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

In Davey v Want [2026] NSWCA 12, the NSW Court of Appeal confirmed an important principle in civil litigation: a court may accept that a plaintiff is honest, yet still find that the evidence does not satisfy the civil standard of proof.

The decision highlights the continuing forensic challenges in historic abuse claims, where allegations are made many decades after the events said to have occurred and where liability depends almost entirely on the reliability of human memory.

The case arose from allegations of sexual abuse said to have occurred in the early 1970s. The appellant alleged that the respondent sexually abused her on two occasions, when she was aged between five and seven and he was 17 or 18 years old. The respondent denied the allegations.

At first instance, the District Court dismissed the claim. The primary judge accepted that the appellant was a “witness of truth” who genuinely believed the events occurred. However, the Court was not satisfied that her recollection of events was sufficiently reliable or accurate to meet the civil standard of proof, having regard to the seriousness of the allegations and the passage of time.

The appellant contended that the primary judge had erred by failing to give sufficient weight to the plaintiff’s credibility and honesty when determining whether she had discharged her onus of proof.

The appeal required close consideration of the principle in Briginshaw v Briginshaw (1938) 60 CLR 336. While civil cases are decided on the balance of probabilities, Briginshaw recognises that courts must exercise caution when assessing serious allegations. The more serious the allegation, the more careful the scrutiny of the evidence is required before findings are made.  

Importantly, Briginshaw does not raise the standard of proof. Rather, it directs attention to the quality, reliability and persuasiveness of the evidence relied upon to meet that standard. This principle has particular relevance in historical abuse claims, which often rely on a plaintiff's recollection many years after the events, often without corroborating or contemporaneous evidence.  

The Court of Appeal (Bell CJ, Stern JA and Griffiths AJA) dismissed the appeal and held the primary judge had not erred in his approach to the evidence or the applicable legal principles.

The Court reaffirmed the critical distinction between honesty and reliability. A witness may be truthful and sincere, yet their memory may still be affected by the passage of time, the influence of subsequent experiences, or inconsistencies when tested against other evidence. The Court accepted that the primary judge was entitled to conclude that, despite the appellant’s sincerity, her evidence was not sufficiently reliable to establish that the alleged abuse occurred.

The Court also addressed the primary judge’s reference to Longman v The Queen (1989) 168 CLR 79, a criminal case concerning delayed complaints. The Court confirmed that the underlying observation in Longman, that the longer the delay between an event and its recall, the greater the potential for error, can be relevant in civil proceedings. The trial judge had not applied a criminal standard or warning but had appropriately considered the forensic disadvantage created by the passage of time.

A significant focus of the judgment was the fallibility of human memory. The primary judge had identified inconsistencies within the appellant’s account and between her evidence and other material, including aspects of her treating psychologist’s notes. These matters led to a conclusion that her recollection of events was “jumbled and confused.”

The Court of Appeal upheld that assessment. It emphasised the unavoidable forensic difficulties faced by both parties in historic abuse litigation, including the absence of objective evidence and the inability to test competing accounts against contemporaneous facts. In such cases, careful scrutiny of memory against uncontroversial facts and available records is essential.

The Court of Appeal’s full judgment can be read here.

• A plaintiff’s honesty or sincerity, of itself, does not establish liability. The evidence must still be sufficiently reliable and persuasive to meet the civil standard of proof.

• Briginshaw remains central to the assessment of historic abuse claims and reinforces the need for careful evaluation of serious allegations.

• Concepts drawn from Longman may be relevant in civil proceedings to recognise the forensic consequences of delay, without importing criminal standards.

• The Davey decision underscores the substantial evidentiary and forensic challenges inherent in proving events said to have occurred many decades earlier.

If you would like advice on managing historic abuse claims or evidentiary risk in civil proceedings, please contact our Institutional Risk & Liability team.