ANU's John XXIII College partially successful in appeal against decision to award rape victim $420k

On Wednesday, the ACT Court of Appeal set aside a decision to award the woman more than $420,000 in damages and ordered a $267,500 payout instead.

The reduction comes nearly two years after an ACT Supreme Court civil trial ended with Justice Michael Elkaim finding John XXIII College had breached its duty of care to a former student before and after she was raped.

The plaintiff, who cannot be named, lived at the college commonly referred to as "John's" while she was studying law and commerce at the ANU.

In August 2015, she attended a hazing ritual known as "pub golf". This involved student leaders from the college taping bottles of alcohol to the hands of participants who would have to drink a certain amount to make par.

The unsanctioned event began at John's and continued at different "holes" in Civic after students, who were making a mess at the college, were ordered to leave.

Justice Elkaim found "sending unruly students out into the night" represented a breach of the college's duty of care to the plaintiff because staff would have known participating students were already intoxicated and likely to get even more drunk off campus.

The drinking spree ultimately ended with the intoxicated plaintiff being raped by a fellow John's resident in an alleyway beside Civic nightclub Mooseheads.

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The young woman only learned what had happened to her 10 days later, when a friend told her the perpetrator had been heard, as Justice Elkaim put it, "joking about his achievement".

The judge also determined that the college had mishandled the woman's subsequent rape complaint in a further breach of its duty of care to her.

Justice Elkaim ordered the college in August 2020 to pay the rape victim $420,201.57 in damages, with more than half that amount relating to compensation for past and future economic loss.

He delivered a scathing assessment of John's in the process, saying what was "supposed to be a haven of Catholic values" had instead "made a virtue of the consumption of alcohol".

The college disputed its liability, the quantum of damages and a costs order during a two-day Court of Appeal hearing last November, citing 15 grounds.

After nearly eight months considering the case, three appeal judges found on Wednesday that Justice Elkaim had made two errors in his judgment.

The first was his failure to address the fact students participating in "pub golf" had planned, even before being directed to leave the college, to venture to "holes" at the Uni Pub and Mooseheads to continue drinking.

Chief Justice Helen Murrell, Justice Chrissa Loukas-Karlsson and Associate Justice Verity McWilliam therefore found the order to leave had, at most, "brought forward" a departure that was going to occur in any event.

The second related to Justice Elkaim's assessment of damages for past and future economic loss, which he calculated at more than $287,000.

The appeal judges decided the woman was in fact entitled to less than half that amount, finding $135,000 was the correct figure for that part of the payout.

The trio dismissed the college's appeal against the finding it had mishandled the rape victim's post-incident complaint, saying its failure in this regard had been a significant cause of psychiatric injuries suffered by the woman.

"The result is that [the rape victim] still succeeds in the action she brought in negligence, but the damages awarded have been reduced from the $420,201.57 sum awarded by [Justice Elkaim] to $267,500," the appeal court said.

Shine Lawyers, which represented the woman, said the court's decision to dismiss part of the college's appeal had put universities around the country "on notice".

"Our client's bravery has been nothing short of inspirational throughout this process," Leanne McDonald, the firm's head of abuse law, said.

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

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

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