In brief - As we return to pubs and clubs, eating, drinking and generally enjoying ourselves, it is important for those who may hold a duty of care - whether that be schools, universities, or residential colleges - for some social situations to be aware of their obligations.
There's a history of employers being found to have a duty of care in social situations for risks, including sexual harassment and injury.
In the recent appeal case of John XXIII College v SMA  ACTCA 32, a residential college has been found to be liable for the assault of a student. This case is unlikely to be an isolated claim. The lessons from the case are clear and should be understood and acted on by boarding schools, residential colleges and work-away accommodation/FIFO accommodation providers across Australia.
Court of Appeal holds John XXIII College breached its duty of care, awards student damages
In 2015, SMA (her name was supressed) was a resident at John XXIII College in Canberra.
SMA, with other members of the College, attended 'pub golf'. During the event a group of students attended nine separate venues, or 'holes', the first being the residential college and the last being Mooseheads nightclub.
During the event SMA became intoxicated and was sexually assaulted by another College resident outside Mooseheads. SMA had no independent memory of the assault. Ten days later SMA was told of the event by another student at the College.
SMA claimed that the College's duty of care to her was breached in three ways:
By permitting the pub golf event to proceed;
By directing the students to leave the College on the night of 6 August 2015; and
In the inappropriate management of SMA’s subsequent complaint.
The Court held on appeal that the College had breached its duty of care and SMA was awarded $267,000.
Australian Human Rights Commission report into sexual assault and sexual harassment at universities highlights key risk areas to be addressed
The Australian Human Rights Commission (AHRC) conducted an independent review of residential colleges at the University of New England in May 2019. It found that approximately one-third of residents involved in the survey disclosed that they had experienced sexual harassment since residing at their college.
The report found that university and college responses to complaints of harassment and assault were poor. As concerningly, students didn't come forward to report their experiences.
In addition, the AHRC conducted the National University Student Survey on sexual assault and sexual harassment. Based on 2015/16 data and qualitative submissions received between August and December 2016, it found 26% of students had experienced sexual harassment at least once in 2016 and nearly 7% had experienced sexual assault in 2015/2016 in a university setting.
A systematic review was recommended into policy and responses to these issues in university settings along with the development of strategies to address:
attitudes towards women;
attitudes towards alcohol;
abuse of power relationships and dynamics; and
security in residential settings, including access to bedrooms and other private spaces, where perpetrators had easy access to engage in harassment or assault.
This report observed that Australian universities and colleges provide education, pastoral care, recreational opportunities and employment to students at increased risk of experiencing sexual assault and harassment. Consequently, colleges and universities are uniquely placed to educate, respond to and prevent sexual assault and sexual harassment.
Key to addressing these risks is:
leadership and governance;
challenging and changing attitudes and behaviours towards women and alcohol;
ensuring better responses to reports of harassment and assault;
putting in place effective monitoring and evaluation mechanisms;
ensuring that residential colleges and residences review their own experience of, response to and prevention strategies around assault and harassment.
Based on these reports, colleges and residences have been on notice about the obligation to manage such risk.
Lessons for colleges, residences and universities about managing risk of harassment and assault
The John XXIII College decision highlights how issues around leadership and governance, attitudes to alcohol, reporting and responding to allegations of assault, monitoring and evaluation processes, and identifying risk of an event, a college setting or a cohort, can contribute to the failure to ensure the safety of and to properly discharge the duty of care to residents.
As students return to university and residences for semester 2, it is timely for colleges, residences and universities to be asking how they assess and manage the risk of harassment and assault, how they respond to complaints, what they do to ensure safety and to discharge duties around these risks, and how their governance structure enables them to improve their assessment and management of such risk.
Failure to do so may lead to significant risks to students, to boards, student leaders and to colleges. Where the human cost of assault and harassment is real, clear and manageable, then the response should be immediate, local and specific to your students.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.