BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education [2026] QCA 6

SUPREME COURT OF QUEENSLAND CITATION: BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education [2026] QCA 6 PARTIES: BYM (appellant) v THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS BRISBANE CATHOLIC EDUCATION ABN 49 991 006 857 (respondent) FILE NO/S: Appeal No 8319 of 2024 SC No 474 of 2021 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 106 (Williams J) DELIVERED ON: 23 January 2026 DELIVERED AT: Brisbane HEARING DATE: 5 March 2025 JUDGES: Bond JA, Brown JA, Crow J ORDER: Appeal dismissed, with costs. CATCHWORDS: TORTS – GENERALLY – VICARIOUS LIABILITY, NON- DELEGABLE DUTY AND RELATED MATTERS – where the appellant alleged that when she was a child attending a school owned and operated by the respondent, she was sexually assaulted by a groundskeeper employed by the respondent – where the appellant commenced a proceeding against the respondent seeking damages for personal injuries and other loss – where the alleged sexual assault occurred 22 years before the proceeding was commenced – where the primary judge was not satisfied that the assault occurred as alleged – where the primary judge concluded that, even if the assault had occurred as alleged, the groundskeeper would not have been acting in the course of his employment such that the respondent would be vicariously liable for the assault – where the primary judge further concluded that the respondent would not have breached their non-delegable duty to exercise reasonable care for the safety and welfare of students from foreseeable risk of injury – where the appellate standard of review to be applied is the Warren v Coombes correctness -- 1 of 21 -- 2 standard – whether the primary judge was correct to find on the balance of probabilities that the sexual assault did not occur – whether the primary judge erred in finding that the respondent was not vicariously liable – whether the primary judge erred in finding that the respondent had not breached its non-delegable duty of care Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited Bird v DP (a pseudonym) (2024) 98 ALJR 1349; [2024] HCA 41, cited Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, considered CCIG Investments v Schokman (2023) 278 CLR 165; [2023] HCA 21, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Gersbach v Gersbach [2018] NSWSC 1685, cited GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32, applied Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited M v M (1988) 166 CLR 69; [1988] HCA 68, applied New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited Prince Alfred College v ADC (2016) 258 CLR 134; [2016] HCA 37, cited Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited Wang v Hur [2024] QCA 126, cited Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, followed COUNSEL: G R Mullins KC, with C Campbell, for the appellant R J Douglas KC, with K S Howe, for the respondent SOLICITORS: Maurice Blackburn for the appellant RedeMont for the respondent [1] BOND JA: In January 2021 the appellant,1 then aged 30, commenced a proceeding against the respondent in the Trial Division of the Supreme Court of Queensland seeking to recover damages for personal injuries and other loss, consequent upon an alleged sexual assault. She said that the sexual assault had occurred in 1999 when she was 8 or 9 and had attended a school owned and operated by the respondent. [2] The appellant alleged that on a school day in 1999, she obtained permission from her teacher to leave class to go to the toilets. She alleged she left the classroom unaccompanied and entered the toilet block and went into a toilet stall. She alleged that CD - a middle-aged man who was employed by the respondent as a groundskeeper - entered the toilet block with cleaning or other equipment, unlocked 1 In BYM v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No 1) [2023] QSC 298, the primary judge explained her reasons for making various non-publication orders in relation to the appellant, the name of the school where the alleged offending against the appellant was said to have occurred, and the name of the alleged offender. Her Honour drafted her reasons on the merits accordingly. For similar reasons, these reasons will not identify the appellant, the school or the name of the alleged offender. -- 2 of 21 -- 3 the door to the toilet stall where she was, and went into the stall where he then proceeded to rape her. [3] At the trial the issues in dispute were as follows: (a) Issue 1 - whether the alleged assault occurred as alleged or at all. (b) Issue 2 - whether the respondent was at law vicariously liable for the conduct of CD. (c) Issue 3 - whether CD was acting in the course of his employment and whether as a matter of law the respondent was liable for his conduct. (d) Issue 4 - the nature and extent of any duty of care owed by the respondent to the appellant. (e) Issue 5 - whether the respondent had breached any duty of care. (f) Issue 6 - the nature and extent of damages, of and including for: (i) past and future economic loss; (ii) past and future care and assistance; (iii) past expenses; (iv) future expenses. (g) Issue 7 - whether any alleged injuries relate to the alleged assault. (h) Issue 8 - what injury or injuries, if the alleged abuse occurred, were attributable to the alleged assault. (i) Issue 9 - if the alleged assault occurred as alleged or at all, what loss or otherwise the appellant had suffered as a consequence. [4] During the course of the trial the parties reached an agreement on causation and the assessment of damages with the result that the primary judge did not need to consider issues 6, 7, 8 and 9. The trial continued to a conclusion in relation to the other issues. [5] The primary judge resolved issue 1 against the appellant. Although the primary judge did not find the appellant to be an intentionally dishonest witness, her Honour made adverse findings as to the appellant’s credibility and reliability, ultimately concluding that she was not persuaded by the appellant’s evidence. In contrast, the primary judge found the evidence of CD – who gave evidence denying the alleged assault – to be honest, credible and reliable. The result was that the appellant’s claim had to fail. However, her Honour proceeded to consider the remaining issues in case the matter proceeded to an appeal. [6] As to issues 2 and 3, the primary judge concluded that if, contrary to her finding, the assault had occurred as alleged, the respondent would be vicariously liable for the assault if the appellant had also established that CD was acting in the course of his employment and had been placed in a position of “authority, power and trust … such that he was able to achieve a substantial degree of intimacy” with the appellant. However, her Honour concluded that even if the assault had been found to have occurred as alleged, the evidence did not establish that CD would have been acting in the course of his employment when he did so. Consequently, the primary judge -- 3 of 21 -- 4 determined that the respondent would not have been vicariously liable for the alleged assault even if she had found it to have happened. [7] As to issues 4 and 5: (a) Her Honour found that it had not been contentious that the respondent had a non-delegable duty to exercise reasonable care for the safety and welfare of the appellant and other students at the school from foreseeable risk of injury. (b) Her Honour found that if the alleged assault had been found to have occurred it would have been necessary to consider whether in the circumstances the respondent had breached the duty to exercise reasonable care: (i) by permitting the appellant to go to the toilets on her own and unaccompanied during the course of class time in an ordinary school day. (ii) by failing to prohibit students from going to the toilet or walking about the school unaccompanied during the course of the school day while classes were being conducted. (iii) by failing to give instructions to teachers employed by the respondent that students were not to leave class to attend the toilet or to otherwise walk about the school unless they were accompanied by another student or an adult. (iv) by failing to undertake an appropriate risk assessment to determine the risks associated with permitting students to walk about the school during class time unsupervised and unaccompanied. (v) by failing to create, implement and enforce written policies relating to the circumstances in which a child could leave the classroom and to publish those instructions to both students and teachers to ensure that students and teachers understood the circumstances in which a child could leave a classroom during class time unaccompanied and unsupervised. (c) Her Honour rejected the case of breach and found that the appellant had not established it on the balance of probabilities. [8] By her notice of appeal as filed, the appellant advanced three grounds of appeal. [9] Ground 1 - The trial 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 in that the trial judge: (a) failed to make appropriate allowance in the assessment of the appellant’s evidence for the unchallenged evidence of Dr Duke that it was not uncommon for survivors of sexual abuse to not disclose their abuse at an earlier time for reasons similar to those advanced by the appellant in her evidence and, in failing to make such allowances, concluded that any such non-disclosure by the appellant undermined the credibility and reliability of the appellant’s evidence; (b) failed to correctly apply the principles in Briginshaw v Briginshaw;2 2 Briginshaw v Briginshaw (1938) 60 CLR 336 -- 4 of 21 -- 5 (c) failed, in the evaluation of the appellant’s credibility, to make appropriate allowance for the distress the appellant suffered during the course of cross- examination; and (d) found that, in order to conclude on the balance of probabilities that the assault as alleged occurred, the Court needed to find that CD gave intentionally false evidence. [10] Ground 2 - The trial 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. [11] Ground 3 - The trial judge erred in finding that the respondent did not breach its duty of care to the appellant in: (a) permitting and failing to prohibit students from going to the toilets on their own and unaccompanied during the course of class time in an ordinary school day; (b) failing to undertake a risk assessment to determine the risks associated with permitting students to walk about the school during class time unsupervised and unaccompanied; (c) failing to give instructions to teachers and implement policies and procedures to prohibit students from going to the toilets on their own and unaccompanied during the course of class time in an ordinary school day. [12] At the commencement of the hearing before this court the appellant abandoned the third ground of appeal and obtained leave to introduce a new fourth ground of appeal. The result was that this court needs only consider grounds 1, 2 and the new ground 4: “Ground 4 – The trial judge should have found that, if the assault as alleged was established, the respondent had breached its non- delegable duty of care.” [13] For reasons which follow each of those grounds of appeal must fail. The appeal should be dismissed with costs. Appeal ground 1: alleged error in finding the assault had not happened [14] This is an appeal by way of rehearing and the appellate standard of review is the Warren v Coombes3 correctness standard. On such an appeal, the principles governing the circumstances in which an appellate court should be prepared to interfere with the fact-finding made by a primary judge are settled. The operation of that standard of review has been the subject of consideration in a number of subsequent decisions in the High Court, including in particular Allesch v Maunz;4 Fox v Percy;5 Robinson Helicopter Company Incorporated v McDermott;6 and Lee v Lee.7 3 Warren v Coombes (1979) 142 CLR 531 at 551. 4 Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ. 5 Fox v Percy (2003) 214 CLR 118 at 127 [26]-[27] per Gleeson CJ, Gummow and Kirby JJ. 6 Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ. 7 Lee v Lee (2019) 266 CLR 129 at [55] per Bell, Gageler, Nettle and Edelman JJ. -- 5 of 21 -- 6 [15] This court has summarised the relevant principles, retaining the language used by those High Court, in these terms:8 “(a) On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error. (b) On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether it should be so satisfied. (c) If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. (d) When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. (e) However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. (f) In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences.’” [16] The primary judge’s findings in relation to issue 1 were obviously affected by her assessment of the credibility and reliability of the appellant and of CD. The result is that the appellant had the heavy burden of seeking to persuade this court that the primary judge had “failed to use or has palpably misused [her] advantage” or had acted on evidence which was “inconsistent with facts incontrovertibly established by 8 Wang v Hur [2024] QCA 126 at [23] – [24]; Di Carlo v Bar Association of Queensland [2025] QCA 143 at [47]; Bampton v Vourlides [2024] QCA 191 at [59]; Bilson v Vatsonic Communications Pty Ltd (2024) 333 IR 430 at [35]; Chakka v Queensland Police Service [2024] QCA 213 at [5]; Kavanagh v Londy [2024] QCA 140 at [74]; Shearer v Super Start Batteries Pty Ltd [2024] QCA 199 at [16]; Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255 at [56]; Stewart v Metro North Hospital and Health Service [2024] QCA 225 at [65]. -- 6 of 21 -- 7 the evidence”, or which was “glaringly improbable”, or which was “contrary to compelling inferences.” For reasons which follow, the appellant’s case on this ground of appeal failed to discharge that burden. The primary judge explained her approach to fact-finding [17] Before embarking upon her examination of the evidence concerning issue 1 the primary judge set out a careful examination of general principle concerning the approach which should be taken to the making of findings of fact in a case of this nature. [18] Her Honour made it clear that she intended to follow the approach articulated by the High Court in M v M (1988) 166 CLR 69 at 76: “In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw.”9 [19] Her Honour identified the relevant factors mentioned in Briginshaw v Briginshaw, by quoting first from the judgment of Dixon J: “But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.”10 [20] Her Honour also quoted to his Honour’s later observations in the same case:11 “This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”12 [21] In assessing the question of whether the evidence reached the relevant level, the primary judge was conscious of the need to move away from reliance merely on 9 BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106 at [29]. 10 (1938) 60 CLR 336 at 362 quoted in the reasons of the primary judge at [27]. 11 Reasons of the primary judge at [28]. 12 At 362 – 363. -- 7 of 21 -- 8 demeanour as an indicator of truth or falsehood, citing discussions to that effect by the High Court in Fox v Percy (2003) 214 CLR 118 at [31] and a similar discussion by Garling J in Gersbach v Gersbach [2018] NSWSC 1685.13 Her Honour made explicit reference to the detailed discussion of the process of judicial fact-finding embarked upon in the majority judgment in the High Court decision of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore.14 Her Honour found to be particularly relevant the comments made by the majority in the following passage:15 “Common law courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred long in the past. For example, the warning which Longman v The Queen said may be required in a criminal trial involving events in the distant past has a civil law equivalent. Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is ‘fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time’. A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of ‘actual persuasion’ which is required before a fact may be found. ‘To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence … It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.’ The evidence must ‘give rise to a reasonable and definite inference’ to enable a factual finding to be made; mere conjecture based on ‘conflicting inferences of equal degrees of probability’ is insufficient. As Dixon CJ said in Jones v Dunkel, the law: ‘does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’.” [22] Having regard to the reference by the High Court in GLJ to Longman and Watson v Foxman, her Honour referred to and quoted from the relevant passages in both those cases in these terms:16 13 Reasons of the primary judge at [32] to [34]. 14 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; reasons of the primary judge at [35] – [38]. 15 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at [59] – [60]; reasons of the primary judge at [38]. 16 Reasons of the primary judge at [41] – [46]. -- 8 of 21 -- 9 “Watson v Foxman concerned civil proceedings for misleading or deceptive conduct alleged to arise from words spoken in a conversation. The issue arose as to the required level of satisfaction for the Court to find that the words were misleading. McLelland CJ in Equity observed: ‘… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.’ In that case, his Honour observed that “serious difficulties of proof” may arise where a party is seeking to rely on spoken words to found a cause of action where there is no “reliable contemporaneous record or other satisfactory corroboration”. That was found to be so in that case and consequently the required level of persuasion was not met. Longman v The Queen was a criminal case and included consideration on appeal whether a general direction was required to be given to the jury where there was a long delay in the prosecution of the alleged offending. The appeal was allowed, and a new trial was ordered as a result of the fairness of the trial being impaired as a result of the failure of the trial judge to give a warning to the jury. Factors including the delay in the prosecution of more than 20 years, the nature of the allegations, the age of the complainant at the time of the alleged events and the absence of complaint were significant considerations. In the circumstances, a warning was required by the general law. McHugh J relevantly observed: ‘The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or -- 9 of 21 -- 10 recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-70. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred… Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be…’. The defendant contends that, consistent with the High Court reasoning in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, where there has been a long delay between the alleged occurrence of the event and the trial (particularly such as here where there is no limitation period imposed by statute), the Court is obliged to subject the plaintiff’s evidence to scrutiny, more so than in the usual case.” (footnotes omitted) [23] Her Honour summarised the approach that she intended to take in fact-finding in these terms:17 “The approaches contended for by the plaintiff and the defendant are in practical terms the same as they both require consideration of the usual jurisprudential techniques. It is necessary to analyse all of the evidence and to consider whether on all of the evidence the necessary degree of satisfaction is reached in respect of the plaintiff’s claim raising serious allegations of assault. The Court is to look at the entirety of the evidence, including: (a) Considering ‘contemporary materials, objectively established facts and the apparent logic of events’; and (b) Other evidence, including that of the alleged perpetrator. Further, in the particular circumstances, the analysis is to be undertaken mindful of: (a) the substantial period of delay between the alleged assault and the trial; and (b) the alleged assault constitutes a serious criminal offence against a child. The key issues in this proceeding concern the credit and reliability of the plaintiff and other witnesses and ultimately whether the plaintiff has discharged the onus on her of proving, on the balance of probabilities, that the alleged assault occurred.” (footnotes omitted) 17 Reasons of the primary judge at [52] to [55]. -- 10 of 21 -- 11 [24] The primary judge’s articulation of the principles by reference to which she was going to embark upon fact-finding was not criticised by the appellant. Alleged error in the treatment of absent or delayed complaint of sexual assault [25] The appellant contended that in the assessment of the appellant’s evidence the primary judge failed to make appropriate allowance for the unchallenged evidence of Dr Duke that it was not uncommon for survivors of sexual abuse to not disclose their abuse at an earlier time for reasons similar to those advanced by the appellant in her evidence and, in failing to make such allowances, concluded that any such non- disclosure by the appellant undermined the credibility and reliability of the appellant’s evidence. In oral submissions to this court the appellant went further and suggested that the whole process of fact-finding should be taken to have miscarried because it is impossible to discern the role that the inconsistence in disclosure played in the primary judge’s fact-finding. [26] The appellant’s submission has no merit. [27] First, it is true that Dr Duke, an expert psychiatrist engaged by the respondent to interview the appellant for the purposes of the trial of her personal injury claim, gave such evidence. Its correctness was not challenged. Indeed it would have been difficult to do so. The proposition reflects the experience of the criminal law. Moreover, the public policy reflected in the Evidence Act 1977 (Qld) is that absent or delayed complaint does not of itself indicate falsehood of the complaint and there may be good reasons why a person who has been sexually assaulted may hesitate in making or refrain in making a complaint about the assault.18 Importantly, however, even in criminal trials, where a complainant has provided an explanation for delay or absence of complaint, the credibility of the explanation may still be a significant matter to be considered by a jury,19 and, depending on the evidence in the case, it may still be appropriate to give the jury a warning about the evidence.20 [28] The true position, applicable in both civil and criminal trials, is that while absent, inconsistent or delayed complaint of alleged sexual assault cannot of itself be treated as a badge of untruth, neither can it of itself be treated as a badge of truth. [29] Second, the primary judge did not fall into either sort of error. The role that the inconsistent and delayed disclosure played in the fact-finding was not only possible to discern but was in fact explicitly recorded by her Honour. The primary judge recorded the chronology of the disclosures which the appellant had made and not made and the appellant’s explanations therefor,21 recorded the submissions which had been made about the significance of that evidence,22 and made it perfectly clear that she was not persuaded to accept the explanations advanced by the appellant in relation to the manner of disclosure to the raft of psychologists who she had seen over time and that she regarded the issue as sounding adversely as to the credibility and reliability of the appellant’s evidence.23 18 See ss 103ZZ and 103ZZB of the Evidence Act 1977 (Qld). 19 Jarrett v R (2014) 86 NSWLR 623 at [41] per Basten JA. 20 See the general discussion in R v MEQ [2025] QCA 186 at [10] – [14]. 21 See the reasons of the primary judge at [60], [62] to [65], [99] to [102], [104], [115] to [125], [130] to [138], [158] to [159], and [173]. 22 See the reasons of the primary judge at [181] to [190], [214] to [230], [242] to [264]. 23 See the reasons of the primary judge at [287], [297] – [298], [315] – [316]. -- 11 of 21 -- 12 [30] Third, a review of the evidence to which the primary judge referred in the passages from her reasons identified in the previous paragraph does not support a conclusion that the primary judge made any reviewable error in reaching an adverse view about the adequacy of the explanations which the appellant had provided for the history and content of the disclosures which she made. As to this: (a) The primary judge did not overlook the part of Dr Duke’s evidence to which the appellant refers, because she specifically adverted to it.24 (b) As the respondent submitted to this court, and - evidently not accepting the appellant’s explanations therefor - as the primary judge found,25 there were compelling and concerning points to be made adverse to the appellant’s credit and reliability from a consideration of the history and content of the disclosures which the appellant had made: (i) The appellant had not disclosed the alleged abuse to the raft of psychologists (Ms Howie, Dr Quinn and Ms Martin respectively) who she consulted when she was in her twenties. And that was so notwithstanding that the appellant had accepted in cross-examination that Ms Martin was a person she saw in 2017 over about ten sessions, formed a good relationship, trusted, and found “lovely”, but nonetheless to whom she was prepared to lie, and to whom she had only imparted certain “flashbacks” and “partial memories”, which were not consistent with the detailed recollection she subsequently gave to the court or to the psychiatric experts retained for the trial. (ii) The appellant had accepted that when she had been asked questions about her family and home life by those psychologists she gave them unreliable information including by having “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.” (iii) The appellant’s unreliability continued in relation to imparting history concerning her family dynamic and the circumstances of the alleged assault to the psychiatrists engaged for the purposes of the trial. (c) As the respondent submitted to this Court, and the primary judge found,26 both of the psychiatrists retained for the purposes of the trial opined that the appellant’s non-disclosures were of significance: (i) Dr Mathew, who had been retained by the appellant opined: “At interview, [the appellant] did not disclose the intrafamily disturbance. This was a significant omission. Dr Duke and I only came to know of this when provided with additional material. 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.”27 24 See the reasons of the primary judge at [183]. 25 See the reasons of the primary judge at [297]. 26 See the reasons of the primary judge at [297]. 27 See the reasons of the primary judge at [262]. -- 12 of 21 -- 13 (ii) Dr Duke opined: “This inconsistency does raise questions either with regard to [the appellant’s] reliability as a historian, or with regard to the reliability of her memories of events.”28 [31] Fourth, the primary judge made her adverse assessment of the reliability and credibility of the appellant in the context of her review of the evidence as a whole, which provided further support for her conclusion and no support for the conclusion that she made the alleged reviewable error. Other circumstances which the primary judge took into account as sounding adversely to the plausibility of the appellant’s evidence and its probability of being true included: (a) The appellant’s own evidence that she had lied and exaggerated statements over time, requiring careful scrutiny of her evidence.29 (b) The appellant’s evidence at trial was highly detailed and was able to be given in chronological sequence, despite the alleged assault occurring approximately 24 years previously, when the appellant was a nine-year-old child.30 The primary judge evidently found that such detailed evidence was unlikely to be reliable. (c) The appellant gave evidence, which the primary judge rejected having regard to other evidence, that the toilet doors were easily unlocked from the outside.31 (d) The alleged assault occurred in a location where anybody else could have walked in at any time.32 (e) The alleged assault was of a nature that the appellant was out of her class for such a period of time that it would have been likely to raise concerns with her experienced and insightful teacher, particularly where the teacher had instructed the plaintiff on her own evidence to be “quick”.33 (f) On the appellant’s account the alleged assault involved acts of indecent touching, two distinct acts of digital penetration and penile/vaginal penetration.34 The appellant gave evidence that she had been terrified, that it “really, really hurt” and that she recalled bleeding.35 She went straight back to class, apparently without either the teacher then, or her mother later, noticing any distress. The primary judge found this sounded adversely to the plausibility and probability of the appellant’s account.36 Her Honour observed: “The allegation of penile penetration of a nine-year-old girl is a significant part of the alleged assault. The probability of the alleged assault occurring is also diminished by the likelihood of such a serious assault being able to be hidden from a caring and intuitive teacher and the plaintiff’s mother when it is likely that 28 See the reasons of the primary judge at [263]. 29 See the reasons of the primary judge at [316(a)]. 30 See the reasons of the primary judge at [297] and see also [316](b). 31 See the reasons of the primary judge at [76], [299](a), [306] and see also [316](d). 32 See the reasons of the primary judge at [299], [310] to [311] and see also [316](d). 33 See the reasons of the primary judge at [299], [313] and see also [316](d). 34 See the reasons of the primary judge at [87] and [312]. 35 See the reasons of the primary judge at [87]. 36 See the reasons of the primary judge at [299]. -- 13 of 21 -- 14 the alleged assault would have had a significant effect on the plaintiff physically, mentally and emotionally.”37 [32] The appellant’s argument does not provide a basis from which a conclusion can be reached that this court should interfere with the primary judge’s assessment of the appellant’s evidence. Alleged errors in the application of Briginshaw v Briginshaw and in the treatment of CD’s evidence [33] The appellant’s written submissions were as follows: “Third, although the principles in Briginshaw applied, those principles were misapplied by the trial judge. There was clear and cogent evidence from the appellant that the assault occurred. This was not a case of competing conversations or where inferences from circumstantial evidence needed to be drawn. The appellant gave detailed evidence as to the assault occurring and CD denied it occurred. In this context, the trial judge erred in concluding that in order to find for the appellant, the Court needed to find that ‘CD intentionally gave false evidence’. Reliance was placed on the reasons of Garling J in Gersbach v. Gersbach. However, the finding by Garling J was not a statement of legal principle but rather an observation in the factual context of that particular case. In Gersbach, the allegations of the plaintiff related to physical and sexual abuse by her parents over a period of time. There was not a single event but rather multiple events over an extended period. Both the defendant and his wife gave evidence that none of the events occurred. Garling J recorded that ‘their evidence denying that the conduct occurred cannot be explained by forgetfulness or some other innocent reason.’ But His Honour followed that statement by observing: No parent, in my view, could forget that they had done such things to their daughter over such an extended period of time. The denial by CD that the event occurred was a factor that was required to be considered in the process of evaluating the evidence as a whole. The event occurred over several minutes. Evaluation of the appellant's evidence in the context of the allegations was likely to be of more assistance in the assessment of the evidence as a whole in determining whether the appellant had satisfied the relevant standard of proof. The conclusion that the appellant was obliged to prove that CD ‘intentionally gave false evidence’ in the context of Briginshaw effectively set the bar close to a criminal standard of proof.” [34] The appellant’s argument sought to characterise the relevant part of the primary judge’s reasons as though her Honour was positing and applying some form of wrong principle in fact-finding, which led her to ignore other possibilities. In oral argument to this court the appellant posited that CD might have forgotten assaulting the 37 See the reasons of the primary judge at [314], the same point having been made earlier at [299]. -- 14 of 21 -- 15 appellant; or might have wrongly convinced himself that he had not carried out the assault; or might have suffered from false memory syndrome. [35] As to the first proposition, it has already been mentioned that the primary judge explained her approach to fact-finding in a distinct section of her reasons and before she embarked upon the process of fact-finding itself. No criticism has been levelled at that section of the primary judge’s reasons. Her Honour did not misapply principle. [36] All that happened is that the primary judge had heard both witnesses and evaluated both witnesses against the background of the evidence as a whole. Her Honour formed and expressed the view that CD had a good recollection and had given credible and reliable evidence that he had not ever sexually assaulted any child.38 Having formed such a positive view of CD’s evidence, the later observation of which the appellant complains (which was prefaced by the phrase “in the particular circumstances of this case”) was merely commonplace.39 Her Honour’s earlier finding about CD’s evidence had excluded any of the now suggested other bases on which CD’s positive evidence negating his involvement in sexual assault of a child might not be accepted. [37] Whilst the appellant’s observation that Garling J was not making a statement of legal principle in the relevant part of Gersbach is correct, the same thing may be said of the primary judge in the present case. The fact is that the primary judge did not accept the evidence of the appellant and did accept the contrary evidence of CD. The primary judge did not make the errors which the appellant suggested she had made. Alleged error in making allowance for appellant’s distress during cross- examination [38] The appellant suggested that, in the evaluation of the appellant’s credibility, the primary judge failed to make appropriate allowance for the distress the appellant suffered during the course of cross-examination. The appellant suggested that the primary judge should have found that the fact the appellant’s evidence was very real to her and obviously very distressing to her should have suggested to the primary judge that the appellant was telling the truth. [39] The weight which the primary judge should have given to these matters was a question for her. There is no basis from which a conclusion can be reached that this court should interfere with the primary judge’s assessment of their significance. Conclusion [40] Appeal ground 1 fails. In light of that conclusion, the appeal must be dismissed. However, in case the matter proceeds further, it is nevertheless appropriate for this court to deal with appeal grounds 2 and 4. Appeal ground 2: alleged error in failing to find vicariously liability [41] Appeal ground 2 must be dealt with on the assumption that, contrary to the primary judge’s finding and the failure of appeal ground 1, the assault had occurred in the manner described in the appellant’s evidence. 38 Reasons of the primary judge at [295]. 39 Reasons of the primary judge at [302]. -- 15 of 21 -- 16 [42] An employer is vicariously liable for the tortious acts of its employee if they are committed in the course of or scope of the employee’s employment. The critical issue on which vicarious liability would turn in the present case would be whether the tortious acts of the respondent’s employee CD, could properly be so described. Importantly, in CCIG Investments v Schokman40 the plurality judgment of Kiefel CJ, Gageler, Gordon and Jagot JJ observed: “… for an act to be said to be in the course of employment something more is necessary than that the employment has merely created the opportunity for the wrongful act to take place. And as was observed in Prince Alfred College, this is a view which has been consistently applied. Where no more can be pointed to than that the employment provides an opportunity for the employee’s wrongful act to take place, the connection with the employment is tenuous. Such a circumstance is to be distinguished from that where an employee is placed in a special position by reason of the employment so that the act in question may be seen as one to which the ostensible performance of the employer’s work by the employee “gives occasion”, to adopt the words of Dixon J in Deatons Pty Ltd v Flew. In such a circumstance the requisite connection would be present. In Prince Alfred College, it was explained that in determining whether vicarious liability arises for an act of sexual abuse of a child that took place in a school or other institution, regard may be had to any special role the employer has assigned to the employee. Features of the 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.” [43] By appeal ground 2, the appellant contends that the primary judge erred in finding that the respondent was not vicariously liable for the conduct of CD in that the primary 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. That conclusion had been the conclusion which the appellant had sought below. It was in that way that the appellant had sought to avoid the conclusion that the only connection between the assault and CD’s employment was that the employment merely created the opportunity for CD’s wrongdoing. [44] The primary judge was not persuaded. In this regard the primary judge made the following factual findings:41 (a) CD was employed by the respondent. (b) CD undertook work as a groundsman. 40 CCIG Investments v Schokman (2023) 278 CLR 165 at [32] to [34], footnotes omitted. 41 Reasons of the primary judge at [337] and [344] to [353]. -- 16 of 21 -- 17 (c) Although – (i) there was evidence that CD’s role was documented in the early stages of his employment as a cleaner with a toilet allowance for the purposes of the structure of his pay; (ii) the consistent evidence, apart from the evidence of the appellant and her sister, was that CD did not fulfil the role of cleaner; (iii) CD did accept he did some maintenance work and also emptied bins when necessary, but did not use a mop and bucket, CD’s role was as a groundsman, and he did not fulfil general cleaning duties. (d) The course of CD’s employment did not place him in a position of intimacy with students, and in particular the appellant. (e) The course of CD’s employment may have resulted in some interaction with students, but this was not at the level akin to a boarding master, class teacher, teachers’ aide, principal, sub-principal, sports teacher or school counsellor. (f) Whilst CD was a member of staff and an adult at the respondent’s school, he did not have in the course of his employment any particular “authority, power, trust, control and the ability to achieve intimacy”. (g) Considering whether CD had “authority, power, trust, control and the ability to achieve intimacy” in the context of all of the evidence, there was no basis to conclude that the appellant was placed at peculiar or increased risk of assault. (h) Whilst CD’s shed (from which he undertook his groundsman’s activities) may have been proximate to the toilet block, that did not give rise to the necessary position of intimacy and could at best for the appellant be regarded as providing the “opportunity” but the not the “occasion” as discussed in the authorities. (i) If the alleged assault had been found to have occurred, the evidence did not establish that CD was acting in the course of his employment and was placed in a position of “authority, power and trust … such that he was able to achieve a substantial degree of intimacy” with the appellant. [45] Based on those findings, the primary judge concluded that the respondent would not be vicariously liable for the assault, if the alleged assault had been found to have occurred. [46] Before this court the appellant argued that the primary judge erred in the application of the facts to the law in that: (a) Students were instructed to treat CD and other staff with respect and to follow their instructions. The ancillary staff at the school were to be treated in a similar way to teachers and to be shown respect. (b) CD had regular interaction with the children at the school in an informal way. He admitted that children regularly greeted him as he would be walking around the pathways. The appellant and other witnesses gave evidence that CD regularly engaged with students as he walked around the school. (c) CD had access to the children’s toilets. On his own evidence, he would enter the toilets from time to time albeit only if he organised a staff member to first -- 17 of 21 -- 18 investigate that the toilets were empty and then required the staff member to stand outside. (d) The school counsellor had given evidence that CD was regularly in the vicinity of the children’s toilet block. As the appellant’s evidence demonstrated, there was nothing unusual in CD being in and around the toilets. [47] There was some evidence to support the factual assertions so advanced. But, as the respondent submitted to this court, there was also evidence from the school headmaster that the instructions to students in relation to ancillary staff such as CD was that they should be treated with respect, but not that the children should follow their directions because that was not the role of ancillary staff. Even if the appellant’s assertions were completely accepted, they would not demonstrate that the primary judge made any error in making the factual findings which she did. [48] The appellant was critical of the observation made by the primary judge that a consideration of CD’s role led her to observe that there was no basis to conclude that the plaintiff was placed at peculiar or increased risk of assault. Her Honour’s statement was a response to her earlier recording that it had been suggested in Fleming on Torts that the approach of focussing on “authority, power, trust, control and the ability to achieve intimacy” involved some consideration of risk, in that these factors are relevant to the victim being placed at peculiar risk of abuse, or a result of an “increase in the risk”. Her Honour’s finding concerning risk was merely an observation as to the absence of a factor which had some relevance. [49] As is made clear in the above quote from CCIG Investments v Schokman, the purpose of the enquiry into the features of authority, power, trust, control and the ability to achieve intimacy in a case such as the present is to determine whether there is a sufficiently strong connection between the employment and the wrongful act to justify the conclusion that the employment may be seen to provide more than the mere opportunity for the act to take place. A consideration of risk is not irrelevant to the enquiry into the sufficiency of the strength of the connection. There is nothing in the appellant’s criticism of the primary judge’s reasoning in this regard. [50] The appellant has not demonstrated any error in the primary judge’s factual findings or her conclusion in relation to vicarious liability. Appeal ground 2 fails. Appeal ground 4: alleged error in failing to find breach of non-delegable duty of care [51] As with appeal ground 4, this ground must be dealt on the basis that, contrary to the primary judge’s finding and the failure of appeal ground 1, the assault had occurred in the manner described in the appellant’s evidence. [52] The appellant submitted that the respondent owed her not simply a duty to exercise reasonable care, but a duty to ensure that she was not abused while in the care of the school. On that argument, the question of whether CD had the “authority, power and trust ... such that he was able to achieve a substantial degree of intimacy” which was relevant to appeal ground 2 would not be critical to the establishment of liability. If CD’s wrongdoing had been proven, that would be sufficient to establish breach of duty. [53] The relevant aspects of the appellant’s pleaded case below were: -- 18 of 21 -- 19 “Duty of Care 8. The defendant owed the plaintiff a duty to exercise reasonable care for the safety and welfare of the plaintiff and other pupils at the school from foreseeable risks of injury. 9. The duty of care owed by the defendant was non-delegable. 10. It was reasonably foreseeable that the plaintiff may suffer physical harm or sexual abuse by persons within its employment because: (a) The plaintiff was a child of primary school years and vulnerable by reason of her age; (b) The defendant knew that there were sexual predators who were employed by it working at schools operated by it; (c) If the plaintiff was left unsupervised or unaccompanied during the course of a school day, she was vulnerable to being physically or sexually abused by persons employed by the defendant; (d) The plaintiff repeats and relies upon the matters referred to in paragraph 2 above [which was a plea that the defendant knew that in the 30 years preceding the alleged incident, there had been incidents in which it had employed sexual predators at schools operated by it and who had abused children at those schools]. Breach of Duty 11. The defendant was in breach of its duty of care to the plaintiff in: (a) Permitting the plaintiff to go to the toilets on her own and unaccompanied during the course of class time in an ordinary school day; (b) Failing to prohibit students from going to the toilet or walking about the school unaccompanied during the course of the school day while classes were being conducted; (c) Failing to give instructions to Teachers employed by the defendant that students were not to leave the class to attend the toilet or to otherwise walk about the school unless they were accompanied by another student or an adult; (d) Failing to undertake an appropriate risk assessment to determine the risks associated with permitting students to walk about the school during class time unsupervised and unaccompanied; (e) Failing to create, implement and enforce written protocols relating to the circumstances in which a child could leave the classroom and to publish those -- 19 of 21 -- 20 instructions to both students and Teachers to ensure that students and Teachers understood the circumstances in which a child could leave a classroom during class time unaccompanied and unsupervised. Causation 12. The Assault would not have occurred if the breaches of duty described in paragraph 11 above, or any of them, had not occurred.” [54] In context, the plea of non-delegable duty in [9] was a plea that the defendant could not delegate the duty to take reasonable care which had been pleaded in [8]. The pleading then must be understood as alleging that the non-delegable duty to take reasonable care was breached as alleged in [11] and that but for the breaches alleged in [11] the assault would not have occurred. In the statement of claim the non- delegable duty was not pleaded as a duty either (1) to ensure reasonable care was taken that the appellant was not the subject of an intentional or criminal wrong or (2) to ensure that the appellant was not the subject of an intentional or criminal wrong. Nor was it alleged that breach was established merely by the fact of an intentional or criminal wrong having been committed by the respondent’s employee, CD. [55] The breadth of what was in issue on the pleadings in relation to the scope of the non- delegable duty was expanded by the defence and the reply. The defence relevantly pleaded an admission of [9] but advanced the additional pleaded allegation that the non-delegable duty “does not extend to a duty to prevent intentional or criminal activities.” The plaintiff’s reply merely asserted that the plaintiff “joins issue in respect of the caveat expressed therein that the duty does not extend to a duty to prevent intentional or criminal activities.” [56] The result was that it was literally in issue on the pleadings whether the defendant owed the plaintiff a non-delegable duty of care which extended to encompass a duty to prevent intentional or criminal activities. But the appellant had not advanced a positive case that proof of CD’s wrongdoing would be sufficient of itself to establish the breach of duty on which her action was founded. That case was not litigated at the trial. It was neither the subject of the appellant’s opening remarks nor her closing submissions. Nor was it addressed in the primary judge’s reasons. [57] Curiously, the respondent did not oppose the amendment to the notice of appeal to permit appeal ground 4 to be raised. Had it done so, and the question of leave been argued, I would have required convincing that this argument should be permitted to be introduced for the first time on appeal. I would have shared the concerns expressed by the High Court in analogous circumstances in Bird v DP (a pseudonym).42 [58] In any event, I observe that the appellant concedes that the primary judge and this Court are bound by the decisions of the High Court in New South Wales v Lepore43 and Prince Alfred College v ADC44 “that a non-delegable duty cannot arise for an action based upon intentional wrongs by delegates”.45 On that basis, the appeal 42 Bird v DP (a pseudonym) (2024) 98 ALJR 1349 at [41]-[42] and [254]–[256]. 43 New South Wales v Lepore (2003) 212 CLR 511. 44 Prince Alfred College v ADC (2016) 258 CLR 134. 45 See Bird v DP (a pseudonym) (2024) 98 ALJR 1349 at [42]: Prince Alfred College v ADC (2016) 258 CLR 134 at [81]. See, to similar effect, Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72. -- 20 of 21 -- 21 ground 4 should be dismissed without any further examination by this Court. The significance of the lack of any exploration of the question at trial may be a matter for the High Court in the event that the appellant seeks special leave to appeal from the decision of this Court. Conclusion [59] The appeal must be dismissed, with costs. [60] BROWN JA: I agree that for the reasons given by Bond JA, each ground of appeal fails and that the appeal must be dismissed, with costs. [61] CROW J: I agree with the reasons of Bond JA. -- 21 of 21 --