Queensland Court of Appeal provides guidance on fact-finding and the extent of vicarious liability for certain staff members in historic school sexual abuse decision

In the recent decision of BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane Trading as Brisbane Catholic Education [2026] QCA 6, the Queensland Court of Appeal upheld a first instance dismissal of the plaintiff's claim for damages for sexual abuse by a groundsman at her primary school on the basis the plaintiff did not discharge the evidential onus of establishing the abuse occurred. Both the first instance and appeal decisions reinforce important principles in assessing evidence and vicarious liability in relation to allegations of historic sexual abuse.

Background

BYM alleged that she was sexually assaulted in 1999, when she was eight or nine years old, while attending a primary school owned and operated by Brisbane Catholic Education (BCE).

The alleged assault occurred during a school day after BYM was permitted to leave her classroom unaccompanied to go to the toilets. It was alleged that a groundskeeper employed by BCE (CD), entered the toilet block and sexually assaulted her.

BYM commenced proceedings against BCE in the Supreme Court of Queensland in January 2021, roughly 22 years after the alleged events occurred. The issues before the primary judge were limited to whether: the alleged assault occurred, BCE was vicariously liable for the conduct of CD and BCE had breached its duty of care.

First instance decision

The primary judge found BYM's evidence to be unreliable, whereas CD's evidence denying the allegations was honest and credible. BYM's claim failed as a result, however, her Honour went on to consider the remaining issues.

She found that, even if the assault had occurred as alleged, the evidence did not establish that CD had been acting in the course of his employment and that BCE would not have been vicariously liable for CD's alleged conduct as a result. Further, her Honour found that the evidence presented by BYM did not establish on the balance of probabilities that BCE had breached its non-delegable duty of care.

Appeal

BYM appealed this decision, advancing three grounds of appeal, being that the primary judge erred in finding that:

• the assault did not occur;
• BCE was not vicariously liable for the conduct of CD; and
• if the assault was established, BCE had breached its non-delegable duty of care.

The Court dismissed the appeal.

Primary judge's approach to fact-finding

BYM argued that the primary judge had failed to make appropriate allowance for the evidence that many survivors of sexual abuse do not disclose their abuse until much later and that this affected her conclusions as to BYM's credibility. The Court of Appeal, however, found that the primary judge had in fact accounted for this. The Court accepted the proposition that delayed complaint cannot of itself indicate falsehood but affirmed that it also could not be treated as a badge of truth. While the primary judge could not use BYM's delayed disclosure of abuse alone to undermine her credibility, it did not restrict her from considering the overwhelming evidence as to BYM's unreliability, including that given by BYM's own expert witness.

Further, BYM argued that the primary judge had misapplied the principle in Briginshaw v Briginshaw (1938) 60 CLR 336, which effectively states that the satisfaction required for a finding of fact in a civil proceeding must be influenced by the nature and consequence of the fact to be proved. This can include consideration of the seriousness of an allegation or the gravity of the consequences of the finding. BYM argued that the primary judge misused this principle to effectively hold BYM to a criminal standard of proof. The Court dismissed this argument, finding that her Honour had found that CD had a good recollection and gave credible evidence that he had never sexually assaulted a child. For BYM to establish her case, the primary judge correctly stated that, in the particular circumstances, BYM would need to find that CD intentionally gave false evidence. This was not a statement of legal principle, merely an assessment of the evidence presented at the hearing.

Finally, BYM submitted that the primary judge had failed to allow for the distress of BYM during her cross-examination; the distress suggesting BYM should be believed. The Court of Appeal also dismissed this argument, finding that the assessment of the credibility of BYM's testimony was a question open to the primary judge. There was no basis presented as to why the Court should interfere with the primary judge's findings.

Vicarious liability

The Court referred to CCIG Investments v Schokman (2023) 278 CLR 165, which provides that, for a finding of vicarious liability regarding the sexual abuse of a child, the relevant employment must provide more than mere opportunity. Features such as authority, power, trust, control or the ability to achieve intimacy with the child should be considered to determine if there is a sufficiently strong connection between the employment and the wrongful act, and a finding of liability on the basis the employment provided not only the opportunity, but the occasion for it.

The primary judge found that CD's role as a groundsman primarily involved maintenance work and emptying bins. As a member of the school's ancillary staff, CD was not given any particular authority, power or control over students, despite the fact he interacted with them. TBYM was not placed at a peculiar or increased risk of assault. CD's employment therefore did not give rise to the necessary position of intimacy needed for a finding of vicarious liability.

The Court of Appeal found no error in this approach.

Non-delegable duty of care

The Court of Appeal found that it was bound by the High Court decisions of New South Wales v Lepore (2003) 212 CLR 511 and Prince Alfred College v ADC (2016) 258 CLR 134 that a non-delegable duty cannot arise for an action based upon intentional wrongs by delegates. As a result, the Court found no reason to examine this submission any further but noted the matters asserted on appeal, including that BCE owed a duty to ensure she was not abused in its care, were inconsistent with the way BYM's case was pleaded and run at first instance

Implications

This decision provides important guidance for historical abuse litigation involving schools and other institutions, that is:

• Courts will apply careful forensic scrutiny to allegations raised decades after the alleged events, consistent with the principles in Briginshaw;
• Delayed disclosure does not undermine a claim as a matter of principle but explanations for delay remain open to critical evaluation;
• Vicarious liability requires a strong connection between employment role of the alleged perpetrator and wrongdoing; mere employment status or access to facilities is insufficient; and
• Consistent with High Court authority, a non‑delegable duty of care does not impose strict liability for intentional criminal acts by employees.

The decision reinforces the limits of institutional liability while confirming that historical claims will be assessed by orthodox principles of proof, proximity and legal responsibility.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.