*Disclaimer: This article contains details about sexual abuse which may be distressing for some readers. Reader discretion is advised. 

On 27 April 2026, the Supreme Court of the Northern Territory in AB v Northern Territory of Australia [2026] NTSC 22 delivered a significant reminder of the evidentiary challenges in historical child abuse litigation, particularly where allegations are serious, uncorroborated and turn on issues of credibility.

The Court dismissed a claim brought by a former juvenile detainee alleging sexual abuse by a youth justice officer, notwithstanding concessions by the Northern Territory as to liability if the conduct were proven. The decision underscores the continued significance of credibility, consistency and the Briginshaw approach to proof in cases involving serious misconduct.

The plaintiff alleged that, while detained at the Don Dale Youth Detention Centre and later the Wildman Wilderness Camp, he was groomed and sexually assaulted by a female Youth Justice Officer (RT). The plaintiff turned 18 in December 2004. 

The claim against the Northern Territory was advanced on three bases: 

1. vicarious liability for RT’s alleged assaults; 

2. vreach of a non-delegable duty of care; and 

3. breach of a common law duty of care. 

Importantly, the Northern Territory conceded that it would be vicariously liable if the alleged conduct were established and accepted that it owed a duty of care, albeit not in the terms of that pleaded by the plaintiff. 

Accordingly, the case turned entirely on whether the plaintiff could prove that the alleged abuse occurred.  

The Court ultimately concluded that the plaintiff failed to discharge the onus of proof. The claim was dismissed and judgment entered for the Northern Territory, with costs awarded against the plaintiff. 

Credibility was decisive

The plaintiff was the sole direct witness to the alleged abuse. In those circumstances, his credibility was central.

Burns J found that the plaintiff:

• had lied on oath in several respects;

• gave inconsistent accounts over time; and

• had, on occasion, exaggerated aspects of the allegations for personal benefit.

These findings materially undermined the reliability of his evidence.

Inconsistencies and implausibility

The Court identified numerous inconsistencies in the plaintiff’s account, including:

• variations in the timing, duration and nature of alleged abuse;

• conflicting descriptions across pleadings, statements, expert reports and oral evidence; and

• the abandonment or alteration of key allegations (including a shift from allegations spanning years to a period of approximately one month).

In addition, aspects of the allegations were found to be inherently implausible, particularly:

• the alleged conduct occurring in highly supervised environments;

• the absence of contemporaneous complaints; and

• the suggestion that RT engaged in highly risky conduct without any credible explanation or attempt at concealment.

As Burns J observed at [343]

"On the other hand, if RT did engage in the alleged conduct, her actions were extraordinarily risky and out of character for her... To have engaged in brazen sexual assaults on a detainee in the centre ran a high risk of discovery and inevitable consequences."

Documentary and circumstantial evidence

The contemporaneous records and witness evidence did not support the plaintiff's case. Rather, they:

• failed to corroborate the alleged incidents;

• in some respects, contradicted aspects of the plaintiff’s account; and

• supported alternative explanations (e.g. the prolonged “dump run” being attributable to ordinary operational reasons).

As Burns J observed at [25]:

"We are concerned with probabilities, not with possibilities."

This decision highlights several important considerations for organisations managing institutional risk:

• Credibility is paramount: In uncorroborated historical abuse claims, the reliability of the plaintiff's evidence will often be determinative.

• Consistency matters: Variations across pleadings, witness statements and oral evidence may significantly undermine a claim.

• The Briginshaw principle continues to apply robustly: Serious allegations require clear, cogent and persuasive evidence, notwithstanding the civil standard of proof.

• Contemporaneous records are highly influential: Institutional records can materially impact findings on plausibility and proof.

• Concessions do not displace proof: Even where duty and vicarious liability are accepted, the plaintiff must still establish that the abuse occurred.

This decision aligns with the recent New South Wales Court of Appeal decision in Davey v Want [2026] NSWCA 12, which reaffirmed that findings of historical sexual abuse will often turn on the reliability, rather than the honesty, of recollection, particularly where allegations arise many years after the events in question. The Court in Davey upheld the primary judge’s conclusion that the plaintiff had not discharged the onus of proof, emphasising that even genuinely held memories may be affected by confusion, inconsistency and the fallibility of long-term recall and that such deficiencies may prevent the Court from attaining the requisite level of satisfaction under the civil standard.

Taken together, AB and Davey reflect an increasingly clear judicial approach: while courts remain acutely conscious of the barriers faced by survivors of historical abuse, they will not make findings of liability where the evidence does not meet the standard required by Briginshaw.

In practical terms, plausibility alone is insufficient. Courts require coherent, consistent and persuasive evidence before finding that serious misconduct occurred.

For more information on the matters covered in this article or to discuss their implications, please contact our Institutional Risk & Liability team.