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In 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 dismissed an appeal from a decision of the Supreme Court of Queensland in which the plaintiff’s claim for damages for alleged historical sexual abuse was rejected. The case provides important clarification regarding the assessment of credibility in historic abuse claims, the operation of the Briginshaw principle, and the limits of vicarious and non-delegable liability in cases involving intentional wrongdoing.

Background

The appellant, BYM, alleged that in 1999, when she was approximately eight or nine years old, she was sexually assaulted by a groundsman (CD) while attending a primary school operated by Brisbane Catholic Education (BCE). The alleged incident occurred during school hours after BYM was permitted to leave her classroom unaccompanied to use the toilet facilities. It was alleged that CD entered the toilet block and assaulted her.

Proceedings were commenced in January 2021, more than two decades after the alleged incident. At trial, the primary issues were whether the assault occurred, whether BCE was vicariously liable for CD’s conduct, and whether BCE breached its non-delegable duty of care.

First instance decision

The primary judge rejected BYM’s claim, finding that she had failed to prove, on the balance of probabilities, that the alleged assault occurred. Central to this conclusion was an adverse assessment of BYM’s credibility and reliability. In contrast, CD’s evidence denying the allegations was accepted as honest and credible.

Although the claim failed at that threshold stage, the primary judge went on to consider the alternative bases of liability. Her Honour concluded that, even if the assault had been established, CD’s conduct would not have occurred in the course of his employment and BCE would therefore not have been vicariously liable. Further, the evidence did not establish that BCE had breached any non-delegable duty owed to BYM.

Grounds of appeal

BYM appealed on three principal grounds:

1. The primary judge erred in finding that the assault did not occur.
2. The primary judge erred in concluding that BCE was not vicariously liable.
3. The primary judge erred in finding that BCE had not breached its non-delegable duty of care.

The Court of Appeal dismissed each ground.

Assessment of evidence and the Briginshaw principle

A significant aspect of the appeal concerned the primary judge’s approach to fact-finding in the context of delayed disclosure. BYM argued that insufficient weight had been given to the well-recognised phenomenon that survivors of sexual abuse frequently delay reporting their experiences. The Court of Appeal accepted that delayed complaint cannot, of itself, be treated as indicative of fabrication. However, it equally cannot operate as an automatic marker of truth. The Court was satisfied that the primary judge had appropriately taken this into account while remaining entitled to scrutinise the reliability of the evidence as a whole, including inconsistencies and the opinions of BYM’s own expert witness.

BYM further contended that the primary judge had misapplied the principle in Briginshaw v Briginshaw (1938) 60 CLR 336  by effectively imposing a criminal standard of proof. The Court rejected that submission. It held that the primary judge had not elevated the standard beyond the civil standard but had recognised that, in circumstances where CD’s evidence was found to be credible and reliable, acceptance of BYM’s account would necessarily involve concluding that CD had deliberately given false evidence. This was an evidentiary observation rather than a reformulation of the applicable standard of proof.

The Court also dismissed arguments that insufficient allowance had been made for BYM’s distress during cross-examination. The assessment of witness credibility remained a matter for the trial judge, and no appealable error was demonstrated.

Vicarious liability

In addressing vicarious liability, the Court applied the High Court’s reasoning in CCIG Investments Pty Ltd v Schokman [2023] HCA 21.. That authority confirms that mere employment or the provision of an opportunity to commit wrongdoing is insufficient. Rather, there must be a sufficiently strong connection between the employment and the wrongful act, such that the employment provides not only the opportunity but the occasion for the misconduct. Relevant considerations include whether the role conferred authority, power, trust, control, or the capacity to achieve intimacy with the victim.

The primary judge found that CD’s role as a groundsman was limited to maintenance tasks and emptying bins. He was a member of ancillary staff and did not hold a position of authority or control over students. Although he had incidental interaction with students, his role did not place them in a position of particular vulnerability or create a relationship of trust or intimacy of the kind contemplated by the High Court authorities.

The Court of Appeal found no error in that reasoning and affirmed that the necessary connection between employment and wrongdoing had not been established.

Non-delegable duty of care

On the issue of non-delegable duty, the Court held that it was bound by the High Court decisions in New South Wales v Lepore [2003] HCA 4 and Prince Alfred College Inc v ADC [2016] HCA 37. Those authorities make clear that a non-delegable duty does not render an institution strictly liable for intentional criminal acts committed by employees.

In light of those binding precedents, the Court declined to revisit the issue in detail. It also observed that aspects of the appellant’s argument on appeal were inconsistent with the way the case had been pleaded and conducted at trial. BYM was of course decided prior to the High Court handing down their decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, which overturned the existing authority of Lepore and found that a non-delegable duty of care can be breached by the intentional criminal conduct of a delegate.

Implications

The decision underscores several important principles in the determination of historical abuse claims including that:

• courts will subject allegations raised decades after the alleged events to careful forensic examination, consistently with the approach articulated in Briginshaw.
• while delayed disclosure is a recognised feature of many abuse cases, it neither proves nor disproves the truth of an allegation and remains subject to evidentiary evaluation.
• vicarious liability requires a demonstrably strong connection between the employee’s assigned role and the wrongful act; mere access or employment status is insufficient.

The decision ultimately confirms that, notwithstanding the inherent sensitivity and complexity of historical abuse claims, such proceedings remain governed by established principles of evidence, causation and institutional liability.

This article was published on 8 May 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now.