John XXIII College v SMA [2022] ACTCA 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: John XXIII College v SMA

Citation: [2022] ACTCA 32

Hearing Dates: 1 and 5 November 2021

Decision Date: 29 June 2022

Before: Murrell CJ, Loukas-Karlsson J and McWilliam AJ

Decision: 1) The appeal is allowed in part.

Order 1 of the orders made by Elkaim J on 7 August 2020 is set aside and in lieu thereof, the following order is made:

(1) Judgment is entered for the plaintiff in the sum of $267,500.

Order (b)(i) of the orders made on 4 September 2020 is set aside and in lieu thereof, the following order is made:

(i) The defendant is to pay the plaintiff’s costs of the proceedings.

The respondent is to pay the appellant’s costs of the appeal.
The cross-appeal is dismissed with each party to pay their own costs.
Liberty is granted to the parties to apply to vary any of the above costs orders within 14 days.

Catchwords: APPEAL – NEGLIGENCE – DUTY OF CARE – BREACH – CAUSATION – where students at a residential college at university commenced drinking alcohol on college premises and were directed to leave – where appellant later sexually assaulted outside a nightclub – whether error in finding that a residential college at the Australian National University owed a duty of care to a student that extended to directions it gave to students and the manner in which it handled complaints – whether error in factual findings made by primary judge – whether breaches established on the evidence before the primary judge – whether breaches caused student’s psychiatric injury APPEAL – CONTRIBUTORY NEGLIGENCE – where student intoxicated when harm occurred – whether error in failing to apply the presumption of contributory negligence in s 95 of the Civil Law (Wrongs) Act 2002 (ACT) – whether damages should be reduced by reason of the student’s contributory negligence APPEAL – EVIDENCE – ADMISSIONS – whether error in admitting evidence of an admission in a conversation and a recording of same pursuant to s 64 of the Evidence Act 2011 (ACT) and s 4 of the Listening Devices Act 1992 (ACT) – whether use of the evidence should have been limited pursuant to s 136 of the Evidence Act 2011 (ACT) APPEAL – DAMAGES – whether error in awarding damages for economic loss – whether error in awarding aggravated and exemplary damages CROSS-APPEAL – DAMAGES – whether amount awarded for general damages was grossly inadequate CROSS-APPEAL – COSTS – where offer of compromise made on penultimate day of hearing to pay injured student a sum more than the sum ultimately obtained following a contested trial – where primary judge ordered solicitor and client costs but limited such order to the period commencing on the first day of the hearing – whether error in failing to properly apply r 1010 of the Court Procedures Rules 2006 (ACT) Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) ss 34, 35, 42, 43, 45, 95, 99, 102 Civil Liability Act 2002 (NSW) ss 16, 17 Court Procedures Rules 2006 (ACT) r 1010 Evidence Act 2011 (ACT) ss 59, 64, 81, 83, 136, 138 Listening Devices Act 1992 (ACT) s 4 Supreme Court Act 1933 (ACT) s 37E Wrongs Act 1958 (Vic) ss 28LE, 28LF, 28LG Cases Cited: AB v Australian Capital Territory [2018] ACTSC 16 Agar v Hyde [2000] HCA 41; 201 CLR 552 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; 146 FCR 292 “B” v Reineker [2015] NSWSC 949 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board & Scott (2009) 239 CLR 390 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 Dong v Song [2019] ACTSC 82 Erlich v Leifer [2015] VSC 499 FFF v BBB [2017] VSCA 156 Fox v Percy [2003] HCA 22; 214 CLR 118 Gann v Hosny [2017] VSCA 303 Graham Barclay Oysters v Ryan [2002] HCA 54; 211 CLR 540 Hamilton v Whitehead (1988) 166 CLR 121 Hand v Morris [2017] VSC 437 HL v HP [2019] ACTSC 299 Hosny v Victoria Racing Club & Anor [2012] VCC 661 House v The King (1936) 55 CLR 499 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 Khan v Polyzois [2006] NSWCA 59 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 565 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 Lee v Lee; HSU v RACQ Insurance; Lee v RACQ Insurance Limited [2019] HCA 28; 266 CLR 129 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 MC v Morris [2019] NSWSC 1326 Ms P v Mr D [2020] NSWSC 224 Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 Oliver v Roberts [2018] ACTCA 35 Perez v Reynolds [2020] VSC 537 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 Reardon v Seselja [2021] ACTCA 4 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 Scuderi v Raskurasingham [2017] ACTSC 41 SMA v John XXIII College (No 2) [2020] ACTSC 211 SMA v John XXIII College (No 3) [2020] ACTSC 236 SMA v John XXIII College [2020] ACTSC 198 Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 Sullivan v Moody [2001] HCA 59; 207 CLR 562 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 Waks v Cyprys & Ors [2020] VSC 44 Ward v Allies and Morrison Architects [2012] EWCA Civ 1287 CA Warren v Coombes [1979] HCA 9; 142 CLR 531 Waters v Winter and the University of New England [1998] NSWCA 254

Parties: John XXIII College (ACN 085 301 640) (Appellant/Cross- Respondent) SMA (Respondent/Cross-Appellant)

Representation: Counsel M Windsor SC with G Keesing (Appellant/Cross-Respondent)) F McLeod SC with J Ronald (Respondent/Cross-Appellant)

Solicitors Sparke Helmore Lawyers (Appellant/Cross-Respondent) Shine Lawyers (Respondent/Cross-Appellant)

File Number: ACTCA 33 of 2020

Decisions under appeal: Court: ACT Supreme Court Before: Elkaim J Date of Decision: 23 July 2020 Case Title: SMA v John XXIII College Citation: [2020] ACTSC 198 Court File Number: SC 354 of 2018

Court: ACT Supreme Court Before: Elkaim J Date of Decision: 7 August 2020 Case Title: SMA v John XXIII College (No 2) Citation: [2020] ACTSC 211 Court File Number: SC 354 of 2018

Court: ACT Supreme Court Before: Elkaim J Date of Decision: 4 September 2020 Case Title: SMA v John XXIII College (No 3) Citation: [2020] ACTSC 236 Court File Number: SC 354 of 2018

THE COURT:

This appeal and cross-appeal involve a residential college of the Australian National University (ANU), being John XXIII College (the College), and a student who was a resident of the College in 2015 (who has been anonymised and will be referred to in these reasons as “SMA”). The primary proceedings concerned a claim made by SMA in negligence against the College, the genesis for which was a social event that she attended on 6 August 2015 called “Pub Golf”. As the name suggests, the event involved the consumption of alcohol, with the students moving to several different venues or “holes” around Canberra city. It commenced at the College and concluded at Mooseheads nightclub.
The student claimed that during this event, at some time in the night and while intoxicated, she was sexually assaulted by another resident of the College in the alleyway alongside Mooseheads. SMA had no independent memory of the assault occurring due to her intoxication. She learned of it about ten days later through a friend, who told her that the student at the College (“NT”), with whom she had apparently had sex that night, was joking about his “achievement”.
SMA’s claim in negligence in the proceedings at first instance was that the College owed her a duty of care and had breached this duty in three ways:

(1) By permitting the Pub Golf event to proceed;

(2) By directing the students to leave the College on the night of 6 August 2015; and

(3) In the inappropriate management of SMA’s subsequent complaint.

Judgment was delivered on 7 August 2020, with the primary judge finding that the College had breached its duty of care both in directing the students to leave the premises and in the handling of SMA’s complaint: see SMA v John XXIII College (No 2) [2020] ACTSC 211 (primary judgment). Judgment was entered in SMA’s favour in the sum of $420,201.57 plus costs.
SMA subsequently applied to vary the costs order, relying on an offer of compromise that she had made during the hearing, the terms of which were verdict and judgment against the College in the sum of $400,000, plus costs to be agreed or assessed. Following that application, on 4 September 2020, the primary judge ordered the College to pay SMA’s costs of the proceedings, with such costs to be assessed on a solicitor and client basis from and including 13 July 2020: SMA v John XXIII College (No 3) [2020] ACTSC 236 (costs judgment).
By Further Amended Notice of Appeal dated 25 October 2021, the College appealed the primary judgment in respect of liability, quantum, and costs. The College has sought to set aside the orders made by the primary judge, and instead to have judgment entered in its favour, with costs orders similarly in its favour.
SMA has brought a cross-appeal, filed 1 October 2020. The cross-appeal challenges the quantum of general damages awarded to SMA (complaining that the amount awarded was grossly inadequate) and further asserts that the costs orders made by the primary judge should have required the College to pay her costs on a solicitor and client basis from the commencement of the proceedings, rather than from 13 July 2020 (which was the first day of the substantive hearing).
Both the appeal and cross-appeal are governed by s 37E of the Supreme Court Act 1933 (ACT), in that they are in the nature of a rehearing, albeit error must still be shown: see The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5] and the authorities cited therein.

Issues on the appeal and cross-appeal

The College’s appeal raises 15 grounds. They have been grouped in the way they were argued at the hearing.

(A) Findings of Fact (Ground 1, 2, 6 and 15): the College challenges the following factual findings made by the primary judge –

(1) SMA was intoxicated at the time she left the College;

(2) The College knew about and/or condoned the “Pub Golf” event;

(3) It was likely Mr Johnston (the Head of the College at the time) adopted a stance designed to protect the College’s reputation; and

(4) The students were directed to leave the College premises (rather than finding that they were directed to leave the residential area of the College).

(B) Duty of care, breach and causation (Grounds 3 to 5, and 7 to 9): the College contends the primary judge erred in finding that:

(1) The duty of care owed by the College to SMA extended to the direction given to students to leave the premises; (2) The College breached its duty of care to SMA by directing students to leave the premises;

(3) The breach of duty by directing students to leave the premises caused SMA to suffer loss and damage;

(4) The College owed a duty to investigate the respondent’s complaint competently, and in doing so, treat SMA in a manner consistent with its obligation to provide pastoral care;

(5) The College breached its duty of care to SMA in its handling of her complaint; and/or

(6) But for the negligence of the College, SMA would not have suffered harm.

(C) Admissibility of evidence (Ground 13): The College complains that the primary judge erred in admitting (and without limitation) evidence of a conversation between SMA and NT, which was also recorded by SMA without NT’s knowledge at the time: SMA v John XXIII College [2020] ACTSC 198 (interlocutory judgment).

(D) Contributory Negligence (Ground 14): The College also submitted that the primary judge erred in failing to apply the presumption of contributory negligence in s 95 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act), and in failing to reduce the SMA’s damages by reason of her contributory negligence.

(E) Damages (Grounds 10 to 12): The College further submitted that the primary judge erred in awarding –

(1) The sum of $287,701.57 to SMA for past and future economic loss;

(2) Aggravated damages and exemplary damages; and/or

(3) The sum of $30,000.00 to SMA for aggravated damages and exemplary damages.

On the cross-appeal, SMA raises two complaints.

(A) General Damages: SMA claims that she should have been awarded general damages in the sum of $225,000 rather than the $90,000 sum awarded to her by the primary judge.

(B) Costs: SMA seeks to substitute the existing order in her favour, and in particular, the order for solicitor and client costs from 13 July 2020, with an order that the College pay her costs of the entire proceedings below on a solicitor and client basis. She argues that should have been the consequence of giving effect to r 1010 of the Court Procedures Rules 2006 (ACT) (Rules).

One finding not challenged on the appeal was the primary judge’s finding (at [228]- [229] of the primary judgment) that sex in some form occurred between SMA and NT, although the precise nature of the sexual encounter was not certain. Further, the primary judge found that what occurred lacked the consent of SMA due to her level of intoxication. As the primary judge emphasised, this was a civil finding limited to satisfaction on the balance of probabilities.

Summary of findings on appeal

The fact that the primary judge found there were two separate breaches of duty of care is critical to the outcome of this appeal. As will be explained in the reasoning below, a number of the College’s complaints have substance. The primary judge erred in finding that causation was established in respect of the first breach, and in the assessment of damages for past and future economic loss.
However, no error has been established in relation to the primary judge’s finding that the College breached its duty of care in the handling of SMA’s complaint and that was the more significant cause of the plaintiff’s psychiatric injuries and disability.
In relation to the cross-appeal, no error has been established with regard to the general damages amount awarded by the primary judge and in light of the findings on the appeal and the consequent reduction in the damages awarded to SMA, the costs argument based on an offer of compromise falls away.
The result is that SMA still succeeds in the action she brought in negligence, but the damages awarded have been reduced from the $420,201.57 sum awarded by the primary judge to $267,500. With that overview of the appeal, we turn to each of the parties’ complaints.

(A) Did the primary judge err in the factual findings made?

As the College’s argument involves seeking to overturn factual findings, it is worth explaining how the Court approaches that task on appeal. The principles have been usefully collected in Lee v Lee; HSU v RACQ Insurance; Lee v RACQ Insurance Limited [2019] HCA 28; 266 CLR 129, where the plurality of the High Court, comprising Bell, Gageler, Nettle and Edelman JJ, (with whom Kiefel CJ agreed) stated at [55] (footnotes omitted):

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". …

The above passage includes citations from Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392, Warren v Coombes [1979] HCA 9; 142 CLR 531 (Warren v Coombes) and Thorne v Kennedy [2017] HCA 49; 263 CLR 85.
In this jurisdiction recent cases such as Reardon v Seselja [2021] ACTCA 4 at [6] and Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 at [24] have outlined a similar approach, each citing Fox v Percy and Warren v Coombes, among other cases.
None of the four findings which are the subject of challenge on this appeal involved contested credibility of witnesses.

Was there factual error in the finding that the respondent was intoxicated at the time she left the College?

At [253] of the primary judgment, Elkaim J said (emphasis added):
The position had changed however by the time the decision was made to direct the students to leave the College. By this time the students were very much intoxicated. The College was therefore directing the students, over whom it had assumed a pastoral role, to leave the relative safety of the John’s premises and venture out to other venues, and inevitably and eventually to Mooseheads. When the direction was made, therefore, [SMA] and the other students were not exercising a conflicting autonomous decision, rather they, and in particular the female students, were vulnerable and entitled to the pastoral care of the [College].
The College argued that vulnerability was not enough. The College submitted that the evidence did not establish that SMA herself was “very much intoxicated” at the time of the direction to leave. Further, the College argued that SMA’s level of intoxication was not consistent with an inability to exercise an autonomous decision. The finding was therefore in error. The College argued that the primary judge should have found that SMA had approximately 4 standards drinks over a period of several hours and was not intoxicated to a degree where her reasoning or self-control were impaired.
SMA responded to that argument in two ways. First, SMA pointed to her evidence in the hearing before the primary judge that “I wasn’t sober. I was drunk by the time I left the College”. The primary judge accepted SMA’s evidence that she was “at least “tipsy” by the time she left the College” at [100]-[101] of the primary judgment. Second, SMA argued that the factual finding about her degree of intoxication was irrelevant to the finding as to the vulnerability of the students. It was the latter that formed the basis of the duty of care the College owed its residents. As a general proposition, in 2015 it was reasonably foreseeable to the College that a student of normal fortitude on the end of a physical or sexual assault might suffer a psychiatric illness. She argued there could be no question that drinking created or compounded the vulnerability of the students regardless of the degree of intoxication; whether they were tipsy or drunk did not matter.
The evidence on the point was as follows ([99] and [100] of the primary judgment):

(1) SMA said (through verified interrogatories) that she was “not affected by alcohol such that [her] control was markedly diminished.”

(2) SMA said (in oral evidence) that she was “drunk” by the time she left college and she agreed she was at least tipsy.

The primary judge referred to those two items of evidence before stating at [101] (emphasis added):
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 [the College] 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 transcript of SMA’s evidence – which the primary judge accepted as truthful and there is no challenge to her credit on appeal – included SMA’s evidence that she was intoxicated but not to the point that she was ill or unable to walk. She did not feel that her physical or mental control was diminished at the time she departed, but she had consumed 5 alcoholic drinks from a large red plastic cup (1 in her room and 4 in one of the other rooms at the College). Each time, SMA probably poured more than a standard drink (primary judgment at [98]). The Pub Golf event commenced at 8:00pm and SMA said she left the College at some point between 8:30pm and 10:00pm at the direction of the Night Porter, Mr Adrian Sandrey. The direction of the Night Porter was made at around 9:00pm (primary judgment at [43]). Accordingly, SMA had consumed more than 5 standard drinks over a period of less than two hours.
The primary judge described what occurred during the Pub Golf event at the College at [43], including students throwing up either in the toilets or in bins that had been removed from the kitchenettes on each floor and specifically placed in the students’ rooms for that purpose. His Honour referred to the Incident Report. Part of that report states as follows:

By 8:30pm residents were incredibl[y] drunk and there was vomit in hallways, stairwells and rooms, along with garbage and broken glass bottles. One girl had drunk over a bottle of wine by herself and then fell and hit her head. An ambulance was called at 9:09pm. The entire residence block was messy, loud and the bathrooms had vomit in them. It took 5 people (Duty tutor, Night Porter, 2 CC’s, DH) to clear everyone out and clean up the mess. …

The references to CC and DH are references to “Community Coordinator” and Deputy Head” respectively.
The two facts found by the primary judge were that SMA individually was affected by alcohol, and that the students collectively were very intoxicated by the time the direction by the Night Porter was made. It can be seen from the above that each of those findings was open on the evidence and we see no error in the primary judge so finding.
From those factual findings, the primary judge then drew two secondary factual inferences:

(1) That the students were not exercising a conflicting autonomous decision when they departed the College premises; and

(2) That the students, in particular the female students, were vulnerable and entitled to the pastoral care of the College.

The College’s submission misunderstands the primary judge’s finding. The primary judge did not make a finding that SMA’s reasoning or self-control was impaired, nor did his Honour make a finding about SMA’s level of intoxication being to the point where she could no longer make autonomous decisions. What his Honour was directing attention to is made clear by later context, namely the primary judge’s reasons at [141]- [142]:
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. 142. 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.
The vulnerability of SMA as a female student at the College arose from her individual level of intoxication (as found by the primary judge), the collective state of inebriation of the other students (again as found by the primary judge) and the additional circumstance that in such a state, the group was collectively directed to depart the College – that is to leave the environment where SMA lived and where there would have been other students in the same common areas, where the ability to buy alcohol from the College Tavern ceased earlier in the night than at commercial establishments and where persons with a degree of control, such as a night tutor and a night porter, had a presence.
We are not persuaded that there was any error in the findings of the primary judge, but in any event, properly understood, whether SMA was “tipsy” or “drunk” was not material to the finding of the vulnerability of the students of the College by the circumstances that either were created or had arisen on the night in question.

Was there factual error in finding the appellant knew about and/or condoned the “Pub Golf” event?

The College challenges the following factual findings made by the primary judge at [16], [204] and [205]:
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. … 204. 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. 205. 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.
The College submitted that the primary judge ought to have found that the College remained ignorant of the Pub Golf event until well after it concluded. It based the argument on Mr Johnston’s evidence in chief, which was to the effect that he had never heard of “Pub Golf”, that he and his staff did not learn of the nature of the event held that evening until several days later, and that Mr Johnston was not challenged on any of that evidence in cross-examination.
The College also pointed to a communication in evidence, sent to all College residents by Mr Johnston following the event on 6 August 2015, stating that Pub Golf was something that was not allowed at the College “because of the danger of the event,” and noting that the event was “organised by people who knew it was a banned event hence they tried to disguise it.”
SMA argued that the finding was open and was based on:

(a) The roles of each of the Community Coordinators and Senior Residents (SRs) as described in the College’s Resident Handbook 2015 (Handbook);

(b) The evidence of one of the student witnesses as to her experience of Senior Residents at the College;

(c) The evidence of another student that led to the finding that the sheer scale of the Pub Golf 2015 event would have made it impossible for it not to be noticed by the Deputy Head, who lived in the College and was around on the night; and

(d) The evidence of the Night Porter contained in an incident report as to what occurred on the night (the Night Porter was not called to give evidence).

The submissions made by SMA are accepted. Again, it is important not to misunderstand the finding made by the primary judge. His Honour found that the College condoned events like Pub Golf and fostered the consumption of alcohol as a normal part of college life.
The argument by the College that it remained ignorant of the Pub Golf event until well after it concluded is not supported by the evidence. First, it ignores the role of Senior Residents in carrying out functions for and on behalf of the College.
In that regard, the primary judge referred to the Handbook (at [76]) and extracted a number of relevant excerpts. The Handbook includes the following passages (emphasis added):

6.1 Residents’ 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 coordinators the roles of, amongst others the Community Coordinators, Senior Residents and the Night Porter, in maintaining good order. The College strives to create a happy, warm and supportive family atmosphere that is self-regulated and which considers the needs and interests of all its members. … … 9.0 COLLEGE APPOINTMENTS & RESIDENTS’ ASSOCIATIONS The Head of College, Deputy Head of College, Community Coordinators and Senior Residents are all available to support those Residents who have pastoral, academic, health, mental health or personal problems. 9.1 Community 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 share responsibility for the Senior Resident Programme and the Academic Mentor Programme. 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. … … 9.2 Senior 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. … … Where a Resident conducts him/herself in a way that invites Level 2 intervention, the CCs may, after receiving a report from the SR, impose…Sanctions… or the SRs may intervene themselves to resolve the issue without the need for a CC-imposed Sanction. …Through fine role modelling and conduct, SRs nurture the ethos of [the] College and live its values as a Catholic, academic university college. SRs are an easily accessible point of contact for Residents… SRs are the first point of contact for Residents’ pastoral care needs. They participate in the Duty Roster, performing the role of Duty Officer approximately every twelfth night. At [the College], SRs each have a broader Community Portfolio or area of responsibility. … SRs oversee corridor events that nurture community spirit and are leaders in every sense of the [College] Community. SRs carry master keys to their corridor and may let Residents back into rooms when Residents lock themselves out and, with appropriate permission, can grant access to other secured areas of the College. They also provide information and feedback through weekly meetings. After hours, SRs are delegated authority by College Administration to monitor and enforce policies regarding Resident behaviours...

The College argued that it was insufficient to simply point to a group of people who, in combination, had knowledge and attribute that state of mind to the knowledge of the College, relying upon cases such as Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 (CBA v Kojic) and Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; 146 FCR 292 (ACCC v Radio Rentals).
The College submitted that in determining what a company such as the College “knew”, the starting point is whether a particular person, in doing particular things, is to be regarded as the company, relying on Hamilton v Whitehead (1988) 166 CLR 121 at 127. The test has been expressed in terms of the necessity to specify some person or persons so closely and relevantly connected to the company that the state of mind of that person or persons can be identified with the company: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 565 at 582-583 (quoting Bright J Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279, Bray CJ and Mitchell J agreeing).
In CBA v Kojic, Allsop CJ considered (at [66]) that, depending on the statutory context, separate information held by an officer or agent may be aggregated with information held by another if there is a duty and opportunity to communicate it to the other. Edelman J’s view (at [89]) was that, in the context of the particular statutory regime of unconscionable conduct, “aggregated corporate knowledge” as a concept could not be applied to reach a conclusion that the corporation itself “acted unconscionably contrary to statutory proscriptions.” There was a careful emphasis upon the statutory context in which those findings were made, which is a very different circumstance to that under consideration here.
The same may be said of ACCC v Radio Rentals, where Finn J at [176]-[183] also considered aggregated knowledge in the context of unconscionable conduct. His Honour was again careful (at [183]) to confine his comments to circumstances where what was sought by the aggregation of the knowledge was to alter the character of that knowledge when it is attributed to the employer corporation where no justification for the aggregation has been made out. Again, that is not the case under consideration here.
However, even accepting the general care or caution that must be taken in imputing the knowledge of a group of people to the knowledge of the College, the College’s argument fails to recognise that after hours, it was the SRs who had the express “delegated authority by the Head of College to monitor and enforce polices regarding Resident behaviours”, with reporting obligations. They are included in the organisational chart in the Handbook as reporting to the Deputy Head of College who in turn reported to the Head of College. The primary judge found at [77] that the close relationship between the College and the SRs was enough to import knowledge of the event to the College. That finding was plainly correct in light of the chain of responsibility and in particular their “delegated authority” to enforce the College’s policies after hours. As submitted by SMA, the evidence established that a number of SRs knew about the event before it took place, and further, that a number of SRs participated in the Pub Golf event in August 2015.

Was there factual error in finding it was likely Mr Johnston adopted a stance designed to protect the College’s reputation?

The College challenges the first sentence in [271] of the primary judgment:
It is also likely that Mr Johnston adopted a stance designed to protect the College’s reputation. It is with this background that the meeting on 12 November 2015 occurred. As submitted by the plaintiff, the only reasonable explanation for Mr Johnston’s conduct is that he was intent on undermining the plaintiff’s confidence so that she would not continue with her complaint.
The motivation of the Head of College in the conduct that occurred is relevant to the question of aggravated or exemplary damages that were awarded by the primary judge; a matter that is dealt with separately below.
The College argued that it was not put to Mr Johnston that he had adopted a stance designed to protect the College’s reputation. The contention was not advanced in pleadings or opening submissions and the College complains it was unfair to both the College and Mr Johnston to make that finding. Further, the College argued that the finding was unsupported by any evidence.
SMA submitted that a significant portion of the cross-examination of Mr Johnston was directed toward the reputation of the College, both generally and in response to SMA’s complaint.
In our view, the inference drawn by the primary judge was open on the evidence.
First, the Incident Report includes an email sent from Mr Johnston to the students on 11 August 2015. Mr Johnston confirmed in evidence in chief that he sent the email. The email commences: “I write to express my great disappointment at the behaviour of a large number of you last Thursday night. This disappointment is at a number of levels”. The email then lists 7 points, one of which was “[t]his event also had the potential to create bad publicity for the College and put our name in disrepute”.
In the face of that evidence in chief, it did not need to be put to Mr Johnston that he was concerned about the College’s reputation following the Pub Golf event.
Second, Mr Johnston confirmed under cross-examination that he was “always looking at the reputation of the college” and it was a factor he considered “all the time.” Mr Johnston was asked a series of questions about what he reported to the ANU in relation to incident involving SMA. He agreed that he had not notified the ANU that there had been an allegation of sexual assault in the formal way required, and that it was likely the ANU only came to learn about the allegations because SMA’s parents complained to the ANU about his handling of their daughter’s complaint. In that context, the following exchange occurred:

[Counsel] … it was not going to count as brownie points, was it, for the college with the ANU…had you told the ANU that you had yet another complaint of a sexual assault at [the College.] [T]hat wasn’t going to help the college’s reputation much, was it? [Mr Johnston] I don’t believe that was the point of the conversation I had with them. … [a]nd that was not in my thoughts. [Counsel] … you were worried about the College’s reputation, weren’t you? [Mr Johnston] I deny that.

Mr Johnston was then asked whether he was worried about the College’s reputation in general terms, and he answered, “that is a factor I consider all the time.”
The exchange continued:

[Counsel] This event would hardly enhance [the College’s] reputation, would it? [Mr Johnston] …Well, it’s, can you collect the data so they know what’s there, so yes, they would find out about it. There’s – and that is what is required.

Counsel for SMA then cross-examined Mr Johnston about the contents of the report to the ANU subsequently written by Mr Johnston on 29 March 2016. The questions directed to Mr Johnston were to the effect that he sought to sanitise the report and did not tell “the whole story” to the ANU. It was put to Mr Johnston that in his report to the ANU, he sought to distance the College from the assault by saying it occurred in the city without also mentioning that it followed a drinking event which started at the College. The primary judge accepted that view of Mr Johnston’s evidence (at [226]) and that finding is not challenged on appeal.
Counsel put to Mr Johnston that he was actively misleading the ANU, which was denied. Mr Johnston’s evidence was again that he gave ANU only the information that it had asked for, and that all ANU was doing was “data collection”.
Third, Mr Johnston had previously given evidence that, at the time he was inducted as the incoming Head of College, he was made aware that ANU’s opinion of the College was highly unfavourable. He was told that the ANU “had a very thick folder”, although he denied knowing that the College was at risk of disaffiliation in view of complaints that had been made about the Colleges response to complaints of, among other things, alcohol usage, sexual assault and sexual conduct (which, in context, meant “misconduct”). Mr Johnston had also agreed that the College had a bad reputation in the past, a historical reputation which he did not like.
The above demonstrates that Mr Johnston’s concern about the reputation of the College was a factor that he considered all the time, and that he had a specific concern for the College’s reputation following the Pub Golf event at the College. There was no unfairness to either Mr Johnston or the College in the primary judge’s finding that Mr Johnston “likely… adopted a stance” with a concern to protect the College’s reputation. The language used by the primary judge at [271] of the primary judgment might have been expressed in a less contentious manner, or rather, the use of the word “designed” may have been open to an unintended interpretation. However, when the finding is properly understood as Mr Johnston handling SMA’s complaint (and in particular, investigating it himself and becoming involved as a support person for NT) with a concern for the College’s reputation, in our view, there was sufficient evidence to make such a finding open. Did the primary judge err in finding the students were directed to leave the College premises, rather than finding that they were directed to leave only the residential area of the College?
The College challenges the following findings at [253] and [258] (emphasis added):
The position had changed however by the time the decision was made to direct the students to leave the College. By this time the students were very much intoxicated. The College was therefore directing the students, over whom it had assumed a pastoral role, to leave the relative safety of the John’s premises and venture out to other venues, and inevitably and eventually to Mooseheads. When the direction was made, therefore, the plaintiff and the other students were not exercising a conflicting autonomous decision, rather they, and in particular the female students, were vulnerable and entitled to the pastoral care of the defendant. … 258. The distinguishing point in the present case is that when the direction to the students was given for them to leave it was given in the knowledge that they were intoxicated, probably going to become even more intoxicated, and they, as a group, contained two elements of risk: [d]runk young men and vulnerable and intoxicated young women. It is to be remembered that NT was one of the students sent out from John’s. He was not a stranger over whom the College had no influence. The plaintiff was not assaulted by a person she met at Mooseheads or elsewhere following the direction to leave the College. She was assaulted by a fellow student who was also one of the persons directed to leave.

The duty of care owed extended to the direction given to students to leave the College

The College challenged the primary judge’s findings as to duty of care. They are set out at [258]-[262] of the primary judgment as follows (emphasis added):
The distinguishing point in the present case is that when the direction to the students was given for them to leave it was given in the knowledge that they were intoxicated, probably going to become even more intoxicated, and they, as a group, contained two elements of risk: Drunk young men and vulnerable and intoxicated young women. It is to be remembered that NT was one of the students sent out from John’s. He was not a stranger over whom the College had no influence. The plaintiff was not assaulted by a person she met at Mooseheads or elsewhere following the direction to leave the College. She was assaulted by a fellow student who was also one of the persons directed to leave. 259. In addition, but perhaps of less significance, is the control that John’s ought to have exercised over NT as one of its students, and in accordance with its pastoral duty of care. 260. It follows that I am satisfied that the duty of care owed by the defendant to the plaintiff did extend to the direction given to leave the premises. In reaching this conclusion I have adopted the approach set out in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors [2009] NSWCA 258; 75 NSWLR 649. Allsop P (as he then was) said this from [102]: 102. This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. 103. These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. 104. There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. 261. I have also adopted the reasoning suggested in Zanner v Zanner [2010] NSWCA 343 by Tobias JA, at [79], who stated, after examining the relevant authorities: The most that can be extracted from the foregoing references is that this Court’s determination of whether it is appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent, is to be considered as a matter of common sense taking into account any relevant policy considerations that might assist in determining whether or not, and why, responsibility for the harm to the respondent should be imposed upon the first appellant. 262. Considering the duty of care owed to the students included their welfare and taking into account the knowledge of the College of the possible consequences of the over consumption of alcohol by already intoxicated students, it was, as a matter of common sense, a breach of its duty of care to direct the students away from the premises. In addition I would add that as a matter of policy the care for students by a residential college would enhance the existence of the duty of care.

(a) It was reasonably foreseeable that a person of normal fortitude in SMA’s position would suffer a psychiatric illness as a consequence of becoming voluntarily intoxicated and then having sexual intercourse or some other sexual encounter with another student (the intercourse or encounter constituting a sexual assault solely by reason of her level of intoxication); and

(b) If it was, whether reasonable care in the circumstances required that “students engaged in the revelry on 6 August 2015 not be directed to leave the residential part of the college”.

In respect of the submission that the approach of the primary judge was contrary to authority, the College referred to cases such as Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at [89] (quoting Lord Hope of Craighead in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 379-380) and Agar v Hyde [2000] HCA 41; 201 CLR 552 at [88]-[90] as establishing “unequivocally” that there is no general duty to prevent another from voluntarily participating in a risky activity. Here, the College argued that the activity was, according to the primary judge, becoming intoxicated in the presence of “drunk young men”.
Turning to the arguments of SMA, it was submitted that the proper approach to identifying the scope of a duty of care was precisely that applied by the primary judge, namely a “salient features” approach, citing the judgment of Gummow and Hayne JJ in Graham Barclay Oysters v Ryan [2002] HCA 54; 211 CLR 540 at [149], and Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180, where Gummow J said at [198]:

The question…is whether the salient features of the matter give rise to a duty of care… In determining whether a duty of care arises, attention is to be paid to the particular connections between the parties. …

SMA also supported the primary judge’s reliance (at [247] of the primary judgment) on Waters v Winter and the University of New England [1998] NSWCA 254. In that case, a plurality in the NSW Court of Appeal dismissed an appeal against a finding that the university had no relevant duty of care which extended to hiring security guards for a campus event, during which a student was assaulted. Relevantly, Stein JA set out the conclusion of the judge at first instance in that case at 7 (emphasis added):

In my opinion the relevant factors to be taken into account in deciding whether or not a duty of care was imposed on the University depends upon a consideration of the relevant degree of proximity between the University and the plaintiff student. Whether there was an inherent foreseeable risk of injury in the circumstances that eviction of a trespasser in the particular circumstances may lead to violence unless properly handled by professional security people and whether the University was vicariously liable for any negligence on the part of the Master of the college. Whilst I accept that the University is bound by a general duty of care towards its students to protect them from a risk of injury of which it is aware or ought to be aware and that the Master of the college was primarily responsible for the welfare of the students in the college I am not persuaded either that the Master was guilty of negligence in allowing this particular function to proceed without the provision of paid security staff nor that there was an independent duty of care imposed on the University to ensure that such protection was provided at the relevant time. …

Having extracted the above passage, as articulating the applicable scope of the duty of care, the primary judge stated at [248] (emphasis added):
In Waters a student living in a residential college on a university campus in Armidale was assaulted by a ‘gate crasher’ at a university event. The student sued the University alleging that it had failed to provide appropriate security at the event. Although the plaintiff failed in Waters, the statement of the scope of the duty of care set out above I think is applicable here. The duty described above is consistent with the pastoral protection that John’s purported to offer its residents. …
SMA argued on appeal that the relationship between the College and its students was not comparable to that of a hotel and a patron, such as was considered in C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board & Scott (2009) 239 CLR 390 (a case concerning the right to exercise individual autonomy relied upon by the College and considered but distinguished by the primary judge at [251]).
In our view, the issue is resolved by a straightforward application of the Wrongs Act.
The College had accepted that it owed SMA, a resident of the College, a duty of care (primary judgment at [246]). The duty of care owed by the College was that of a reasonable person in the College’s position, who was in possession of all the information that the College either had, or ought reasonably to have had, at the time of the incident out of which the harm arose: s 42 of the Wrongs Act.
The content of that duty was to take reasonable precautions against risks of harm that were (a) foreseeable, (b) not insignificant, and (c) are precautions that, in the circumstances, a reasonable person in the same position would have taken: s 43(1) of the Wrongs Act.
Where the risk of harm is of psychiatric injury, the assessment of whether it was “a foreseeable risk” must be established by reference to the whether a person of normal fortitude in the same position as the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: s 34(1) of the Wrongs Act.
The circumstances or information known to the College at the time were as follows:

(a) The College held itself out as providing pastoral care (notwithstanding the College’s argument that it owed no more than the duty of an occupier). That included holding itself out as providing educational and religious support. The activities were not incidental, and the College saw its role as more important than simply providing accommodation: see primary judgment at [219]-[220].

(b) The College permitted alcohol to be consumed on its premises including in the residential areas of the College.

(c) The College at the time was aware of a drinking culture that was endemic to the College: primary judgment at [20], [127] and [130].

(d) The College exercised control over the residents’ behaviour through the policies which were enforced, including as to behaviour after hours, both on and off the College premises. Part of the College Alcohol Policy (found at page 22 of the Handbook) was to apply the norms of the broader community relating to resident behaviour and to ban binge drinking.

(e) On the evidence that was before the Court at first instance, there had been a number of incidents at the College where complaints of sexual assault had been made by female residents against male residents (or in one case, against a former male resident who had entered the College), after alcohol had been consumed, including at venues in Canberra such as Mooseheads.

(i) In 2012, as part of reporting to the ANU as to what steps the College was taking to improve its culture, the female residents involved in the incidents were described by the then Head of College as “vulnerable young women”.

(ii) In 2014, there was an incident with a complaint by a first-year female resident of sexual assault after the College residents had been drinking, after a “night out in Canberra” (being language used in the College’s records). On that occasion, the complaint was that the assault occurred in a bedroom when she returned to the College. The female had required counselling, which was provided by the Canberra Rape Crisis Centre.

(iii) Again in 2014, a different female student sought a transfer from the College to a different residential college at the ANU, and in that request, she described the consequences for her following a serious incident which occurred at the College. She had undergone counselling with a number of different services at the ANU and with the Rape Crisis Centre but was still experiencing anxiety and fear, which affected her ability to go to lectures and tutorials and to be around other residents.

(f) The previous incidents at the College meant that, at the time when the relevant duty of care was to be exercised, being the night of 6 August 2015, the College knew or ought to have been aware that:

(i) Residents at the College, and in particular female residents, were vulnerable to sexual assault where residents were heavily intoxicated, whether they were on or off the College premises; and

(ii) If an incident occurred, there were ongoing psychological consequences for the female resident involved.

In those circumstances, in 2015, the risk of harm may be described as the risk that an intoxicated resident of the College may physically (including sexually) assault another resident of the College, on or off the College grounds, resulting in that student suffering a psychiatric illness. Such risk was heightened if the victim was also intoxicated.
Further, the risk of psychiatric illness following a sexual assault was a risk that might be suffered by a person of normal fortitude. In the circumstances known to the College at the time, that risk was foreseeable, and it was not insignificant.
At the time of the incident out of which the harm arose occurred, the College had the additional information (as found by the primary judge) that there was a serious situation at hand with groups of residents – indeed two-thirds of the College – in a state of excessive drunkenness (see primary judgment at [207]-[209], [255]).
The above reasoning is consistent with the primary judge’s application of s 43 of the Wrongs Act, as seen at [275]-[277]:
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”. 276. 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. 277. 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.
Acting reasonably, the precautions a residential college holding itself out as providing pastoral care for the welfare of the residents should have taken to guard against the risk of sexual misconduct occurring (on or off site) plainly extended to implementing the policies it had in place for controlling the behaviour of the residents. In accordance with the College’s policy as set out in the Handbook, the direction that should have been given was one that would have directed the residents to the common room and further, that whatever event was occurring must cease immediately as it was in clear breach of the College’s Alcohol Policy.
Accepting that the students were adults with the concomitant degree of freedom and autonomy, they were adults whose behaviour was subject to a behavioural code that was in place at the College. The directions given by persons such as the Night Porter, the Community Coordinator, the Deputy Head and the Head of College were directions with which they were required to comply. There is no error in the primary judge’s finding that the duty of care extended to the direction given by the College, at the College, to the residents. As the primary judge found at [262], it was a matter of common sense.

Whether the College’s direction to leave the premises caused the harm suffered by SMA

The primary judge’s findings as to causation are set out at [278]-[279] of the primary judgment:
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. 279. 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).
The College challenged these findings and argued that the evidence did not establish a causal link between the direction to leave the College and the harm that resulted. It submitted that SMA did not give evidence that but for the direction, she would have stayed in the College. Further, that consequence is implausible because the invitation to the Pub Golf event set out how the night was to progress. The plan was for the students to leave the College from 9.30pm, with the “first hole” to commence at Uni Pub at 10:00pm.
The College argued that what occurred when the students left the College was that they proceeded to the Uni Pub in accordance with the predetermined itinerary. The only logical inference is that they would have done so regardless of the direction made by the College.
As to the primary judge’s findings at [279], the College argued that it is not to the point that possible alternative measures could have been taken. What was necessary to establish was that they would have been effective, and there was no evidence that was the case.
SMA argued that the primary judge dealt with the issue of causation in a conventional way. Upon properly considering the evidence and applying a common-sense test, the primary judge found that the failure to take steps to avert the risk and the direction to send the students away from the College was a “necessary condition of the happening of the harm” (being the words used for factual causation in s 45 of the Wrongs Act) suffered by the respondent.
In our view, there are two difficulties with the reasoning of the primary judge. As his Honour found, the breach of the College was in directing the students to leave the College “to venture to drinking venues where it was inevitable that more alcohol would be consumed”: primary judgment at [101]. However, his Honour did not address the fact that the students who were participating in the Pub Golf event were following a particular itinerary, and thus were all expecting to leave the College from 9.30pm to do exactly what occurred; namely, attend the Uni Pub and ultimately congregate at Mooseheads, and to continue drinking more alcohol at those venues (thus becoming more intoxicated). Even if the direction to leave the College occurred half an hour earlier than the Pub Golf participants had planned to leave, it is hard to accept that the direction itself was a necessary condition of the course of events that then followed. At most, it brought forward a situation that was to occur even without the direction – that of drunk College residents leaving the College together to drink more alcohol at specific venues in Canberra.

Whether there was error in the primary judge’s findings concerning the College’s handling of SMA’s complaint

In dealing with the duty owed by the College in respect of SMA’s complaint, and whether it was breached, it is important to understand what SMA’s case was and then what the primary judge found.
SMA pleaded that the College had a duty of care in responding to claims of the type made by her. That included:

a) Ensuring that an adequate policy for the handling of sexual harassment and assault is in place and enforced within the College. b) Ensuring that residents who have reported possible sexual misconduct are not blamed, ostracized or harmed as a consequence of their report. c) Ensuring that residents who have reported possible sexual misconduct are taken seriously. d) Ensuring that any response to reports of possible sexual misconduct are calm and empathetic. e) … f) Ensuring that residents who have reported possible sexual misconduct are provided with counselling and psychological support. g) … h) … i) … j) Ensuring that perpetrators of sexual assault are reported to the police. k) Ensuring that perpetrators of sexual assault are reported to the ANU. l) Ensuring that perpetrators of sexual assault are removed from contact with victims of sexual assault. m) Ensuring that perpetrators of sexual assault are excluded from the College.

SMA pleaded a further risk of psychological harm if:

(a) The sexual assault was not responded to appropriately;

(b) SMA was not sufficiently treated in a timely fashion; and

The failure to take precautions against the risk included (among other things):

(a) Failing to arrange for SMA to have immediate psychological advice and counselling;

(b) Blaming SMA for the sexual assault;

(d) Dismissing the SMA’s concerns.

The relevant findings of the primary judge are at [280]-[282] (emphasis added):
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. 281. 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. 282. 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.
Earlier in considering the duty of care owed by the College, the primary judge stated at [267]-[270] of the primary judgment (emphasis added):

267…The plaintiff’s case is not that she should have been favoured over NT, or that NT should not even have been interviewed, but rather that the manner in which Mr Johnston dealt with her was negligent. This is a separate issue to his obligation to take account of NT’s position. 268. It is also to be remembered that the plaintiff came forward to the College seeking its assistance. She sought out the pastoral care that the College ‘advertised’ to its residents. 269. The first meeting with the College took place on 26 October 2015. The plaintiff expressed her concerns and left with the expectation that her complaint… would be properly dealt with. The meeting was non-confrontational and the plaintiff felt “buoyed”. She did not hear back from Mr Johnston until the next meeting on 2 November 2015. This meeting was the beginning of the shift in the College’s approach. By this time Mr Johnston had spoken to NT. Instead of being the shepherd he now became an investigator and adjudicator, and at the same time, most surprisingly, appointed himself as the support person for NT. I am not suggesting NT was not entitled to a support person, rather it should not have been Mr Johnston. 270. The Resident Handbook places the obligation for an investigation upon the Deputy Head of College. Ms Curtis however did not conduct the investigation. There may have been a particular reason for this, as hinted in the medical report annexed to the affidavit forming Exhibit 22. Whatever the case, Mr Johnston decided to take over his deputy’s role, as well as the broader role I have described above.

There can be little doubt that the College had a duty to investigate complaints by residents against each other competently. That was the effect of SMA’s pleading that the policy for the handling of complaints of sexual harassment be adequate and enforced. That duty was what the primary judge accepted at [280] and we do not see that the finding was in error.
The College argued that the primary judge’s reasoning concerning the foreseeability of the risk of psychological harm at [281] (the emphasised words at [108] above) did not engage in the analysis required by s 34 of the Wrongs Act. That argument must be rejected. The requirements of s 34 have already been set out above at [73] of these reasons. Whatever a particular resident’s complaint, but particularly where the complaint is one of sexual assault, the subsequent mismanagement of that complaint is obviously a matter that may have an impact on the complainant’s psychological state. No further analysis was required by the primary judge than that stated by his Honour.
The College next argued that there was no duty to address or mitigate the consequences of a third party’s acts. The fact that a complaint was made is not sufficient to establish a duty in negligence.
However, neither of those matters are what was alleged by SMA to comprise the College’s duty. The context in which a duty to investigate the complaint competently arose was where the College accepted that it had a duty to exercise care for the welfare of its residents, and where it exercised a degree of control over their behaviour through the enforcement of its policies as a condition of the residents becoming part of the College community.
The College went on to submit that “the strong tenor of his Honour’s reasons is that, irrespective of what Mr Johnston had learned in the course of his investigations, his duty was to believe the respondent’s allegation of sexual assault, and act accordingly by expelling NT from the college”. That complaint is said to arise from passages such as [61] and [111] of the primary judgment. The surrounding context to those paragraphs has been extracted below as it is relevant to the argument made (emphasis added):
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. 61. 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.

• I was a headmaster for several years and like to think I am a pretty good judge of character • I’ve listened to the recording several times and you both appear to be very anxious about the situation. [NT] doesn’t seem to have a bragging tone • I’ve had [NT] in here and I really hammered him • I really did want to find something to hang him on • He was very upset and on the verge of tears • Now I’m not referring to your situation, but we don’t want a situation whereby a girl were to make a false accusation and we were to act on that without evidence • Because you said yes everything is fine when you two were walking home there isn’t enough evidence • He didn’t appear to be exhibiting predatorial behaviour • He said that he didn’t have any drinks after he went into Mooseheads • He walked you home and put you to bed • Sometimes when boys are drunk they can be quite arrogant but they are often underperformers • I’m not really sure that anything did actually happen • Another concern is how you managed to get that drunk • My main concern is you; there is help available and counselling • You obviously are worried about people talking • I’m not even sure anything did happen in the alleyway • And I think maybe that you didn’t want anything to happen • You two were obviously getting on quite well • He didn’t have any drinks after he went into Mooseheads

The second passage relied upon ([111] of the primary judgment) by the College as disclosing an error in reasoning is as follows, again with the contextual preceding paragraphs included (emphasis added):
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. 108. 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. 109. 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. 110. 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] HCA 8; (1959) 101 CLR 298). 111. 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.

Whether there was error in finding that the breach of duty in handling SMA’s complaint caused her to suffer the harm alleged

Following on from the primary judge’s discussion of duty and breach at [267]-[282], the College challenged the finding as to causation at [283] of the primary judgment (emphasis added):
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 College argued that the evidence did not establish the comments made by Mr Johnston caused SMA’s psychiatric injury. It asserted that the evidence (both lay and expert) was that SMA’s psychiatric injury arose as a consequence of the assault and was exacerbated by her perception of injustice arising from the College’s failure to believe that she had been sexually assaulted, and failure to “do something about” the assault allegation, by which she meant expel NT from the College.
SMA pointed to the competing evidence, some of which is set out above in relation to duty and breach in the handling of the complaint. The evidence given by SMA was that Mr Johnston’s handling of the complaint, and in particular (but importantly, not limited to) his comments at the meeting he had with SMA on 12 November 2015, caused her to become “pretty distraught”, and to feel as if Mr Johnston blamed her for getting drunk. SMA’s evidence, which was generally accepted, was that the consequence of Mr Johnston’s conduct was to give her the impression that she was responsible – that the assault was her fault – and that thought has never left her.
SMA also drew the Court’s attention to the evidence of an ANU counsellor, who referred to the incident “and its aftermath” (which is taken as including the College’s response to the incident), drawing a causal link to SMA’s consequent mental state. The ANU counsellor described the erosion of SMA’s psychological and emotional safety and security which had “affected her socially, emotionally and academically”. In referring to that evidence, it must be remembered that the letter of the ANU counsellor was given for a different purpose, namely, to support an application by SMA for release from her contract with the College. The reference to “aftermath” may have been broader than the way the College handled SMA’s complaint and thus has limited value.
However, added to this is the evidence referred to by the primary judge from Dr Smith and Dr Parmegiani. It was set out in detail in the primary judge’s reasons at [231]- [244], but it suffices to record what was said at [240]-[244]:
Both doctors put to rest any causation issue that might have been said to arise from a distinction between the manner in which the College dealt with the plaintiff and what might have occurred had it dealt with her in a different way. 241. Dr Smith, in his final report, stated: She continues to demonstrate marked psychopathology, and the impact on her as a result of the events that she has been exposed to and in particular, the lack of support she has described from the college remains indelibly imprinted on her. 242. Dr Parmegiani, in his first report, said: [SMA’s] symptoms were attributable to the incident of 6 August 2015 and the college’s response to her complaint. Both conditions contributed equally to her psychological problems. 243. I have already commented on Dr Parmegiani’s views on contribution. For present purposes what is important is that he links her condition directly to the “college’s response to her complaint”. 244. However, if there is any doubt on this causation issue it was dealt with by Dr Smith who stated: I remain of the firm view that [SMA’s] psychological/psychiatric condition could have been preventable or minimised had counselling been received immediately upon disclosure of the sexual assault of 6 August 2015. A more proactive supportive stance by the college, in my opinion, would have gone some considerable way towards demonstrating to [SMA] that her complaints were not to be dismissed. Provision of appropriate psychiatric and psychological support should have been provided along the lines I have previously outlined. Unfortunately, [SMA] has continued to ruminate upon the failure of the college to act appropriately in the circumstances, and this has resulted in ongoing chronicity of her symptoms.

[i]t is important to remember that this recording was listened to, I understand a number of times by Mr Johnston, the Head of College, employed by the first defendant. His actions are at the core of this case and, in turn, his dealings with the plaintiff in the light of him having heard the recording.

The primary judge found that both the recording and SMA’s evidence of the conversation were admissible pursuant to ss 64(2) and 138 of the Evidence Act 2011 (ACT) (Evidence Act), the latter by reason of the exception in s 4 of the Listening Devices Act 1992 (ACT) (Listening Devices Act).
His Honour further held that no limiting order should be made under s 136 of the Evidence Act, because NT’s admission had been admitted without limitation, and as such to limit the use of the recording would be inconsistent with that ruling: see [13] and [24] of the interlocutory judgment.
The College’s primary arguments on this ground were that each of the recording and SMA’s account of it were hearsay (and therefore excluded by the operation of s 59 of the Evidence Act). The College submitted that his Honour erred in admitting the evidence for two reasons:

(1) First, because of an error in finding that it would not be “reasonably practicable” to call NT, and

(2) Second, because of an error in the application of the Listening Devices Act.

As to the first, had the cause of action been against NT directly, the evidence would have been admissible under s 81 of the Evidence Act. However, because the proceeding was brought against the College, NT was a third party to the proceedings. Accordingly, s 83 of the Evidence Act applied, as NT had not consented to the admission being used.
Section 64(2) was relied upon as the exception to the hearsay rule whereby the evidence could be admitted. The College’s complaint requires some understanding of what the section says. It is in the following terms (emphasis added):

64 Exception—civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to— (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation; if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by— (a) the person; or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination-in-chief of the person who made the representation, unless the court gives leave.

The circumstances before his Honour were that NT was available. As at 13 July 2020, NT was also under subpoena to give evidence, with that subpoena issued by the College. It is not apparent from the interlocutory judgment why those circumstances were not sufficient to bring the evidence within s 64(3) of the Evidence Act, subject to s 64(4).
In any event, the ruling made by the primary judge was that it was “not reasonably practicable” to call NT because of an unwillingness to give the evidence in question. The College complained that an unwillingness to give particular evidence was not part of an assessment of reasonable practicability, but SMA argued that the conclusion at [10] should be read as the primary judge considering that NT would be unwilling to give evidence if called by SMA.
There is force in the College’s point, in that those words in the section address whether it is reasonably practicable for the witness to give evidence at all, and not the content of the evidence. However, the admission of the evidence had no bearing on the outcome of the proceeding, as the fact of the admission was not contested by the College.
It is difficult to see how there was any prejudice to the College in admitting the evidence of NT’s admission and the recording of it in circumstances where, as is plain from the primary judgment, other evidence was then admitted during the trial as to what NT subsequently said, including evidence as to the circumstances in which the admission was made. The same ruling would have applied to all of NT’s statements about what occurred. Further, NT was plainly a witness that could have been called to deal with that evidence. That was a matter about which the primary judge drew an inference (at [228] of the primary judgment), namely that his evidence would not have assisted the College.
The second aspect of the College’s complaint is that the primary judge misapplied s 4(3)(b)(i) the Listening Devices Act, the requirements of which were set out at [16] of the interlocutory judgment. In short, if both parties do not consent to the conversation being recorded, but one of the principal parties does (in this case SMA), then the recording must be considered by that party “on reasonable grounds, to be necessary for the protection of that principal party’s lawful interest”.
The scope of the section was discussed in detail in Dong v Song [2019] ACTSC 82, which was referred to by the primary judge and no party on appeal sought to depart from what was there set out. The primary judge then reasoned at [19]-[20] of the interlocutory judgment, as follows (emphasis added):
... Because the plaintiff has no memory of the event the recording goes beyond capturing a mere admission by the alleged perpetrator. It provides the plaintiff with an explanation of an event which has only been made known to her through possibly inadmissible material, in particular material which might not be allowed to be given as evidence in court because, for example, it is hearsay evidence, and in this case, perhaps even hearsay evidence of a secondary nature. 20. In addition to the plaintiff’s interests in respect of any possible criminal proceeding, there are also her lawful interests in her capacity to assess any civil legal proceedings against NT.

… of course does not mean, without more, that it proves the assault took place. Ultimately it will be a question of what weight is given to the evidence, especially in the light of his subsequent denials.

In circumstances where NT was known to the College, was an obvious witness to be called by the College, was not only available to give evidence but under a subpoena to give evidence issued by the College, and where the College itself relied upon other statements he made to Mr Johnston which were admitted into evidence without limitation, the College’s complaint has no substance.

(D) Did the primary judge fail to apply the statutory presumption for contributory negligence?

At [286] of the primary judgment, his Honour found that contributory negligence did not arise for two reasons:

… (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.

The College argued that the primary judge’s finding did not properly apply the presumption of contributory negligence in s 95(1) of the Wrongs Act, which arises where a plaintiff was at least 16 years old and intoxicated at the time of “the accident”. The section is in the following terms:

(1) Contributory negligence must be presumed if— (a) the injured person was— (i) at least 16 years old at the time of the accident; and (ii) intoxicated at the time of the accident; and (b) the defendant claims contributory negligence. (2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that— (a) the intoxication did not contribute to the accident; or (b) the intoxication was not self-induced. (3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury.

The College further complained that the primary judge also erred in failing to deal with the matters necessary to rebut the presumption under s 95(2) of the Wrongs Act. The presumption is rebuttable only if a plaintiff established that the intoxication did not contribute to the accident or was not self-induced: s 95(2) of the Wrongs Act.
The College argued that it should have been held that contributory negligence was established, and that the damages recoverable by SMA ought to have been reduced to the extent that is just having regard to her share of responsibility for the damage: s 102(1)(b) of the Wrongs Act.
Again, the success of the College in relation to the causation aspect of the case concerning the direction to leave the College means that it is unnecessary to address contributory negligence on that limb of the case.
What is left is whether contributory negligence has any role to play in relation to the College’s handling of SMA’s complaint. The College argued that it does, based on its interpretation of the word “accident” in s 95. The Dictionary of the Wrongs Act defines an “accident” to mean the incident out of which the personal injury arises.
The College submitted that the “accident” was the assault, and that the SMA’s psychiatric injury arose out of that accident, including any injury from the subsequent management of her complaint. At the time of the encounter, the SMA was undoubtedly intoxicated, and the intoxication was the reason the encounter was deemed an assault. As such, the presumption in s 95 of the Wrongs Act applies to both breaches.
Such a construction appears to be the opposite of what was put at first instance, as the primary judge recorded at [284] that the College had accepted no contributory negligence would arise from a finding that the complaint had been negligently dealt with.
Putting to one side the College’s reversal of its position on appeal, we do not accept that is the proper construction of the provision. As submitted by SMA, the incident is the relevant breach and, in this case, there were two separate breaches pleaded: the direction to leave, and the mismanagement of the complaint. They were separate in time and independent of each other, even though the subject matter of the complaint was related to earlier conduct. There were separate risks of harm arising, even though each was psychiatric injury in SMA’s case. In respect of the second breach, SMA’s intoxication when the assault occurred did not contribute to “the incident” out of which the harm arose.
For these reasons, the ground of appeal, insofar as it relates to the handling of the complaint, is not made out. (E) Damages
In light of the above findings, consideration of the damages aspect of the appeal is on the basis of the second breach established. The complaints of the College addressed the economic loss sum awarded, and the decision to award aggravated damages, including the quantum of that sum. They will be addressed in turn.

Did the primary judge err with respect to the quantum of damages to be awarded for economic loss?

The award of $287,701.57 to the respondent for past and future economic loss comprised the following:

(a) Past economic loss at $1,311.52 net per week for 1 year amounting to $68,199.04; and

(b) Future economic loss at $1,311.52 net per week for four years, less 15% for vicissitudes (3% tables), amounting to $219,502.53.

The primary judge’s reasoning on this aspect of damages is set out at [296]-[312] of the primary judgment. The basis of the award for economic loss was a “cushion”: primary judgment at [305]. This included superannuation, as that was how the parties had presented the case: primary judgment at [296].
His Honour relied on expert medical evidence in determining that the College’s negligence caused economic loss to SMA stating at [301]-[312] (emphasis added):
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: [SMA’s] condition had no impact on her employment. I explained the reasons in my report of 7 May 2020, p. 6. [SMA] 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. [SMA’s] choice of degree suggested she was already ambivalent between working in the financial sector or in a science-based occupation. 302. I think there is some substance in Dr Parmegiani’s observation that the change in [SMA’s] intended career should not be entirely attributed to the defendant’s negligence. I agree that [SMA] did not seem to have a set view on her occupation both when commencing university and as her time at the ANU progressed. 303. However, as I have noted above, Dr Parmegiani accepted that his views were subject to change in light of the information that [SMA’s] Distinction average had been obtained with the assistance of special consideration given by the ANU. 304. 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. [SMA] stopped working against that background. [SMA] 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. [SMA] 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. 305. 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 [SMA] will have and which have affected her in her employment so far. 306. It is difficult to know what [SMA] would have earned but for the defendant’s negligence. It is equally difficult to predict the future, including the [SMA’s] likely success in medicine and the level of earnings that she will attract. 307. An approach that I think is fair to both parties is to proceed on the basis that [SMA’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 [SMA] is an impressive person who will no doubt do her very best to achieve success in the future. 308. As to the five years of delay, [SMA] 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. 309. [SMA] 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. 310. I think average weekly earnings should be the basis for the calculation of economic loss. Although the [SMA] 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. 311. Accordingly I will assess past economic loss at $68,199.04. 312. On the 3% tables, 4 years at $1,311.52 per week, less 15% for vicissitudes, is $219,502.53.

(a) SMA found work stressful, and was assisted in her academic achievement by special consideration measures. But for her injuries, she would have done (even) better at university and been able to get a degree in a different field. (b) The medical evidence as to SMA’s ongoing chronicity of symptoms and continuing mental suffering was also relevant to an award of economic loss damages.

(c) SMA had almost 5 years of distress combined with abandonment of her hopes overlaid with a substituted ambition which may not be realisable.

SMA submitted that the primary judge carefully considered and balanced the competing evidence as to the effect of the injuries his Honour had accepted that she suffered as a consequence of the College’s negligence. That balance was that the change in SMA’s career was not entirely attributable to the College’s negligence but a delay in 5 years was nevertheless an appropriate cushion that was “fair to both parties”: primary judgment at [307].
Before an award of damages for economic loss may be made, SMA had to prove that the breach of duty caused either a loss of earnings or a loss of earning capacity. It must be remembered that the primary judge had included a significant component for general damages on the basis of pain and suffering, which included the 5 years of distress suffered by SMA from the consequences of the negligence.
It is clear from what was said at [306] of the primary judgment that the primary judge considered the counterfactual. However, his Honour did not then set out the findings on which his conclusion that a delay in any career of five years was based, which in turn formed the assessment of the past loss of earnings or earning capacity, and future loss of earning capacity.
Dealing with the finding in respect of past economic loss, SMA stopped working at her place of employment, Dixons, in part because of a choice to pursue a different career. The reasons given by SMA for changing careers included that she found the work boring and repetitive, and she wanted to avoid certain students from the College that also worked there: see [85] and [87] of the primary judgment.
SMA had arrived at ANU in 2014 to pursue a combined degree in Commerce and Law. She graduated from ANU in 2018 with a combined degree in Commerce and Science and a grade point average of 6.154. She was a full-time student throughout that time and there is nothing to suggest that completion of her degree was delayed by the breaches of duty found by the primary judge.
Accordingly, on the counterfactual, had the said breaches not occurred, the earliest SMA would have been able to commence full time work was the time that she did – upon completion of her degree. At that time, absent any negligence by the College:

(1) SMA would have either taken employment in a different job related to her degree and been happier with that choice than she was at Dixons, resulting in a continuation of that employment; or

(2) SMA would have chosen to work at Dixons where she had previously worked as an intern but without the emotional overlay and lack of confidence attributable to the negligence, resulting in a continuation of that employment; or

(3) SMA would still have chosen to sit the Graduate Medical School Admissions Test (GAMSAT) exams.

The evidence did not support a finding that SMA could not do any work at all for 5 years. Accordingly, it may be inferred that the primary judge was satisfied the 5-year delay resulting in an equivalent loss of earnings was a result of undertaking further study in order to change careers. However, we have difficulty in arriving at the conclusion that, but for the College’s material breach of duty, this would not have occurred.
The primary judge found at [302] that:

(1) There was some substance to the psychiatric evidence that the change in SMA’s career should not be entirely attributed to the College’s negligence; and

(2) SMA did not seem to have a set view on her occupation both when commencing university and as her time at the ANU progressed.

It can be inferred from the evidence that SMA is both smart and ambitious. SMA had achieved an ATAR of 98.2, and a graduate grade point average of 6.154 (primary judgment at [1] and [82]). Even taking into account the special consideration that she was afforded to achieve that average, her academic record is strong and indeed the primary judge’s unchallenged finding (at [307] of the primary judgment) was that she was an impressive person who would no doubt do her very best to achieve success.
Further, while at university, she had secured and undertaken a student exchange, and there was evidence that SMA had been active in taking on leadership positions at the College Residents’ Association. She had done well socially and in sport. We note the medical opinion (referred to in the primary judgment at [292]) that SMA’s involvement in these activities could have been a diversion for her to prevent her from ruminating on her condition, but that opinion appeared to be more postulation rather than having a medical basis. On the whole of the evidence, SMA had what might be described as a well-rounded and commendable university experience.
It is one thing for a lack of confidence and a feeling of aimlessness to cause someone to change a place of employment, but quite another to cause a change in career, let alone one as demanding as the kind typically resulting from obtaining a degree in medicine, even accepting that a medical degree might not necessarily dictate that SMA enter medical practice (consistent with the primary judge’s observation at [290] of the possibility of SMA entering a medically related occupation). We are not persuaded that SMA’s choice to undertake further study rather than pursue any career in finance is properly attributable to the breach established. The other matters named by SMA as reasons for her leaving Dixons point to the nature of the work not being what SMA wanted to do (as opposed to her psychiatric state) being the reason for undertaking a different career path that was equally if not more challenging than which she was undertaking at the time.
SMA had commenced her tertiary studies with a degree in Advanced Science at the UNSW. While she transferred to a combined degree in Law and Commerce at ANU, she had dropped the law subjects before the incident the subject of this litigation occurred. Her transfer to a science/commerce degree and choice of subjects at the ANU further assists in considering the counterfactual. In 2018, SMA undertook Human Skeletal Analysis, Human Physiology, Advances in Medical and Plant Biochemistry and Cellular Neuroscience, achieving high distinctions in each subject. They are subjects that plainly lay a strong foundation for studying graduate medicine.
We therefore accept the College’s argument that on the evidence, SMA’s decision to sit the GAMSAT exams with a view to undertaking further study was a product of her underlying intelligence and ambition, combined ultimately with her dissatisfaction with a career related to the financial industry. The finding that ought to have been made is that the decision to change careers was not itself caused by any conduct of the College.

(a) An award of damages for future economic loss (including by way of a buffer) does not compensate the claimant for lost income; rather, it compensates the claimant for diminished capacity to earn income (the lost chance to earn): [Singh v Cooper [2016] ACTCA 55] (Singh) at [65], Allianz per Basten JA at [24]. (b) Any award for future economic loss involves a discretionary judgment that takes into account a range of real possibilities and does not depend on the proof of probabilities: per Heydon JA in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536, cited in Allianz by Basten JA at [25] and [27]. (c) Income earned prior to the accident may be the best evidence of pre-accident earning capacity. Post-accident income may be (but often is not) a good indicator of current capacity. Usually, it is necessary to consider the extent to which pre-accident and post-accident capacity might have been and may be expected to vary in the future: Allianz per Basten JA at [24]. (d) Commonly, a mathematical assessment of loss of earning capacity is reduced by 15 per cent for “vicissitudes” for the fact that, regardless of the defendant’s negligence, the claimant may have suffered a diminution in earning capacity during their working life: Allianz per Basten JA at [29]. (e) Where the evidence enables a mathematical approach to the assessment of future economic loss, such an approach is preferable: Singh at [61], Allianz per McColl JA at [9] and Macfarlan JA at [72]. (f) However, the reduction in earning capacity may be difficult to determine other than by a broad approach: Allianz per McColl JA at [6]–[9]. It may be “so fraught with uncertainty that the preferred course is to award a lump sum as a buffer”, rather than engaging in an artificial exercise of reducing a precise figure by a precise percentage: Allianz per Basten JA at [30]. (g) The assessment of a buffer may be somewhat intuitive: Singh at [61]. However, considerations informing the outcome should be articulated: Singh at [77].

In Oliver v Roberts, the claimant was a university student who had suffered a traumatic brain injury as a first-year student. The Court of Appeal (Murrell CJ, Loukas-Karlsson and Charlesworth JJ) there faced a similar difficulty, where the assessment of a loss of earning capacity was “not readily amenable to mathematical calculation” (at [43]). Because the appellant in that case was a student at the time of the accident, there was no reliable indicator of his pre-accident earning capacity. In that circumstance, the Court held (at [43]) that a buffer for future economic loss was “not inappropriate”.
Similarly in Ward v Allies and Morrison Architects [2012] EWCA Civ 1287 CA, the claimant had recently completed a university degree, but her career pattern could not be ascertained because there were “too many imponderables” (see [25]). Accepting there are differences between this jurisdiction and the treatment of damages in the United Kingdom, the Court of Appeal of England and Wales nevertheless similarly held that in those circumstances, it was appropriate to apply a broad-brush or lump sum approach.
The damages with which the Court is here concerned are for loss of earning capacity. To accept that SMA made certain life decisions unrelated to the College’s negligence which had an impact on her earnings does not equate to a finding that her earning capacity was unaffected. Although the decision to change careers was not properly attributable to the College’s conduct, SMA’s psychiatric state was relevant to her ability to undertake such further study, and at the time of the hearing, it was unknown what impact that would have on SMA’s ability to complete the course in the usual way, or at all.
Further, the primary judge accepted the medical evidence (which was set out at [239] of the primary judgment) that the College’s manner of dealing with SMA’s complaint was four times more potent in causing SMA’s psychiatric state, with SMA’s treatment by the College being the “current primary factor in her condition”.
Accordingly, SMA has established a causal connection sounding in economic loss. Given the difficulties of assessing damages for loss of earning capacity when SMA’s career pattern was not certain, the same approach of awarding a lump sum as a buffer for both past and future economic loss is appropriate.
In respect of past economic loss, the primary judge used average weekly earnings in NSW (as they were in May 2019) of $1311.52 net to assess past economic loss in the figure of $68,199.04. Those figures remain an appropriate context in which to assess the buffer that properly compensates an uncertain loss, but the Court also has before it the actual figures (supplied from SMA’s tax returns tax returns) reflecting income earned when SMA was a full-time student.
In recognition of the finding above that SMA’s decision to undertake further study would have reduced her ability to earn and that such reduction in capacity was not attributable the College’s conduct, a sum of $35,000 for past economic loss is what we consider to be the appropriate buffer in substitution for the previous amount awarded. Such sum still compensates SMA for some loss of earning capacity which was attributable to the College’s breach, along with superannuation and interest.

(a) SMA’s decision to attempt to undertake a graduate medical degree was unrelated to the College’s material breach. As with the past economic loss, it has a separate impact in reducing SMA’s future earning capacity for the period during which she is likely to be completing further studies. (b) Again however, the ongoing psychiatric impact for SMA (as found on the evidence by the primary judge) has the potential to manifest in delays in study or completion of a postgraduate medical degree, as well as in her ability to secure employment, and to earn while studying. SMA also required assistance to complete her undergraduate degrees, with such assistance being directly attributable to the College’s conduct.

(c) The likely impact on her capacity to earn, whether that be through delays in completing her studies or undertaking paid employment was likely to continue in the short to medium term, for a period of up to 4 years.

(d) SMA is nevertheless capable of doing some work which will earn an income and her future earning capacity in the longer term will be equal to, if not more than, what her capacity was before the breach occurred.

(e) A 15% reduction for vicissitudes, which was made by the primary judge and remains an appropriate consideration on appeal.

(f) Due to the way the parties approached the issue at first instance, any cushion should also have regard to the accompanying loss of superannuation (as found by the primary judge at [296]).

The total cushion to be awarded to compensate SMA for economic loss she has or will suffer is therefore $135,000.

Should aggravated and exemplary damages have been awarded, and in the sum awarded by the primary judge?

Aggravated damages are given to compensate a plaintiff in cases where the harm done to them was aggravated by the manner in which the act was done, resulting in an injury to the plaintiff’s feelings which may be intangible: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 149 (Uren); Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8 (Lamb); New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 (Ibbett) at [31].
Exemplary damages, on the other hand, are intended to punish the defendant: Lamb at 8; Uren at 149.
The primary judge awarded $30,000 for aggravated and exemplary damages. His Honour did so having set out the applicable principles. The applicable principles were not disputed on appeal.
The College took issue with the primary judge’s reasoning and findings at [316]-[320]. His Honour stated at [316]:

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.

The College submitted that aggravated damages does not have the same basis as exemplary damages and that this error factored into how his Honour then determined what should have been allowed. At [317], the primary judge referred to Ibbett at [31], where the High Court said:

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 primary judge went on (at [318]) to refer to the particular point in Ibbett at [35] that:

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.

His Honour then found at [319]-[320]:
I think aggravated and exemplary damages should be awarded here. The [College’s] assumption of a dual, if not more than dual, role in dealing with [SMA’s] complaint was I think a contumelious disregard of her entitlement to fair treatment. My view is enforced by my conclusion that the [College’s] approach was influenced by its desire to protect its reputation… at the expense of [SMA’s] welfare. In doing so the [College’s] conduct also accentuated the suffering of [SMA]. 320. 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.
The College complained that it was not open to the primary judge to find that the appellant (more particularly Mr Johnston) acted to protect the College’s reputation at the expense of SMA. As no error was established with regard to that finding properly understood, for reasons set out at [62] above, the basis for this challenge falls away.
There is some force in the College’s argument as to what was said at [316], but quite apart from the primary judge’s finding, we consider that this was a case where it was appropriate to award at least aggravated damages. The College’s treatment of SMA in the handling of her complaint was not merely conduct which fell short of the standard of care owed in the sense that it was inept; it was conduct that humiliated SMA and the dual role performed by Mr Johnston created an unnecessary power imbalance that exacerbated those circumstances. In that way, we respectfully concur with the primary judge’s finding that the College’s conduct accentuated the suffering of the SMA.
Although there was a separate ground of appeal in relation to the quantum of the sum awarded, the College did not submit that the sum of $30,000 itself was an inappropriate figure, such as being outside any particular range. Although it may have been on the higher side or perhaps close to the top of what might separately be awarded for aggravated damages, without more, we are not persuaded it was excessive.

Cross Appeal

(a) Did the primary judge err with respect to the award of general damages?

The primary judge’s finding on general damages is at [295] of the primary judgment, with the reasons for such finding set out in the preceding paragraphs at [288]-[294], as follows:
Starting with general damages, [SMA]suggested a figure of “$225,000+”. I assume the figure was expressed in this way to indicate that it was the least [SMA] should be awarded. [SMA’s] figure was also expressed to include aggravated damages. 289. I will deal with aggravated and exemplary damages separately. The [College] suggested $75,000 for general damages, which I think is more realistic, although not quite sufficient. 290. [SMA] 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 [SMA] 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. 291. The [College] submitted that my assessment of the extent of [SMA’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. 292. Dr Parmegiani said that [SMA’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. 293. [SMA] 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. 294. It is also important to recognise that in all probability [SMA], but for her injury, would have achieved a better mark at university and also been able to complete a degree in a different field. 295. I think general damages should be assessed at $90,000. Interest on half of this amount over five years at 2% is $4,500.
It is manifest from how the primary judge calculated the interest at [295] that his Honour allocated 50% of that sum to the past (upon which interest is awarded) and 50% to the future. The purpose of the interest component is to compensate the plaintiff from being kept out of her money during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663.

An appellate court should not interfere with an assessment of general damages for personal injury simply because it would have awarded a different figure if it had tried the case [at] first instance. Where an assessment is made and it has not been shown that the trial judge acted on any error of [principle] or misapprehension of the facts the appellate court will only interfere if it is satisfied that the charge made a “wholly erroneous estimate” of the damages suffered: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369; Sutherland Shire Council v Major [2015] NSWCA 243 at [40]. The assessment of general damages is neither scientific nor normative: Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 at [52]. It relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30]; Baxter v Insurance Australia Ltd [2015] ACTSC 273 at [32].

The College drew the Court’s attention to two other cases that reinforce the point, being Khan v Polyzois [2006] NSWCA 59 at [24], and Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11].
On the Cross-Appeal, SMA made no submission that the primary judge misapprehended the facts. The argument was one of inadequacy, in that the award was “not within the range of damages” applicable in SMA’s circumstances as found by the primary judge.
SMA emphasised that s 99 of the Wrongs Act provides that in assessing the quantum of an award of general damages, the Court may refer to earlier decisions of “other courts”. The words of that section founded the submission that awards for general damages in the ACT were significantly lower than those in other jurisdictions (specifically, in NSW and Victoria), and that this case represented an opportunity to bring the awards for general damages for “cases involving sexual assault and PTSD” into line with those jurisdictions.
A table of cases said to be comparable, or at least relevant to the argument, was provided. The cases are discussed in detail below, but it is useful at this point to know that the cases in the Territory point to a range of general damages of between $90,000 and $100,000. The cases in New South Wales relied upon for awards of general damages ranged between $275,000 and $400,000. The cases in Victoria relied upon by SMA included a general damages component ranging from $215,000 to $300,000.
Before dealing with SMA’s argument on the cross-appeal, it is important to first state that consideration has been given to whether the finding earlier in these reasons as to a lack of causation in respect of the first limb of SMA’s claim had any impact on the sum to be awarded for general damages. However, there was no aspect of the general damages that warranted being carved out. This is not a case, for example, where the plaintiff was experiencing flash backs from the night itself which were affecting her ability to function or socialise. The College’s breach in handling SMA’s complaint was found to be four times more significant in causing the injuries suffered by her. Accordingly, the general damages to be awarded for her pain and suffering (non-economic loss) remain unaffected by that finding.
Turning then, to consider the substance of SMA’s complaints, there are three reasons why SMA’s challenge cannot succeed:

(1) First, the statutory regime in the ACT is different from that which exists in NSW and Victoria, and that has consequences for any range established in this jurisdiction as opposed to other jurisdictions.

(2) Second, the cases relied upon to support a higher range were not cases that bore any resemblance to the plaintiff’s circumstances in the present case.

(3) Third, even if a higher range had been established on authorities in jurisdictions that were comparable to the circumstances of SMA here, that does not of itself give rise to a conclusion that the primary judge’s award was a “wholly erroneous estimate” of the damages suffered.

As to the first of those reasons, and as submitted by the College, the Wrongs Act in the Territory does not have any minimum threshold of damages for non-economic loss that must be met before damages become available. That statutory position is to be contrasted with the position in both NSW and Victoria. In NSW, ss 16 and 17 of the Civil Liability Act 2002 (NSW) require the Court to have regard to a pre-determined maximum amount, providing that no such damages are available unless the severity of the non-economic loss is at least 15% of a most extreme case (see s 16(1) of that statute). The statutory equivalent in Victoria is s 28LE of the Wrongs Act 1958 (Vic). It restricts the availability of non-economic loss damages to those cases in which the plaintiff has suffered “significant injury” to be determined in accordance with a further statutory provision (s 28LF), with the maximum amount of damages fixed (s 28G).
Because a different statutory regime applies in NSW and Victoria, cases at the lower end of the spectrum of severity in terms of general damages awards involving PTSD and sexual assault simply do not feature in the authorities in those states. While consistency across jurisdictions in the application of common law principles to the tort of negligence is plainly a desirable outcome, where legislatures have intervened in different ways, that statutory intervention cannot be ignored. It is neither a proper nor fair comparison to draw on higher ranges in other states to argue that the Territory is out of step with more significant compensation being awarded to PTSD sufferers across the Territory’s northern and southern borders.
As to the second of those reasons, even if it were assumed that the statutory regimes for the awarding of general damages were either similar to that in the Territory or that, contrary to the above, any differences in the statutory regimes were not significant, the specific cases relied upon by SMA to support a higher amount for general damages do not substantiate the argument. What the cases in other jurisdictions show is that those plaintiffs whose pain and suffering was significantly greater than that of SMA, both in the past and in the future, were awarded greater compensation in general damages.
Starting with the cases relied upon by SMA in the NSW jurisdiction, they were as follows: “B” v Reineker [2015] NSWSC 949 (“B” v Reineker) (general damages of $350,000 awarded), MC v Morris [2019] NSWSC 1326 (MC v Morris) (general damages of $400,000 awarded) and Ms P v Mr D [2020] NSWSC 224 (general damages of $275,000 awarded) (Ms P v Mr D). It is noted that in the latter two cases, those amounts included unspecified awards of aggravated damages and it is important to remember that the primary judge made a separate award for aggravated damages in relation to SMA.
As the College submitted, “B” v Reineker was a case where the defendant was found to have sexually assaulted the plaintiff numerous times, beginning when the plaintiff was thirteen years old and continuing until she was twenty-one. The abuse began when the defendant was the plaintiff’s teacher when she was at high school. It was held that the plaintiff had been groomed by the teacher in abuse of his position of trust and authority. The plaintiff became pregnant with the defendant’s child on two occasions. Because of the prolonged abuse, the plaintiff suffered from PTSD and a major depressive order. The plaintiff also suffered from anxiety, flashbacks, anger, interrupted sleep and nightmares. She had been deprived of a normal adolescence and would suffer by reason of the defendant’s conduct for the rest of her life. $350,000 was awarded in general damages, with $200,000 allocated to the past and $150,000 allocated to the future.

Case General damages component awarded

Erlich v Leifer [2015] VSC 499 $300,000

FFF v BBB [2017] VSCA 156 $215,000

Hand v Morris [2017] VSC 437 $260,000

Gann v Hosny [2017] VSCA 303 $300,000 (Gann v Hosny)

Waks v Cyprys & Ors [2020] VSC 44 $200,000

Perez v Reynolds [2020] VSC 537 $265,000

As with the cases relied upon in the NSW jurisdiction, and apart from the case of Gann v Hosny (dealt with separately below), the above-named authorities are all cases where there was ongoing abuse that had a serious and significant impact, which was found to endure for each plaintiff’s lifetime. The circumstances in each case involved childhood sexual abuse suffered by each plaintiff. They were each abused over a period of time, and had subsequently suffered PTSD or psychiatric injury, depression and anxiety.
The impacts described in the Victorian cases relied upon included ongoing anger, guilt or disgust, anxiety, and (in most cases) flashbacks, being intrusive images, re-experiencing the abuse, sometimes daily. The plaintiffs also had subsequent behavioural problems from a young age, including abuse of alcohol and illicit drugs. The Court findings in each of the above cases included references to a significant “ongoing” or “life-long” impact.
The case of Gann v Hosny was an appeal which concerned an allegation of fraud by Mr Gann against Mr Hosny in relation to a claim that had previously been determined. The appeal sought to set aside the earlier judgment. It is unrelated to the point under consideration here. It appears that SMA intended to rely upon the earlier first instance decision of Hosny v Victoria Racing Club & Anor [2012] VCC 661, which was later the subject of the application to set it aside, heard by the Victorian Court of Appeal. In that case, Mr Hosny was driving a shuttle bus for the Victoria Racing Club. During the course of performing his duties he was physically assaulted by a patron at the Club who had attempted to board the shuttle bus when it was full and was asked by Mr Hosny to disembark. That resulted in an assault that was entirely unprovided, with Mr Hosny receiving multiple punches (with a clenched fist) to the head and being struck in the face.
The assault resulted in the plaintiff suffering “severe” and “profound” PTSD with anxiety and depression which rendered him incapable of working. The assault caused a dramatic change in the plaintiff’s personality, his marriage broke up, he became homeless, and had an inability to cope with day-to-day activities. He was constantly fearful, waking with flashbacks. He required substantial medication and regular and intensive psychological support. The trial judge accepted that the plaintiff would never have a capacity to return to work and would suffer anxiety, stress and panic attacks for the foreseeable future. The impact of the assault upon the plaintiff was described by the trial judge as “devastating”.
The Court generally eschews a detailed comparison of symptoms between plaintiffs, as each case must be decided on its own facts. In part, that is because of the caution expressed in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 at [11] not to be “overborne by what other minds have judged right and proper for other situations”.

(b) Did the primary judge err with respect to costs?

Judgments as to costs are matters for the Court’s discretion and again, error of the kind expressed in House v The King at 505 must be established on appeal.
In the present case, there was a question of whether the primary judge erred in principle. However, this ground also falls away in light of the reasoning with respect to the quantum of damages awarded for economic loss, combined with the fact that SMA has not established error in relation to the quantum of the award for general damages.
The offer of compromise which founded an order for costs on a solicitor and client basis was $400,000 plus costs. The other findings on this appeal mean that quantum has been reduced below that amount. Accordingly, there is no basis for r 1010 of the Court Procedure Rules 2006 (ACT) to operate in the first place, which means that it is not necessary for the Court to determine whether the discretion in the application of that rule miscarried.

Conclusion and Orders

The College has succeeded in part in relation to its appeal of the orders made by the primary judge, which has a flow on effect for the quantum to be awarded to SMA, as well as the separate costs orders in the court at first instance and the costs of the cross-appeal, part of which did not need to be determined.
Substituting the economic loss components as found on appeal for those awarded by the primary judge, the total sum to be awarded 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 $35,000.00

Future economic loss $100,000.00

Exemplary and aggravated damages $30,000.00

Total $267,500.00

Costs

Although it was not entirely successful on appeal, the College was successful on two issues which were not clearly severable and had the effect of significantly reducing the damages to be awarded. That result may be viewed as substantial success. Accordingly, the College is entitled to its costs on appeal.
However, SMA has still succeeded on her claim and is entitled to the costs of the primary proceedings on the ordinary basis. She did not succeed on the cross-appeal, but it was not necessary to determine one of the two issues, and the cross-appeal did not otherwise substantially lengthen the proceedings. Taking those matters into account, the just outcome is to simply order the parties to pay their own costs of the cross-appeal.
The above result may have different costs consequences from those already ventilated before the primary judge, in that the parties may wish to raise different offers of settlement either at first instance or in the course of the appeal proceedings. To take account of that possibility, it is appropriate to grant liberty to the parties to apply in respect of the costs orders both at first instance and on appeal. Although any subsequent application to vary costs orders of the primary proceeding might equally have been dealt with by the primary judge, in the interests of the efficient and final disposition of the proceedings, we consider this to be the preferable course.

Orders

The Orders are:

(1) The appeal is allowed in part.

(2) Order 1 of the orders made by Elkaim J on 7 August 2020 is set aside and in lieu thereof, the following order is made: (i) Judgment is entered for the plaintiff in the sum of $267,500.

(3) Order (b)(i) of the orders made on 4 September 2020 is set aside and in lieu thereof, the following order is made:

(i) The defendant is to pay the plaintiff’s costs of the proceedings.

(4) The respondent is to pay the appellant’s costs of the appeal.

(5) The cross-appeal is dismissed with each party to pay their own costs.

(6) Liberty is granted to the parties to apply to vary any of the above costs orders within 14 days.

I certify that the preceding two hundred and thirty-nine [239] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate: Zoe Saunders

Date: 29 June 2022

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