AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2

OVERVIEW

In a landmark judgment, the High Court of Australia (High Court or the Court) has held that the Catholic Diocese (the Diocese) breached a non‑delegable duty of care owed to a child who was sexually assaulted by a priest in 1969.

The majority of the High Court confirmed that a breach of a non‑delegable duty is not confined to negligence; it can extend to intentional wrongdoing on the part of a delegate (who does not have to be an employee at law) where the harm was reasonably foreseeable and arose in circumstances in which the institution had assumed responsibility for the child’s safety.

In reaching this conclusion, the Court re-opened and overturned the long‑standing position from New South Wales v Lepore (2003) 212 CLR 511 (Lepore), that that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act.

This decision has significant implications for cases relating to institutional liability and abuse.

*Warning: This article contains details about sexual assault or abuse which may be upsetting for some readers. Please take care when reading and discretion is advised.

BACKGROUND

The Plaintiff, AA (a pseudonym), was 13 years old in 1969 when he attended scripture classes taught by Fr Ronald Pickin. Fr Pickin invited AA and other boys to the parish presbytery on Friday evenings, where he provided them with alcohol and cigarettes and permitted them to gamble on a poker machine located in an area adjoining his bedroom.

It was alleged that Fr Pickin sexually assaulted AA on multiple occasions in that location, out of sight of others. Fr Pickin died in 2015.

AA issued proceedings in negligence against the Diocese.

NSW SUPREME COURT DECISION

At first instance, Schmidt AJ accepted AA’s account of the assaults and held that:

• The Diocese was vicariously liable for Fr Pickin’s wrongful acts of sexually assaulting AA. This decision was made prior to the High Court's decision of Bird v DP (a pseudonym) [2024] HCA 41 (Bird v DP).
• The Diocese owed AA a common law duty of care, which it breached through inaction on the part of the Bishop.
• Damages of AU$636,480 were awarded, calculated on the undisputed basis that the limitations on personal injury damages imposed by the Civil Liability Act NSW 2002 did not apply.

Although AA also contended that the Diocese owed a non-delegable duty, the primary judge did not determine liability on that basis.

NSW COURT OF APPEAL DECISION

The Diocese appealed the primary judge's decision which was subsequently overturned by the NSW Court of Appeal. 

The Court of Appeal unanimously held that the Diocese did not owe AA the common law duty of care identified by the primary judge because the risk of harm to the plaintiff was not foreseeable.

The Court applied Lepore, the prevailing authority that a defendant cannot be liable for breach of a common law non-delegable duty based on an intentional criminal act. Consequently, the Court of Appeal held that the Diocese could not owe a non-delegable duty in respect of an intentional criminal act committed by one of its priests.

AA accepted that the primary judge’s finding of vicarious liability could not stand in light of the High Court’s intervening decision in Bird v DP.

THE HIGH COURT APPEAL

The key issue the High Court determined was whether an institution can be liable for child sexual abuse committed by one of its "delegates" (in this case a priest) on the basis that it owed a non-delegable duty of care to the child. 

Non-Delegable Duty of Care

The majority of the High Court (Gageler CJ, Jagot and Beech-Jones JJ), together with Gordon, Edelman and Steward JJ, all agreed that a non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property so as to assume a particular responsibility for their or its safety. 

The High Court, Gageler CJ, Jagot and Beech-Jones JJ in the majority, held that the Diocese owed AA a non-delegable duty of care because the Diocese: 

• Placed Fr Pickin in the position of performing the functions of parish priest of the Diocese; and
• As part of the performance of those functions, required Fr Pickin to establish sufficiently familiar relationships with children to enable him to instruct them in their spiritual and personal growth as Catholics and created the circumstances in which he could do so; 
• Knew that children, by reason of their immaturity, were particularly vulnerable to many kinds of harm; 
• Alone had practical capacity to supervise and control Fr Pickin's performance of his functions as parish priest; and 
• Ought reasonably to have foreseen the risk of harm of personal injury to a child under the care, supervision or control of a parish priest such as Fr Pickin, including from an intentional criminal act of the priest or a third party (including an act of sexual abuse of the child).

The High Court noted that a non-delegable duty requires the duty-holder not merely to take reasonable care but to ensure that reasonable care is taken by its delegate/s.

In framing the duty, the Court found that, in 1969, the Diocese owed a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child.

Intentional Acts and Non-Delegable Duty of Care

The High Court upheld the primary judge's findings that Fr Pickin abused AA. 

The majority of the High Court held that the criminal nature of the act does not, as a matter of logic, remove it from the scope of a non-delegable duty. The relevant inquiries are whether:

a. A relationship of authority, supervision, trust, care or control existed; and

b. The harm was of a foreseeable kind within the scope of responsibility assumed.

The majority observed that the reasoning in Lepore had “stultified the coherent development of principle” and should be overturned to the extent it excluded intentional criminal acts from the operation of non-delegable duties.

Breach of Non-Delegable Duty of Care

With respect to breach, in 1969 AA was 13 years old. While at the presbytery, he was under the care, supervision or control of the only adult present, Fr Pickin. AA was there because Fr Pickin was performing functions of a diocesan priest, teaching scripture at AA’s school, inviting AA in his capacity as a priest, and being trusted by AA’s parents because of his role. It was in this context that Fr Pickin sexually assaulted AA.

The High Court majority found that, by virtue of Fr Pickin’s sexual assaults in 1969, the Diocese was liable to AA for breach of a non-delegable common law duty of care owed to him at that time.

In reaching this conclusion, the High Court re-opened and overturned the majority finding in Lepore that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act. The High Court held that the acts of Fr Pickin and the harm suffered by AA fell within the scope of the Diocese's non-delegable duty.

Damages and Application of Civil Liability Act (NSW) 2002

Interestingly, the majority of the High Court also concluded that the limitations on personal injury damages imposed by the NSW Civil Liability Act applied to the determination of the extent of the liability of the Diocese. As a result, damages were reduced from AU$636,480 to AU$335,960 (comprising AU$90,480 for economic loss and AU$245,480 for non-economic loss).

This is only relevant in New South Wales but may significantly reduce the damages awards in this jurisdiction for claims relating to breach of non-delegable duty. 

IMPLICATIONS AND KEY TAKEAWAYS

The decision broadens the circumstances in which institutions may be held legally liable for historical child sexual abuse. Implications of the decision include: 

• Institutions may be directly liable for child sexual abuse committed by delegates who were in positions of authority (but not necessarily employees at law). 
• Where an institution or individual assumes responsibility for the care, supervision or control of a child, liability may extend to intentional harm committed by a delegate, so long as the risk of such harm was reasonably foreseeable. 
• The Court’s reasoning also indicates that foreseeability may be established in contexts involving the supervision of children.
• Institutions cannot point to having no knowledge of risk of harm by the perpetrator or appropriate systems to care for children and monitor delegates. A non-delegable duty where there is liability for intentional tort means that the institution will be liable regardless of their systems if the tort is proven. 
• This may mean that there is greater scrutiny on liability evidence and whether the intentional tort will be proven. 

For further advice on the topic, please contact Emma Dawes, Partner, of the Melbourne office.

The author acknowledges the assistance of Stella Pinirou, clerk, in the preparation of this article.