By: Paul Spezza, Cassandra Wills, Dominique Fordyce, Ashley Shuttleworth and Ellen Bobbermien

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

At a glance

• The Court of Appeal of Queensland has provided further clarification on when an employer will be vicariously liable for the criminal acts of an employee, particularly in the context of ancillary school staff.
• The Court of Appeal affirmed that the key inquiry is whether the particular features of employment, being authority, power, trust, control, and the ability to achieve intimacy, create a sufficiently strong connection between the role of the relevant employee and the wrongful act such that the employment provides the occasion, not mere opportunity, for the misconduct.

Background

In 2011, BYM (30 years of age) issued proceedings against the Archdiocese of Brisbane (Archdiocese) in the Supreme Court of Queensland seeking damages for personal injuries as a result of sexual assault which allegedly occurred in 1999. The assault was allegedly perpetrated by the school groundskeeper (CD) in a toilet block.

Primary judge findings

At first instance, the primary judge found:

• the alleged assault did not occur; and
• even if the assault had occurred, the Archdiocese would have not been vicariously liable because:
  • CD’s role as a groundsman did not place him in a position of intimacy, authority or control over students;
  • while some interaction with students occurred, it was incidental and not comparable to the relationships held by teachers, principals, or counsellors;
  • the proximity of CD’s groundsman shed to the toilet block merely afforded opportunity, not occasion, for wrongdoing; and
  • there was no basis to conclude that BYM was exposed to a peculiar or heightened risk because of CD’s employment.

The appeal

BYM appealed on three grounds:

• the primary judge erred in finding that the assault did not occur;
• the primary judge erred in concluding that CD’s role did not place him in a position of authority, power, trust, control and the ability to achieve intimacy with students;
• if the assault were established, the Archdiocese breached its non‑delegable duty of care.

Findings on vicarious liability

The Court of Appeal of Queensland (Bond JA, Brown JA and Crow J) unanimously dismissed the appeal.

The Court held that BYM’s submissions on appeal were not demonstrative of any error in the primary’s judge’s factual findings or legal conclusions on vicarious liability.

Emphasis by the Court was placed on the reasoning in CCIG Investments v Schokman (2023) 278 CLR 165, that inquiry into the relevant features of employment is directed to determining whether there is a sufficiently strong connection between the employee’s role and the wrongful act – something more than the mere opportunity for wrongdoing.

Key takeaways

The decision in BYM underscores that vicarious liability remains a fact‑intensive enquiry focused on the specific features of the employment relationship. Key take aways from this decision include:

• Mere interactions between staff members and students do not automatically give rise to vicarious liability.
• Ancillary and non-teaching staff are unlikely to satisfy the threshold of “authority, power, trust, control and ability to achieve intimacy” unless the role involves close, authoritative or intimate engagement with students.
• The employment relationship must provide the occasion, not mere opportunity, for the misconduct.

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