How 'progressive' courts are ignoring individual responsibility

The Australian Capital Territory (ACT) is regarded as one of the most "progressive" legal jurisdictions in the country. Related to this, the public's eyebrows are regularly being raised in respect of issues related to the Territory's justice system. Some other jurisdictions almost certainly are subject to similar happenings.

Eyebrows went up again recently following a controversial (civil) damages case in respect of the alleged rape of a university student in 2015, where personal responsibility and third party duty-of-care were key issues. The facts of this thought-provoking case and the circumstances surrounding it are outlined below, based on the ACT Supreme Court judgement, and on a report in the Canberra Times.

The plaintiff alleged that she was sexually assaulted by a Mr NT outside the Mooseheads Bar and Nightclub in central Canberra on the night of 6 August 2015 (or in the early hours of the following morning). The plaintiff had no memory of the assault.

About ten days after the event, a friend advised the plaintiff that she (the friend) had heard that NT had sexual intercourse with the plaintiff in an alleyway adjacent to the nightclub. The plaintiff spoke to NT by telephone on 19 August 2015, and asked him whether or not sexual intercourse had taken place between them. He replied that it had. NT apparently recanted on his admission sometime later and now denies the event ever took place. Meanwhile, the plaintiff had recorded the mobile phone conversation, and the Court accepted the admissibility of this corroborating evidence.

The alleged rape followed an evening of "pub golf". This event was organised by an Australian National University (ANU) college residents' association, and involved student leaders taping bottles of alcohol to the hands of participants, who were required to drink a certain amount to "make par". The event began at John XXIII College, and by 9PM students were "drunk to the point of vomiting, lying in the college's hallways, and an ambulance also had been called". The college maintained that it had banned "pub golf" before the incident but the event had gone ahead anyway. The college subsequently directed "unruly" participants to leave its premises.

For whatever reason, the alleged rape seemingly was never the subject of criminal prosecution. NT himself also does not seem to have been subject to any civil action, and was not called to give evidence at the civil trial. Instead the woman sued John XXIII College and its residents' association. An undisclosed settlement was made with the residents' association on the second day of the hearing, while (following completion of the trial) the College was found in breach of its duty of care and ordered to pay damages of $420,201.57 plus costs to the plaintiff.

The college said it would seek a stay on the orders of the court, and would lodge an appeal.

There is no dispute that victims of rape can suffer years of anguish following a sexual assault. In this case Elkeim J found that the plaintiff had been a high achieving young woman, who now (despite having no memory of the event) had suffered "almost five years of distress combined with an abandonment of her hopes".

The question is who is to be held responsible for her fate?

In determining civil liability, it seems to me that, first and foremost, the alleged perpetrator ought to be first in the firing line for any damages. It seems very odd that the alleged rapist was not included as a defendant in the action or that his responsibility apparently did not mitigate the liability of the two defendants. (Maybe he had no means but there is no public information on this matter.) I would also have thought that the college residents' association, which organised the event, had greater culpability that the college itself, which seems to have attempted to break the event up. The plaintiff herself played some role in her fate but the court seemingly did not find her in any way contributory.

Key issues that affected the outcome of the case included the duty of care owed by John XXIII College and its residents' association to the plaintiff. The issue of consent in rape cases is also relevant. The newspaper reporter had asked counsel for the college whether or not the college disputed the occurrence of the assault. Counsel said that the college did dispute the assault.

According to Elkeim J, "in the very simplest terms the plaintiff says that the college's tolerance of events like Pub Golf and the associated overconsumption of alcohol led to the sexual assault upon her. Secondly, the plaintiff says that the college inappropriately dealt with her complaint about the assault". Without studying detailed evidence it is not possible for an outsider to fully assess the college's behaviour.