Supreme Court dismisses historical abuse claim

Trigger warning: The following contents of this article discuss the alleged sexual assault of a minor.

In BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106, the Queensland Supreme Court recently revisited a number of general principles of civil liability in the context of historical abuse allegations.

The background

The Plaintiff commenced proceedings against the Defendant for personal injuries arising out of abuse which she alleged occurred when she was a student at a primary school operated by the Defendant in 1999. The Plaintiff alleged that she left class for the bathroom, where she was sexually assaulted in a toilet cubicle by the school groundskeeper.

The issues to be determined by the Court were:

1. whether the alleged assault occurred as alleged or at all;
2. whether the defendant was vicariously liable for the conduct of the groundskeeper;
3. whether the groundskeeper was acting in the course of his employment and whether as a matter of law the defendant was liable;
4. the nature and extent of any duty of care owed by the defendant to the plaintiff;
5. whether the defendant breached any duty of care.

The Plaintiff provided oral evidence as to her recollection of the abuse itself. There was no contemporaneous evidence of the abuse, nor any reporting at the time. The Plaintiff had not disclosed the abuse until 18 years later when she mentioned the alleged assault to her mother, and later partially to a psychologist. Records of psychologists from 2013 and later confirm psychiatric injury, but were unable to attribute this to the alleged events. Her oral evidence otherwise related to changes to her appearance to be more “boyish”, as well as the development of anxiety and depression, and becoming socially withdrawn and isolated.

The Plaintiff called various family members as witnesses, who similarly provided oral evidence relating to observed changes in her personality over the years.

The Defendant called evidence from various witnesses including staff members and a student who attended the school at the time, as well as the groundskeeper himself. The groundskeeper denied the allegations, and the totality of the Defendant’s evidence was relied on to submit that the groundskeeper was a married man with an impeccable reputation, and further that his job did not ordinarily require him to enter the toilets, and on rare occasions where this occurred, he first arranged for teachers to check the toilets before he entered.

The Defendant raised concerns as to various aspects of the Plaintiff’s “base reliability”, including inconsistencies in her evidence, and that the Plaintiff was “misleading or untruthful where it suits her”, consistent with medical records where the Plaintiff withheld information, her reporting to medico-legal experts, and on cross-examination. The Defendant also pointed out the improbability of the Plaintiff remembering the sequence of events in the level of detail provided, as well as the illogicality of the Plaintiff’s allegations of the events immediately following the abuse, such as her ability to return to class, and the absence of any concern raised regarding her absence.

Findings of the Court

Factual findings

The Court evaluated whether the abuse occurred with reference to the standard of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336, being proof on the balance of probabilities. Noting the serious nature of the allegations, the Court further had reference to the judgment in M v M (1988) 166 CLR 69 which emphasised the level of confidence a Court should have in reaching a decision that a case is met to the civil standard of proof, and the decision of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, which cautioned against a Court choosing between guesses as opposed to evidence which forms a reasonable basis for a definite conclusion.

Against this background, the Court was critical of the numerous inconsistencies in the Plaintiff’s evidence, including differences in the evidence provided by the Plaintiff’s sister, inconsistencies in the detail of the Plaintiff’s evidence when describing the assault, and inconsistencies in disclosure made to medical experts.

The Court held several facts also made the Claimant’s allegations improbable, including the proximity of the toilet block to the main pathway and teacher’s bathroom, and the Plaintiff managing to successfully hide the physical and mental effects of the abuse from teachers and her parents afterwards.

This was weighed against the evidence of the groundskeeper and the staff called by the Defendant, which were found to be more compelling.

The Court ultimately held that:

Vicarious liability

The Court had regard to the position in Prince Alfred College Inc v ADC (2016) 258 CLR 134 (Prince Alfred College), which effectively sets out a two-pronged approach to determining vicarious liability, requiring the employee to be in a position of authority, power and trust, as well as have the ability to achieve intimacy.

The Court ultimately held that the groundskeeper’s employment by the Defendant did not place him in a position of “authority, power, trust, control and the ability to achieve intimacy”. At best, the Court found his employment may have resulted in some interaction with students, but differentiated that to the level akin to a boarding master, class teacher, teachers’ aide, principal, sub-principal, sports teacher or school counsellor.

The Court concluded that had the alleged assault been proven, the Defendant would not be vicariously liable.

Duty of care

The Court found that whilst the Defendant uncontroversially owed a non-delegable duty of care to students, this was not breached, noting:

• policies were implemented by the Defendant regarding general risk of sexual abuse, which were appropriate having regard to their time;
• there was no evidence of any known or particular risk of paedophiles;
• the Plaintiff could not establish that it was a required or reasonable practice for Grade 3 students to be accompanied to the toilet at the time.

Future considerations 

With caselaw ever growing in the historical abuse space, this judgment provides further useful guidance to institutions and their insurers as to the application of established legal principles in more novel circumstances.

This was particularly so in relation to analysis of the burden of proof. The Court acknowledged the distressing nature of giving evidence in a case like this and that such distress ought not impact on credibility findings, but maintained that the adversarial system provides for the ability to test witnesses.

The Court’s analysis of vicarious liability also provides useful direction following the decision of CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551, highlighting that the decision in Prince Alfred College is not to be taken as a “one-size-fits-all” finding, and each employment relationship needs to be considered on its own facts.

Lastly, the decision provides a timely reminder as to the relevance of evidence tendered against the pleadings filed. The Court was critical of evidence regarding the groundsman giving students ice-blocks, concluding that this evidence would be relevant only to establishing grooming behaviours, which had not actually been pleaded by the Plaintiff.