Key takeaway points
- The Briginshaw principle, which relates to the civil standard of proof, remains correct law and is especially relevant in the context of claims of historical abuse which are now increasingly common since the limitation period for personal injury claims relating to sexual childhood abuse was abolished in Queensland in 2017.
- Non-disclosures of abuse may be cause for valid concern relating to a claimant’s reliability and credibility, in certain circumstances.
- The decision reinforces that vicarious liability does not arise merely because an employee’s role created the mere opportunity for abuse, the role must also give rise to the occasion, including by placing the employee in a position of authority, trust or intimacy.
- The law governing historical abuse claims continues to evolve, particularly following the High Court’s decision in DP v Bird. Careful attention to current authority is essential, especially as courts grapple with the scope of vicarious liability and non-delegable duties amid shifting tides of legislative reform.
Overview
We welcome the Queensland Court of Appeal’s important decision to uphold the findings of the Honourable Justice Williams in BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106. The decision of BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education [2026] QCA 6, handed down on Friday 23 January 2026, affirms the judiciary’s support of the original judgment, which upheld the relevancy of the Briginshaw principle in relation to the standard of proof for civil actions that contain allegations of serious misconduct and/or criminal acts. Further, the decision also supports the limitation of the scope of vicarious liability described in the original judgment.
RedeMont thanks Mr Richard Douglas KC and Mr Keith Howe of Counsel for their assistance with obtaining favourable decisions for the Archdiocese in both the first and second instance.
The issue
The appellant appealed the primary decision on grounds summarised below:
- The trial judge erred in her finding that on the balance of probabilities that the alleged sexual assault did not occur;
- The trial judge erred in her finding the Archdiocese would not be vicariously liable for the conduct of the alleged perpetrator had the alleged abuse occurred; and
- The trial judge erred in finding that the Archdiocese did not breach their duty of care to the appellant.
Interestingly, at the commencement of the hearing before the Court of Appeal the appellant abandoned the ground of appeal outlined in the third point above and obtained leave to introduce appeal ground 4:
- that the trial judge should have found that, if the assault as alleged was established, the Archdiocese breached its non-delegable duty of care.
RedeMont represented the Archdiocese in both the primary and appellate hearings, with both leading to decisions in favour of the Archdiocese. In this article, we will unpack and discuss the implications of the QCA’s findings on Appeal grounds 1, 2, and 4.
Initial claim and Supreme Court decision
The claim made against the Archdiocese of Brisbane (the Archdiocese) was in relation to an alleged sexual assault perpetrated against a female student (BYM) in 1999 by a groundsman employed by the school (CD) which was under the care and control of the Archdiocese. BYM, who by the time of the trial was 33 years old, was seeking compensation for damages caused by a psychiatric injury that she alleged that she suffered because of the abuse.
In her judgment, Williams J found that:
- Considering the serious nature of the allegations, BYM had not proved on the balance of probabilities that the alleged assault occurred, and therefore the claim failed.
- Even had the abuse occurred, the Archdiocese would not be vicariously liable for the criminal act of CD where his role merely afforded the opportunity for the act, rather than the act being in the course of his employment and/or possible due to some special role that placed CD in a “position of … intimacy” (Prince Alfred College Inc v ADC (2016) 258 CLR 134 at 160 [84]) in relation to BYM.
- The Archdiocese had not breached their duty of care to BYM by allowing students to go to the toilets on their own during class time on an ordinary school day.
QCA Judgment
Bond JA, Brown JA, and Crow J unanimously agreed that all the grounds of appeal failed. The honourable Bond JA wrote the leading judgment, and the important aspects and implications of his Honour’s judgment, are set out below.
Evidentiary burden on Appeal: Credibility and Non-Disclosure
Appeal ground 1 alleged that the trial judge erred in finding that, on the balance of probabilities, the alleged abuse did not occur.
Relevantly, the Briginshaw standard is that:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” – Briginshaw v Briginshaw (1938) 60 CLR 336 at 362
Her Honour quoted the above passage at [28] of the primary judgment and applied this standard to the evidence put before her. She highlighted that there are unique challenges to making claims for alleged events that occurred decades prior in terms of the fallibility of memory, especially in a case that seeks to rely on the testimony of a single witness. In this matter, BYM had made serious allegations of assault against CD over 20 years after the events were alleged to have occurred and was the only witness that provided an account of the assault. CD denied any such abuse occurred and was by all accounts a man of good character.
Williams J’s decision that she was not persuaded to the appropriate standard that the abuse occurred was influenced by BYM’s delayed disclosure and reporting of the subject abuse to various psychologists, which she viewed as undermining BYM’s credibility and reliability.
The appellate judgment discusses at [27] that delayed complaint of alleged sexual assault cannot be treated as a badge of untruth, nor can it of itself be treated as a badge of truth. It is widely accepted that sexual assault survivors may not come forward with complaints for years for various reasons and a psychiatrist provided evidence in this regard during the trial. However, Bond JA found that the trial judgment appropriately considered this and the concerns as to the claimant’s credibility due to the non-disclosure of the alleged abuse to a number of psychologists BYM attended in her 20s was acceptable.
The Court of Appeal therefore dismissed Appeal ground 1, finding that Williams J’s process of fact finding and concerns relating to the claimant’s reliability were sound.
Vicarious liability revisited: Opportunity versus Occasion
Appeal ground 2 was considered on the assumption that the alleged assault had occurred. The issue was whether the Archdiocese would be vicariously liable for CD’s conduct.
The Court reaffirmed that vicarious liability only arises where an employee’s wrongful act is committed in the course, or scope, of employment. Consistent with CCIG Investments v Schokman and Prince Alfred College v ADC, employment must provide more than the mere opportunity for wrongdoing; it must place the employee in a special position such that it provides the occasion for the act.
The appellant argued that CD’s role as a groundsman conferred authority, trust and the ability to achieve intimacy with students. The primary judge rejected that contention, finding that CD’s role did not involve teaching, supervision or pastoral care and did not place him in a position of authority or intimacy with students. Any interaction with students, or proximity to the toilet block, could at most establish opportunity, not the necessary connection to employment.
The Court of Appeal found no error in those factual findings or in the application of the law. Appeal ground 2 therefore failed.
Non-delegable duty of care: Ground 4, High Court authority and What comes next?
Appeal ground 4 was also addressed on the assumption that the alleged assault had occurred. The appellant contended that the Archdiocese owed a non-delegable duty to ensure that no abuse occurred, such that proof of abuse alone would establish breach.
The Court rejected this argument. The appellant’s pleaded case at trial was that the Archdiocese owed a non-delegable duty to take reasonable care, and that this duty was breached by specific failures relating to supervision and student movement. The duty was not pleaded, argued or litigated by the appellant as a duty to prevent intentional criminal acts or as a form of strict liability at the trial.
The Court noted that the appellant accepted that it was bound by New South Wales v Lepore and Prince Alfred College v ADC, which confirm that non-delegable duties do not extend to liability for intentional criminal acts of delegates. On that basis, appeal ground 4 was dismissed without further examination.
His Honour observed that the significance of the lack of exploration of the question concerning the scope of the non-delegable duty at trial may be a matter for the High Court if special leave is sought, making this a developing area to watch.
Outcome
The appeal highlights a number of difficulties that are part and parcel to historical abuse claims, such as the extended time elapsed since the alleged events, which often span decades, and the intrinsic complications of attempting to find where some semblance of the truth may lie between two opposing witness testimony. We continue to watch this space keenly and await further guidance from the legislature and judiciary.
