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

The High Court has dramatically shifted the landscape for the imposition of a non-delegable duty on organisations caring for children and other clearly vulnerable individuals, making it easier for organisations to be held legally liable for the tortious conduct of their delegates (irrespective of whether they are employees at law), including in respect of intentional criminal conduct.

The joint judgment in the plurality decision of the High Court in AA clearly reflects a shifting of the burden of responsibility for ensuring the safety of children and other clearly vulnerable individuals onto institutions.

The expectation is that institutions can implement (and should have in the past implemented) systems such as to ‘weed out or give early warning signs of potential offenders, deter misconduct by conducting unannounced inspections, prohibit teachers from seeing a pupil without the presence of another teacher …’ (at [41], per Gageler CJ, Jagot and Beech-Jones JJ).

However, the institution does not escape any liability for having implemented such systems. A non-delegable duty where liability is imposed for an intentional tort means that the institution will be held liable regardless of any systems that it implemented – essentially, if the fact of the intentional tort is proven, that is in and of itself proof that the system in place that was intended to prevent it was inadequate.

The High Court’s decision will clearly have an impact on the conduct of abuse cases moving forward, based on:

1. The imposition of a non-delegable duty in the care of children and other clearly vulnerable individuals (for example, adults with a disability and possibly, the elderly), including for intentional torts. Essentially, this is a form of strict liability that means that institutions cannot point to having no knowledge of the risk of harm by the perpetrator (which is a requirement for liability in negligence), as long as it was reasonably foreseeable that the class of vulnerable individuals could be subject to personal injury if harm befell them. It also creates a wider liability than vicarious liability, which is only imposed where there was the occasion and the opportunity for the abuse to occur;
2. The categories of factual circumstances in which a non-delegable duty will be held to have existed are not fixed or closed and will need to be tested in fact-specific cases, at trial and undoubtedly in intermediate courts of appeal;
3. The liability of state and territory governments will be significantly increased where they have a relationship of care with a child, as non-delegable duty for intentional torts is likely to now apply in this case. This is likely to be very significant in out of home care cases, in circumstances where children are subject to a formal order in favour of the relevant child safety Minister and come to harm from a carer. There will no longer be the need to await the development of the law of vicarious liability in such cases, as the government will be found in breach of its non-delegable duty wherever the fact of the abuse and proof of harm is made out.¹ State and territory governments will now also have a significantly enlarged legal responsibility in historical institutional abuse cases, as for non-delegable duty it is no defence that they exercised the level of oversight that was appropriate for them to have done, having regard to the standards of the day (as is the case in negligence and in some jurisdictions, through legislation, with additional stricter limitations on recovery in such circumstances);²
4. The reduction of damages in New South Wales where non-delegable duty is made out, as damages will be assessed under the Civil Liability Act 2002 (NSW). This is only relevant in New South Wales, but may significantly reduce damages awards given the limitations imposed by the Civil Liability Act 2002;³
5. A more limited scope for challenges to claims on the basis of liability may result in more challenges based on the plaintiff’s account – that is, a contention that the abuse did not occur. Focus may also transfer to disputes between co-defendants – each of whom may owe a non-delegable duty – who may be liable for the same loss and damage, as to what is an appropriately ‘just and reasonable’ apportionment between them, for the plaintiff’s injuries and loss.

The decisions below – a recap

In 2024, the Plaintiff (AA) commenced proceedings in the Supreme Court of New South Wales against the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (the Diocese), claiming damages for personal injury sustained after he was allegedly physically and sexually abused by Father Ronald Pickin, an assistant parish priest at St Patrick’s Church, Wallsend and scripture teacher at Wallsend High School. AA alleged that Father Pickin invited him, 13/14 years old at the time, and other boys to the presbytery to play a poker machine and provided AA with beer before sexually abusing him.

The primary judge, Schmidt AJ, found that the abuse had occurred and that the Diocese had owed AA a duty of care. This duty was found to have been breached on grounds that two reports had been made in the diocese to other priests about minors having been sexually abused by priests. Notably however, only one complaint had been made to a priest about Father Pickin prior to AA being assaulted.

On appeal, the judgment was overturned, after Bell CJ and Ball JA concurred with Leeming JA’s finding that the Diocese did not owe a duty of care to AA. The unanimous finding was made on the basis that Father Pickin had incorrectly been identified as a parish priest rather than as an assistant priest. This error was significant as an assistant priest is subject to the direct authority of the parish priest but a parish priest is subject to the authority of the bishop of a diocese. Additionally, the incorrect assumption that Father Pickin was living alone instead of the fact that he was living with the parish priest was material as Father Pickin alone did not determine who he invited to the presbytery. That was relevant for both the factual underpinning of the findings that the sexual abuse occurred and also the basis for negligence.

Leeming JA identified further errors in fact-finding exercise in the primary judgment, which was agreed to by the other judges, though the impact of these errors was contested as between them.

Most importantly, the Court of Appeal unanimously held that regardless of findings as to whether the primary judge had a factual basis to accept AA’s account, the law in Australia simply did not recognise a non-delegable duty as extending to circumstances where a breach consists of an intentional wrong committed by a delegate. That important finding has of course, by virtue of the decision of the High Court of Australia, now been overturned.

1.  Prince Alfred College Incorporated v ADC [2016] HCA 37 at [80]-[81] ↩︎
2. See, for example, Willmot v State of Queensland [2024] HCA 42 at [49]-[50] ↩︎
3. See, for example, s43A of the Civil Liability Act 2002 (NSW) ↩︎