By: Meisha Tjiong, Cindy Lim and William Yeo

AA v the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

This morning the High Court of Australia delivered a significant judgment expanding the principles of non-delegable duties and having wide-ranging impact for child abuse claims. 

Background

AA commenced proceedings in the Supreme Court of NSW seeking damages from the Diocese of Maitland-Newcastle (Diocese) arising from sexual assaults in 1969. Fr Pickin taught scripture at the State high school AA attended and invited AA, along with other boys, to the presbytery on Friday nights where Fr Pickin lived. AA went to the presbytery because Fr Pickin was a priest. It was alleged that on Friday nights when no-one was around, Fr Pickin would give cigarettes and alcohol to AA, aged 13 years old, and a school friend, Mr Perry in the presbytery. On occasions when AA was extremely drunk, Fr Pickin would send Mr Perry out to buy cigarettes and then sexually assault the Plaintiff. 

Fr Pickin, the parish priest and the Bishop had passed away well before the trial. Mr Perry gave evidence to the effect that there were a number of boys present at the Church on Friday nights, he had never seen AA extremely drunk and he was never sent out to buy cigarettes. 

At first instance, Schmidt AJ accepted AA’s evidence and found the sexual assaults occurred. He relied heavily on AA’s “vivid” recollection and tendency evidence from two other men demonstrating Fr Pickin had a sexual interest in boys. The Diocese was found negligent and vicariously liable for the assault committed by Fr Pickin. Judgment was entered in favour of AA and awarded the sum of $636,840. 

On appeal, the parties agreed that the finding of vicarious liability could not stand, having regard to the subsequent decision of the High Court in Bird v DP [2024] HCA 41 (Bird). The Court of Appeal (Leeming JA, Bell CJ) held that the fact-finding process was miscarried. However, their Honours differed on the need to analyse the fact-finding process and the impact of any inaccuracies. Applying New South Wales v Lepore (2003) 212 CLR 511 (Lepore), the Court of Appeal unanimously (Bell CJ, Leeming and Ball JJA) held that the law in Australia did not recognise a non-delegable duty that could be breached by a defendant where a delegate (such as Fr Pickin) had committed an intentional wrong. 

Appeal to the High Court

In its decision today, the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) allowed AA’s appeal and restored the trial judgment, substituting a reduced award of damages in light of the Civil Liability Act 2002 (NSW) (CLA). 

Significantly, the High Court held that the Diocese owed AA a non‑delegable common law duty of care stating there is no principled reason to exclude intentional criminal conduct from the scope of a non‑delegable duty. In doing so, it overturned Lepore to the extent it had precluded non‑delegable duties from extending to intentional criminal acts. Notably: 

1. The majority (Gageler CJ, Jagot and BeechJones JJ) concluded, on the facts found at trial, the Diocese owed a non-delegable duty to ensure reasonable care was taken to prevent reasonably foreseeable personal injury to a child under the care, supervision or control of a priest while the priest was purportedly performing functions of a diocesan priest; and that duty encompassed harm caused by the priest’s intentional assaults. Gordon J and Edelman J agreed as to the existence and breach of a non-delegable duty (though with differing routes in principle), and Steward J dissented on duty (but accepted that the abuse occurred); Gleeson J would have dismissed the appeal, disagreeing that the requisite special relationship existed. 

2. Liability turned on the relationship between the priest and child created by the Diocese. The Diocese’s position was treated as analogous to a school authority’s duty to pupils: where an institution places an individual in authority over vulnerable children for its own purposes, it must ensure reasonable care is taken for their safety. The Diocese placed the priest in a role of authority and trust over children, creating the circumstances in which the abuse occurred and engaging the Diocese’s responsibility to ensure care was taken. 

3. The Diocese therefore owed AA a non-delegable duty of care to ensure that reasonable care was taken to protect him from reasonably foreseeable personal injury while he was under the care, supervision or control of a priest performing diocesan functions. That duty could be breached by intentional criminal acts (including sexual abuse) of the duty-holder or their delegate. 

4. The High Court rejected the Court of Appeal’s criticism of the trial judge’s fact-finding and restored the finding that AA had been sexually assaulted by Fr Pickin. 

5. Fr Pickin’s sexual assaults of AA meant that the Diocese beached its non-delegable duty, causing AA the harm as found by the trial judge. It was not material that the harm did not result from an act or omission of the Diocese itself; the question was whether the harm was caused by the delegate’s act within the scope of the non-delegable duty. 

6. The limitations on personal injury damages imposed by the Civil Liability Act 2002 (NSW) applied to a breach of non-delegable duty, and therefore damages were reduced to $335,960. 

Implications

This is a landmark decision on institutional liability for child sexual abuse claims and creates a pathway independent of vicarious liability. While the principles of vicarious liability are preserved in Bird, intentional criminal acts no longer sit outside non‑delegable duties and the decision in AA materially widens potential defendants in child abuse claims. 

The High Court decision means that institutions like religious entities, government entities, and sporting and community organisations owe a non‑delegable duty to ensure reasonable care is taken in circumstances where they undertake the care, supervision or control of children and that this duty can be breached by intentional criminal acts of their delegates such as priests, employees, contractors, volunteers, and foster carers. 

Responding to child abuse claims will require thorough factual investigations into the role and functions appointed to the alleged offender which led to the child abuse . In this decision, there was a relationship between the Diocese and AA, and Fr Pickin did have a pastoral role and authorised contact with AA. However there remain many claims where the relationship between institution and claimant and offender is less clear. 

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