In the recent matter of BYM v The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2) [2024] QSC 106, the plaintiff, BYM (a pseudonym), commenced a claim against the defendant, The Corporation of The Trustees of The Roman Catholic Archdiocese of Brisbane (No 2), in relation to historical sexual abuse suffered by the plaintiff whilst she was a student at EF (name of State school redacted) by a groundsman CD (a pseudonym).   

The claim arose from allegations of child sexual abuse on school grounds. The plaintiff claimed damages for psychiatric injury from an alleged sexual assault by the groundsman, CD, on the basis of vicarious liability and/or negligence. In this matter, quantum had been agreed between the parties, but liability remained in issue. At the trial hearing, there were five remaining issues: 

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

The plaintiff’s claim was dismissed. Whilst the Court did not find that the plaintiff was dishonest (at [315]), the trial judge was not satisfied that the assault occurred as alleged. 

As to vicarious liability, the judge provided that defendant could have been vicariously liable for the assault if the plaintiff established 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 plaintiff (at [355]). However, it was found that CD’s role was found to be that of a groundsman and that did not place him in a position of intimacy with the students (at [347]). 

Potential direct liability of the defendant was also considered by the Court, having regard to the date of the alleged assault (being in 1999). It was found that there were policies in place as to general risk of abuse, but there was no evidence of any known or particular risk (at [356]). 

In respect of whether a Grade 3 student ought not to have been permitted to go to the toilet without being accompanied by another child breached the duty of care, the Court found that the plaintiff did not lead any positive evidence to establish that requiring a Grade 3 student to be accompanied by another student when going to the toilet from class was a practice at the relevant time or that it was reasonable (at [367]). The trial judge therefore held that the plaintiff had not established that the defendant failed to exercise reasonable care for the safety of the plaintiff as a student, in respect of the foreseeable risk of her suffering psychiatric injury from assault on the school grounds. 

As above, ultimately, on 30 May 2024, the Queensland Supreme Court made dismissed the plaintiff’s claim. The parties are to be heard further in relation to costs.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to Littles Lawyers today. 

Further Abuse Law information and case law updates can be found on our website.  

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