30 June 2022

Payout for ANU John XXIII College rape survivor slashed on appeal

| Albert McKnight
John XXIII College

John XXIII College has had a partial win in the ACT Court of Appeal. Photo: ANU.

CONTENT WARNING: This article discusses sexual assault.

The Australian National University’s John XXIII College has partially won its appeal against a former student and rape survivor, with the damages it was originally ordered to pay cut by about $150,000.

On Wednesday (29 June), Acting Justice Verity McWilliam said she and the other two ACT Court of Appeal justices had set aside the original decision to award $420,000 to the woman and instead ordered the amount to be $267,500.

The original Supreme Court decision in 2020 said the woman had taken up residence in a college, which was operated by the ANU-affiliated John XXIII, before going to a “pub golf” event there in August 2015. This was a drinking game that began at the college and ended at the Civic pub Mooseheads.

The woman was raped in an alley near the pub. She didn’t know it had happened until 10 days later, when she was told the person who sexually assaulted her had been joking about it, because she was so intoxicated at the time.

The original decision by Justice Michael Elkaim said the college was not responsible for allowing the “pub golf” event to take place, but it had breached its duty of care by directing students to leave its premises, as well as the way in which it dealt with the woman.

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He said after the woman reported the incident, John XXIII Head of College Geoff Johnston made comments to her that were “gratuitous, insulting and entirely unnecessary”.

Mr Johnston had made comments like, “sometimes when boys are drunk they can be quite arrogant but are often underperformers” and “another concern is how you managed to get that drunk”.

Justice Elkaim said he was left with the impression that the college “guarded its reputation as a hard-drinking, good living establishment as a badge of honour” and he awarded the woman about $420,000 in compensation for damages as well as past and future economic loss, medical expenses and interest.

Wednesday’s judgement by the Court of Appeal’s former Chief Justice Helen Murrell, Justice Chrissa Loukas-Karlsson and Acting Justice McWilliam said the college had raised 15 grounds of appeal.

For instance, it challenged Justice Elkaim’s findings that the woman was intoxicated when she left the college and it had breached its duty of care to her by directing students to leave the premises.

It also argued he erred when awarding the woman almost $290,000 for past and future economic loss.

Meanwhile, the woman had filed a cross-appeal, arguing she should have been awarded general damages worth $225,000 instead of $90,000.

The appeal court found in regards to Justice Elkaim’s decision that the college had breached its duty of care by directing students to leave its premises, an error relating to causation was established.

They said the evidence did not show “that a different course would have been taken by the students… had the direction to leave the college not been given”.

The appeal justices also found Justice Elkaim erred in his assessment for damages for past and future economic loss and they dismissed the cross-appeal.

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However, they upheld the finding that the college breached its duty of care when the handling the woman’s complaint, and “that was the more significant cause of the plaintiff’s psychiatric injuries and disability”.

The appeal court also stood by some of Justice Elkaim’s factual findings, such as that the woman was intoxicated when she left the college, the college knew about the “pub golf” and how Mr Johnston “likely… adopted a stance” to protect the college’s reputation.

Shine Lawyers acted for the woman and Shine’s head of abuse law, Leanne McDonald, said the court’s decision to dismiss part of the college’s appeal put universities around the country on notice.

“Our client’s bravery has been nothing short of inspirational throughout this process,” Ms McDonald said.

“This is a win for her, first and foremost, but we hope this decision gives the countless other survivors of sexual violence in our universities the courage to come forward and find their justice.

“This case highlights the dangers of drinking culture on our tertiary campuses, and is a warning to administrators to take complaints of sexual violence seriously.”

The appeal court did note that while Justice Elkaim found the sexual interaction in the alley lacked the woman’s consent due to her intoxication, he had emphasised this was a civil finding limited to the balance of probabilities.

If this story has raised any concerns for you, 1800RESPECT, the national 24-hour sexual assault, family and domestic violence counselling line, can be contacted on 1800 737 732. Help and support are available through the Canberra Rape Crisis Centre on 6247 2525, the Domestic Violence Crisis Service ACT on 6280 0900 and Lifeline on 13 11 14. In an emergency, call 000.

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