Duty of Care, How Far Can It Extend?

Duty of Care, How Far Can It Extend

Trigger Warning: This blog contains details about Sexual Assault, which may be upsetting for some. Reader discretion is advised.

Co-written by: Brianna Ellul (Paralegal)

A former student of a Canberra College has been awarded $420,000 in damages due to the College breaching their duty of care owed to the student. The plaintiff was living at John XXIII College, a student accommodation that was under the control of the Australian National University.

SMA v John XXIII College (No 2) [2020] ACTSSC 211 (7 August 2020)

Background Facts:

The Plaintiff participated in a bar-hopping event, which involved the students commencing at an on-campus bar before moving to an alternate location, which was not affiliated with the College.

The students moved to this alternate location due to the College officials directing the group of ‘overly intoxicated’ pupils to leave the campus, which the Plaintiff alleges is a breach of their duty of care.

Although this was a civil case, the court heard the alleged rape of the Plaintiff in relation to the duty of care breach. Although the Plaintiff does not recall the events of that night due to intoxication, she woke to see her jeans and underwear pulled down. Furthermore, she recorded an admission from the alleged offender, stating that the conduct had indeed occurred and that he ‘felt bad’.

The Plaintiff met with the head of college and the deputy head of college on three occasions. In the initial meeting, the Plaintiff requested that the college not renew the alleged offender’s residential contract.

After passing the recording onto the head of college, Mr. Johnston, the Plaintiff was told by Mr. Johnston that he was not sure anything had in fact happened, despite the Plaintiff’s recording of the offender admitting to it. Other comments from Mr. Johnstone included “sometimes when boys are drunk, they can be quite arrogant but are often underperformers” and “I’m not even sure anything did happen in the alleyway”.

Decision

Justice Elkaim asserted that these above statements from the college were a departure from the pastoral duty of care that Mr. Johnson had. Furthermore, Justice Elkaim referred to the Badge of Honour concept that the college has, which is used to entice students to attend such Colleges.

The Court decided to award damages to the Plaintiff as the College owed her a duty of care and was in direct contravention of this when they directed the group to leave the campus knowing they were intoxicated. It is important to note that the Court held that the College did not owe a duty to hinder the Pub Crawl from continuing, which the Plaintiff tried to argue.

What does this mean for future?

Colleges and student accommodation associated with Universities and places of study may be liable for injuries sustained off-premises if it has been found that they owed a pastoral duty of care to the person who incurred the injury.


ABOUT KARENA NICHOLLS:

Karena Nicholls

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.


For further information please don’t hesitate to contact:

Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887

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