Article by Evelynn Wang, paralegal

Background

Supreme Court

In 2024, AA brought proceedings against the Catholic Church (Diocese of Maitland–Newcastle) alleging negligence, breach of a non-delegable duty of care and vicarious liability for sexual assaults said to have been committed by Father Pickin in 1968.

Father Pickin was a priest who taught scripture at the local high school, which was attended by AA. AA alleged that Father Pickin invited him and his schoolfriend, Mr Perry, to his room in the presbytery, supplied alcohol and cigarettes, and sexually assaulted him while he was heavily intoxicated.

The primary Judge found that Fr Pickin had sexually assaulted AA multiple times. It was held that the Diocese was vicariously liable for Fr Pickin’s wrongful acts and that AA was owed a common law duty of care which was breached by inaction and a lack of precautions. However, there was no ruling in respect of non-delegable duty.

Court of Appeal

On appeal, the judgment was overturned. It was determined that the finding of vicarious liability could not stand in light of the High Court’s decision in Bird v DP,[1] which held that the Diocese was not vicariously liable for the actions of their priests due to lack of an employment relationship.

The Court further held that the Diocese did not owe a non-delegable duty to AA, consistent with New South Wales v Lepore[2] which ruled that there could be no non-delegable duty in respect of harm caused by an intentional criminal act.

 

High Court decision

In a pivotal ruling, the High Court held that the Diocese was liable for breach of a non-delegable common law duty of care. The judgment entered by the primary judge in the Supreme Court was restored, but with a reduction in damages imposed by the limitations in the Civil Liability Act 2002 (NSW).

The non-delegable duty was determined on multiple bases, one of which being that there is little to distinguish between the position of the Diocese in 1969 from that of a school authority.[3] This outcome presents an alternative avenue to victims seeking compensation, removing the hurdle set by the judgment in Bird.

The High Court also overturned the decision made in Lepore, determining that intentional criminal acts do not preclude liability for non-delegable duties.

Practical Impacts

There is now a recognised non-delegable duty of care imposed on organisations that care for children or other clearly vulnerable individuals.

As a result, an institution may be held liable for the conduct of their delegates in the absence of an employment relationship, even if it had systems in place intended to prevent the harm. It effectively operates as a form of strict liability, meaning institutions cannot avoid responsibility by arguing that they lacked knowledge of a specific risk, as would ordinarily be required in negligence claims. Instead, it is sufficient that it was reasonably foreseeable that the class of vulnerable persons under the care of the organisation could be subject to personal injury if harm occurred. In effect, proof of the intentional tort itself is taken to demonstrate that the preventative system was inadequate.

Where a non-delegable duty is established in New South Wales, any damages awarded are to be assessed in accordance with the Civil Liability Act 2002 (NSW).

The decision in this case represents an expansion of liability with respect to organisations and institutions who have the care of children. Such institutions could include religious organisations, schools, sporting organisations and authorities who place children into care.

[1] [2024] HCA 41.

[2] [2003] HCA 4.

[3] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, at 3.