely attributed to the defendant’s negligence. I agree that the plaintiff did not seem to have a set view on her occupation both when commencing university and as her time at the ANU progressed.
However, as I have noted above, Dr Parmegiani accepted that his views were subject to change in light of the information that the plaintiff’s Distinction average had been obtained with the assistance of special consideration given by the ANU.
Dr Smith’s view, as expressed in the conclave, was as follows:
In my report of 29 May 2020, I expressed the opinion that the untoward events have in fact affected her employment. I have outlined the facts that she reported a marked lack of confidence when she was employed at Dixons. [The plaintiff] stopped working against that background. [The plaintiff] was hoping to undertake GAMSAT exams. She couldn’t work and study for the exams so she resigned…[She] felt she had been left behind because of ongoing ruminations about events that occurred. Her employment has been affected. She has capacity to do some work, but has relinquished her career to pursue another career in medicine. There is no certainty that she will get into medical school or succeed in medicine. [The plaintiff] did well at university, with a distinction average, but received a lot of assistance, extra time, special consideration, provision of a side room at exams, etc. She coped well with her studies from an academic point of view and worked extremely hard…She can work, but has relinquished her chosen role and career path. I do not know what work she will be able to do.
In my view economic loss should be assessed somewhere between the different submissions made by the parties. I agree with the defendant that a “cushion” is the correct approach. However the defendant’s figure does not take account of the continuing difficulties the plaintiff will have and which have affected her in her employment so far.
It is difficult to know what the plaintiff would have earned but for the defendant’s negligence. It is equally difficult to predict the future, including the plaintiff’s likely success in medicine and the level of earnings that she will attract.
An approach that I think is fair to both parties is to proceed on the basis that the plaintiff’s future career, whatever it may be, has been delayed by, say, five years, but after which she will either be able to earn an income that she might have otherwise achieved, if not more. This conclusion is, to some degree, a recognition of the defendant’s point that the plaintiff is an impressive person who will no doubt do her very best to achieve success in the future.
As to the five years of delay, the plaintiff would no doubt have commenced on a lower wage and worked herself up to a more significant income. Bearing in mind I am looking at her capacity to earn, I think an appropriate calculation is to award her average weekly earnings for one year in the past and then four years into the future, appropriately discounted.
The plaintiff is likely to have worked in NSW so I think that state should be the appropriate source of the figure for average weekly earnings. Gross average weekly earnings in NSW as at May 2019 were $1,728.80. On my calculation this figure equates to a net amount of $1,311.52.
I think average weekly earnings should be the basis for the calculation of economic loss. Although the plaintiff may well have been earning a greater amount by now, she would have reached the figure gradually. In addition I need to take into account that she may well have earnings in the next four years, perhaps from part-time income or even full‑time income if she does not proceed with the medical degree.
Accordingly I will assess past economic loss at $68,199.04.
On the 3% tables, 4 years at $1,311.52 per week, less 15% for vicissitudes, is $219,502.53.
The plaintiff’s claim for future medical expenses is $10,000. The defendant suggested $5,000. Based on Exhibit E, I think both Dr Parmegiani and Dr Smith thought the plaintiff would benefit from 12 sessions with a specialist psychiatrist. Dr Smith also thought that 20 sessions with a psychologist would be required. I am not sure of the current rates for treatment but I think if I split the difference between the parties’ respective submissions I would be achieving a fair result.
The plaintiff has claimed aggravated and exemplary damages which she suggests should be in the sum of $50,000. These damages are available under the Civil Law (Wrongs) Act. The bar in s 139H is only applicable to proceedings in defamation.
Exemplary damages are intended to punish a defendant (Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118). They are rarely awarded. They recognise and punish fault, but not every finding of fault warrants their award (Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1). Exemplary damages are awarded when there has been “conscious wrong-doing in contumelious disregard of another’s rights” (Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77).
Generally speaking, aggravated damages will have the same basis as exemplary damages but require the additional factor that the conduct would have increased the plaintiff’s suffering.
In New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at [31], the High Court said that:
Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing.
The Court then went on to quote with approval the judgment of Spigelman CJ in the NSW Court of Appeal about the distinction between aggravated and exemplary damages. The High Court, at [35], added this:
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.
I think aggravated and exemplary damages should be awarded here. The defendant’s assumption of a dual, if not more than dual, role in dealing with the plaintiff’s complaint was I think a contumelious disregard of her entitlement to fair treatment. My view is enforced by my conclusion that the defendant’s approach was influenced by its desire to protect the reputation of the College at the expense of the plaintiff’s welfare. In doing so the defendant’s conduct also accentuated the suffering of the plaintiff.
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.
A summary of the damages I have allowed 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
$68,199.04
Future economic loss
$219,502.53
Exemplary and aggravated damages
$30,000.00
Total
$420,201.57
I make the following orders:
(i)Verdict and judgment for the plaintiff in the sum of $420,201.57.
(ii)The defendant is to pay the plaintiff’s costs of the proceedings.
(iii)Liberty to both parties to apply in respect of any alternate costs order.
| I certify that the preceding three hundred and twenty‑two [322] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 7 August 2020 |
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