BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education [2026] QCA 6
*At the time of publication, the Queensland Court of Appeal’s decision is subject to an Application for Special Leave to Appeal to the High Court. We will monitor the matter pending further developments.
The Queensland Court of Appeal has dismissed an appeal in a personal injuries claim relating to historical child abuse, finding the alleged assault could not be proven. Regardless of the alleged assault’s existence, the Court found a school would not be held vicariously liable for the alleged abuse by a groundskeeper, as such a role lacked the authority, trust and intimacy required under Prince Alfred College v ADC, and confirmed that non-delegable duties of employers do not extend to intentional criminal acts.
Facts
The Appellant, BYM, commenced proceedings against the Brisbane Catholic Education as the Respondent seeking to recover damages for personal injury arising from a sexual assault that allegedly occurred in 1999, when she was aged 8 or 9 and attended a school owned and operated by the Respondent.
The Appellant alleged she had attended school on a day in 1999 and was granted permission from her teacher to go to the toilet block unaccompanied. When she was in a toilet stall, she alleged that “CD” – a man who was employed as a groundskeeper – entered the toilet block, unlocked the toilet stall door and sexually assaulted her.
Issues in Dispute
The primary judge dismissed the Appellant’s claim on the basis that, on the balance of probabilities, the alleged assault did not occur, and in the event that it had, the Respondent was not vicariously liable for the conduct of its employee, CD.
The Appellant therefore advanced three grounds of appeal:
- The primary judge erred in finding on the balance of probabilities that the sexual assault of the Appellant did not occur and erred in the manner and process of assessing the evidence;
- The primary judge erred in finding that the Respondent was not vicariously liable for the conduct of CD in that the trial judge should have found that the evidence supported the conclusion that CD’s employment placed him in a position of authority, power, trust, control and the ability to achieve intimacy with students, including the Appellant, at the school; and
- The primary judge erred in finding that the Respondent did not breach its duty of care to the Appellant.
At the commencement of the hearing, the Appellant abandoned the third ground of appeal and instead introduced a fourth ground:
- The primary judge should have found that, if the alleged assault was established, the Respondent had breached its non-delegable duty of care.
The Court of Appeal's Decision
Ultimately, Justice Bond (with Justices Brown and Crow concurring) upheld the primary judge’s findings and dismissed the appeal for the following reasons.
Appeal Ground 1: Alleged error in finding the assault had not occurred
The primary judge had concluded the Appellant’s submissions regarding the alleged assault had no merit. The Appellant’s credibility had been called into question because:
- The Appellant had not disclosed the alleged assault to several of her treating psychologists whom she consulted during her twenties. In particular, the Appellant had accepted in cross-examination that whilst she formed a good and trusting relationship with one psychologist, she nonetheless was prepared to lie to the psychologist and had only imparted certain “flashbacks” and “partial memories” which were not consistent with the detailed recollection of the event the Appellant gave to the Court, some 24 years later;
- The Appellant had accepted that when asked questions about her family and home life by those psychologists, she gave unreliable information that included providing the “exaggerated truth” or by tending “… to take things that I’m feeling or things that are happening at the time and throw that out as the most extreme as I can to stop from talking about what’s actually going on in my life,“; and
- Her unreliability continued when she imparted history regarding her family dynamic and the circumstances of the alleged assault to the psychiatrists engaged for the purposes of the trial. Both psychiatrists had concluded that her non-disclosures were of significance, with one stating “thus, whether consciously or not, [the Appellant] minimised the non-abuse-related factors. On this basis, [the Appellant’s] reliability as a historian needed to be considered.”
The primary judge considered the Appellant’s reliability in the context of several other factors that influenced the overall conclusion that the alleged assault did not occur, namely: the alleged assault occurred in a location where anybody could have walked in at any time, the Appellant’s teacher had given evidence that she instructed the Appellant to be “quick” and the alleged assault was of a nature that if the Appellant was out of her class for such a period of time that would have raised concerns for her teacher, and that the Appellant had come straight back to class after the alleged event without her teacher or her mother later noticing any distress, despite the Appellant stating to the Court that she recalled feeling terrified, that it “really, really hurt” and she had bled. The primary judge found that this sounded adversely to the plausibility and probability of the Appellant’s account.
The Court of Appeal found the primary judge had made no errors in assessing the evidence. Appeal Ground 1 therefore failed, which meant the appeal was dismissed in its entirety.
Nonetheless, Justice Bond considered Appeals on issues of law should the matter proceed further.
Appeal Ground 2: Alleged error in failing to find vicarious liability
In considering the Appellant’s second ground of appeal, Justice Bond proceeded on the assumption that the assault had occurred in the manner alleged by the Appellant.
The Court considered the High Court’s decision in Prince Alfred College v ADC (2016) 258 CLR 134, where in determining whether vicarious liability arises in circumstances of sexual abuse of a child, regard may be had to any special role that was assigned to the employee by the employer. Features of employment, such as “authority, power, trust, control and the ability to achieve intimacy should be considered. Clearly a role embodying features of this kind may point to a strong connection between the employment and the wrongful act. The employment may be seen to provide more than a mere opportunity for the act to take place; it may provide the very occasion for it.”
For various reasons, the primary judge was not persuaded that CD’s employment placed him in such authority, power, trust, control and position of intimacy. Whilst it was acknowledged that CD may have interacted with students, it was not at the level akin to a boarding master, class teacher, teachers’ aide, principal, sub-principal, sports teacher or school counsellor. Students were instructed to treat ancillary staff, such as CD, with respect, but the role of ancillary staff was not to provide instruction that would place them in the position considered in Prince Alfred College.
The Court of Appeal agreed with the primary judge’s findings. Appeal Ground 2 subsequently failed.
Appeal Ground 4: Alleged error in failing to find breach of non-delegable duty of care
The Appellant submitted that the Respondent owed her a duty to ensure that she was not abused while in the care of the school. Ergo, if CD’s wrongdoing had been proven, that would be sufficient to establish that a breach of duty occurred.
However, the Appellant conceded that the Court is bound by the decisions of the High Court in 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, Appeal Ground 4 was dismissed.
Case Commentary
The above case reinforces two limits: first, credibility remains decisive in claims of historical abuse, and secondly, vicarious liability is confined to roles with a “special position” of power or intimacy and will not extend to intentional wrongdoings.
Whilst the Courts recognised the complexities of delayed disclosure and trauma, this case demonstrates that inconsistencies, non-disclosure to treating professionals and improbabilities surrounding factual allegations can still be determinative. It demonstrates that Plaintiffs must present a coherent and persuasive account capable of overcoming evidentiary gaps, particularly in relation to claims of historical abuse.
Further, the Court drew a clear distinction between employees who are entrusted with authority and intimacy (such as teachers or carers) and ancillary staff whose roles do not inherently involve supervisory responsibilities. This maintains a relatively confined scope for vicarious liability, whilst upholding the principle that non-delegable duties of care cannot arise in circumstances where delegates have committed intentional wrongs.
This article was written by Graduate, Caitlin Elwood and Partner, Cameron Seymour.
