The SMA v John XXIII College Legal Case Analysis

The trial for the case of SMA v John XXIII College (No 2) [2020] ACTSC 211 took place in Mount-Clermont, Australia. It was revealed by the Supreme Court of the ACT (ACTSC) that, due to the university college breaching its duty of care, a female student was sexually assaulted near the authorised venue. The student stated that she was assaulted after the college event called ‘Pub Golf’. It was said that ‘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’¹.

In the plaint, the John XXIII College was accused of being negligent towards students who left the College in a state of drunkenness, and towards the complaints the student made after the assault. Among said students were the plaintiff – SMA, and her fellow student who sexually assaulted her. The issue lies in the question whether the institution should be held responsible and liable for the intentional actions of its subjects against adults in a vulnerable state.

Thus, the offended party’s accused the College of negligence in three aspects. First and foremost, the litigant should not have permitted an official drinking event to have happened. Another complaint stated that the College should not have directed the students to leave its territory during the drinking event. Caltex Refineries (Qld) Pty Ltd v Stavar & Ors [2009] NSWCA 258 case implied that the duty of care owed by the defendant to the plaintiff extended to the direction given to leave the premises². Finally, the College did not properly handle the complaint about the assault from SMA.

A breach of duty of care can be proclaimed here, as the College obviously neglected to satisfy their obligation of care to its students. However, the official court decision from the Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 case was used to argue that its duty of care did not extend to the criminal conduct of a third party³. In open responsibility law, an individual may try and sue another person or an institution for harm that was caused by a violation of the duty of care they owed to the individual. This is precisely what happened in the case of SMA v John XXIII College.

The Court, however, stated that the College was not to be accused of duty violation because of its permission to hold the event. Still, the institution violated its duty of care by allowing the students to leave its territory during it, which put them in jeopardy. Moreover, the College, indeed, was liable for improper handling of the student’s complaint about sexual assault. The institution argued that there was no breach in duty of care towards SMA as an inebriated person, as well as it could not be held responsible for assailant’s actions, but to no avail. Elkaim J explicitly stated that ‘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’⁴.

The ACT Supreme Court’s final decision was to award the plaintiff $420 000 of damages against the College for psychological injury, which, after reviewing the evidence, can be safely considered as fair. It is now clear that ‘those charged with a duty of care to young adults are put on notice that they will be held to account for allowing an inappropriate culture in their institutions’. This care proved to have a lot of impact on the educational sector laws of Australia.

Duty of Care and Breach of Duty

The student of the John XXIII College, which is a part with the Australian National University, accused the institution of negligence resulting in psychological harm. As it was stated in the court, she had non-consensual sex with another student of the institution which happened immediately after ‘Pub Golf’. This event was a drinking binge that started at the College, and in the wake of being directed to leave Johns, finished at an authorized venue. It can be safely said that ‘universities, colleges and schools should consider whether they are condoning certain events and, for example, a culture of excessive drinking’⁵.

SMA claims that during the event, she was inebriated so much that she did not have any memory of the sexual intercourse. As SMA ten days later heard that the other understudy had been speaking in a derisive manner about the event, and submitted a complaint, that, from court’s perspective, had not been sufficiently dealt with. She endured a mental injury which greatly damaged affected her psychological state. Additionally, she claimed to also experience financial losses caused by the events.

Some features of unfair or negligent behavior of a legal institution are reflected not only in the acts of legal explanatory and law enforcement activities, but also directly in specific legislations. Under the conventional standards of legitimate obligation in negligence cases, an offended party should demonstrate that the respondent’s activities were the genuine reason for the offended party’s physical issue. This reasoning implies that, if it was not for the litigant’s actions or inactions, the offended party would not have experienced harm. During the trial, the College proclaimed they were not informed that the ‘Pub Golf’ event was to happen.

However, Elkaim J concluded 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’⁶. Additionally, one of the students stated that a few occasions of the event were banned by the institution, or the event organizers had to specifically ask for permission or even run the event undercover.

All things considered, the Court held that the occasions had all the earmarks of being endorsed by the institution. Although it condoned occasions like ‘Pub Golf’, the College cultivated the excessive consumption of liquor as an ordinary piece of college life. Thus, it was clear that the College administration has more likely than not known about the event, and the board likewise appeared to have endorsed some of it. Evidence pointed to the fact that there was no real ban of the event, thus, it could be concluded that the conduct was approved by the College. Likewise, it was important to note held that the event happened on the College’s grounds.

Senior residents, who had been selected by the Head of College to aid the College, took part in organizing the whole event and provided the necessary information for the administration. As Screnci and MacMahon state, ‘the Court was not persuaded that the Head of College was unaware of the level of intoxication of students at the College’⁷. Even more, the Association also was proven to help covering the event.

During the trial, the College conceded that it, indeed, had a duty of care to SMA; however, the institution argued on the degree of this duty, regardless of whether it had been violated. According to the Section 43 of Civil Law Act 2002, ‘a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable’⁸. Indeed, the institution could not predict the sexual assault of a student as a reliable outcome of allowing the drinking event. All the more explicitly, the College contended that its duty of care ‘was no more than that of an occupier’, as set out in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479⁹. However, John XXIII College v Commissioner for ACT Revenue (Administrative Review) [2016] ACAT 152 stated that the College’s constitution claimed ‘to provide for the students of the ANU the facilities and encouragement to obtain pastoral support’¹⁰.

One of the criteria for the application of tort liability is guilt. Just like criminal law, tort law requires the mandatory existence of the wrongful act of the tortfeasor as a basis for initiating a tort compensation claim. Eventually in the process of the trial, the Court concluded that there was to duty of care violation in the institution’s permission to hold the event. In fact, ‘it rejected the argument SMA was contributorily negligent, concluding that the direction to leave John’s had occurred when SMA was already intoxicated’¹¹.

As the Court explained, any intervention with SMA’s right to consume alcohol would be a violation of her free will and decision to drink. The CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No. 14 Pty Ltd v Scott [2009] HCA 47 case was used to argue that such duty of care was inconsistent with her autonomy¹².

As for the assessment of the actions of the College in terms of rationality, the Court decided that the duty of care was breached due to the Head of College’s failure in upholding their responsibilitties. The integrity of the person invested with executive functions in any institution is a direct reason for the trust that the institution’s authorities have in them. Section 5B of Civil Liability Act 2002 explains that ‘a person is not negligent unless in the circumstances, a reasonable person in the person’s position would have taken those precautions’¹³. The College was content with to providing a pastoral service to students, which, in fact, overcomes greatly the boundaries of the duty of an occupier.

Harm, Factual Causation, and Scope of Liability

Actions of negligence that have caused harm to the person, on themselves, will not lead to the satisfaction of the plaintiff’s claims against the defendant. That is unless it is proved that the person or organization who caused the harm with their actions or inactions has violated their legal obligation. Waters v Winter and The University of New England [1998] NSWCA 248 case supports the claim that the College had a ‘duty of care towards the students to protect them from a risk of injury of which it was aware or ought to be aware’¹⁴. Tort law specifies that the defendant has financial obligations to the plaintiff only if certain requirements for liability are met. In other words, an obligation to provide compensation can only arise if the damage truly has a legal basis.

Since tort law focuses on the damage to the plaintiff, then for it, to a much lesser extent than for criminal law, the reasons for the actions of the tortfeasor matter. Innocent or even a relatively innocent act may give rise to tort liability – such as in this case, where the inactions of the College led to a sexual assault of SMA. The College had to prove that it has exhausted all the available potential for harm mitigation, as the question about the amount of harm that could be reduced arose. In turn, as the Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 case states, ‘plaintiff must establish actual or else constructive knowledge in the defendant of the risk of harm’¹⁵.

However, tort law – with the exception of strict liability – relies on the standards of error developed by the courts, and presumes the punishability of an act that has caused harm to another person. Unlike criminal liability, which is initiated by individuals in cases of public prosecution, a tort claim is aimed at protecting civil rights and redressing harm, rather than imposing punishment on the offender.

Respectfully, a tort claim presumes, in general, not a penalty but a compensatory orientation – which is precisely what was expected in the reviewed case. Such a situation usually requires pecuniary compensation from the defendant in monetary terms for the violations of the legitimate duty of care to the plaintiff. The Court also had to evaluate whether the College’s ability and obligation to provide explanations regarding their actions were conditioned by the evidence of mental and financial originally presented by the plaintiff.

Defence (Concurrent Negligence) and Compensation

The problem of determining the amount of liability for mental damage has not yet been resolved. Nowadays, it remains primarily a reflection of legal policy, since such losses are largely arbitrary and inevitably lack a certain “standard” for their evaluation due to their subjective nature. Section 45 of Civil Law Act 2002 claims that ‘a decision that negligence caused particular harm depends on the scope of the negligent person’s liability to extend to the harm so caused’¹⁶.

For mental health injuries, this variable is still quite hard to determine. Additionally, Section 46 of the same Act states that ‘in deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation’¹⁷. It is also necessary to outline clear and stringent criteria under which the burden of proof may be transferred to the litigant. Courts give over the priority to the application of clearly defined legal prescriptions, as well as to limit application of blanket rules which give the court the opportunity to act at its sole discretion.

If harm to physical health is not difficult to identify, then the establishment of the fact of harm to mental health is usually associated with significant difficulties. Section 35 of Civil Law Act 2002 claims that ‘damages must not be awarded for economic loss for consequential mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness’¹⁸. This is due to the fact that it requires the use of special medical standards of examination and appropriate expertise. Moreover, Elkaim J stated that there was ‘a number of comments which do not seem capable of reasonable explanation, barring some extraordinary questioning by the plaintiff’¹⁹.

In the event of mental injury, such as the case reviewed, an important element of the composition of pecuniary damage it the cost of treatment and rehabilitation measures. Section 34 of Civil Law Act 2002 states that ‘in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose’²⁰. The Supreme Court of ACT had to estimate how much should it take to eliminate the physical consequences of the damage as much as possible. If nonprofit boards yet not understand ‘the importance of the culture of their organisation, particularly in relation to their responsibilities for caring for their beneficiaries, then this case graphically conveys the message in capital letters’²¹.

SMA had the right to claim reimbursement of all listed costs, thus, she was awarded more than $400 thousands of damage pay. ‘The decision of the Court to award SMA financial reimbursement also highlights the importance of counselling following disclosures of abuse’, state Screnci and MacMahon (November, 2020)²². Seeing as the institution did not act in a sensible way to forestall damage to SMA and other students, which could be predicted, the duty of care is violated. Thus, SMA, as a person who has suffered psychological damage as a result of the College’s failure to protect her safety decided seek retribution in a civil violation case.

Reference List

Australian Capital Territory Current Acts, Civil Law (Wrongs) Act 2002 – Sect 34 Mental Harm—Duty of Care (2002) Australasian Legal Information Institute. Web.

Australian Capital Territory Current Acts, Civil Law (Wrongs) Act 2002 – Sect 35 Mental Harm—Damages. Australasian Legal Information Institute. Web.

Australian Capital Territory Current Acts, Civil Law (Wrongs) Act 2002 – Sect 43 Precautions against Risk—General Principles. (2002) Australasian Legal Information Institute. Web.

Australian Capital Territory Current Acts, Civil Law (Wrongs) Act 2002 – Sect 45 General Principles (2002) Australasian Legal Information Institute. Web.

Australian Capital Territory Current Acts, Civil Law (Wrongs) Act 2002 – Sect 46 Burden of Proof (2002) Australasian Legal Information Institute. Web.

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (1987) [1987] Australasian Legal Information Institute.

CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 [2010] Australasian Legal Information Institute.

Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 [2009] Australasian Legal Information Institute.

John XXIII College v Commissioner for ACT Revenue (Administrative Review) [2016] ACAT 152 [2016] Australasian Legal Information Institute.

McGregor-Lowndes, Myles and Hannah Frances, “ACPNS Quarterly Case Notes Summary – Third Quarter 2020” [2020] ACPNS Legal Case Notes Series.

McGregor-Lowndes, Myles and Hannah Frances, “Ten Cases That Shaped Charity And Nonprofit Law In 2020 And Ten Trends To Consider” [2021] ACPNS Legal Case Notes Series.

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164 [2000] Australasian Legal Information Institute.

New South Wales Consolidated Acts, Civil Liability Act 2002 – Sect 5B General Principles (2002) Australasian Legal Information Institute. Web.

Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [2010] Australasian Legal Information Institute.

Screnci, Stephanie and Michelle MacMahon, Implications of University’s Breach of Duty Regarding Sexual Assault (2020) Lexology. Web.

SMA v John XXIII College (No 2) [2020] ACTSC 211 [2020] Australasian Legal Information Institute.

Waters v Winter and The University of New England; Winter v Waters and The University of New England Matter Nos Ca 40105/96; Ca 40099/96 [1998] NSWSC 248 [1998] Australasian Legal Information Institute.

Footnotes

1. SMA v John XXIII College (No 2) [2020] ACTSC 211.
2. Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258.
3. Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164.
4. SMA v John XXIII College (No 2) [2020] ACTSC 211.
5. Screnci & MacMahon, Implications of university’s breach of duty regarding sexual assault 2020.
6. SMA v John XXIII College (No 2) [2020] ACTSC 211.
7. Screnci & MacMahon, Implications of university’s breach of duty regarding sexual assault 2020.
8. Civil Law (Wrongs) Act 2002 – Sect 43 Precautions against risk—general principles.
9. Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (1987).
10. John XXIII College v Commissioner for ACT Revenue (Administrative Review) [2016] ACAT 152.
11. Screnci & MacMahon, Implications of university’s breach of duty regarding sexual assault 2020.
12. C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47.
13. Civil Liability Act 2002 – Sect 5B General principles.
14. Waters v Winter and The University of New England; Winter v Waters and The University of New England Matter Nos Ca 40105/96; Ca 40099/96 [1998] NSWSC 248.
15. Peter Steven Benic v State of New South Wales [2010] NSWSC 1039.
16. Civil Law (Wrongs) Act 2002 – Sect 45 General principles.
17. Civil Law (Wrongs) Act 2002 – Sect 46 Burden of proof.
18. Civil Law (Wrongs) Act 2002 – Sect 35 Mental harm—damages.
19. SMA v John XXIII College (No 2) [2020] ACTSC 211.
20. Civil Law (Wrongs) Act 2002 – Sect 34 Mental harm—duty of care.
21. McGregor-Lowndes & Frances, Ten Cases That Shaped Charity And Nonprofit Law In 2020 And Ten Trends To Consider 2021.
22. Screnci & MacMahon, Implications of university’s breach of duty regarding sexual assault 2020.