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

The High Court (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ in majority with Steward and Gleeson JJ dissenting) has handed down its long awaited judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle [2026] HCA 2. The decision significantly expands the circumstances in which institutions can be held legally responsible for historical child sexual abuse. 

The Court held that a Catholic Diocese owed a non-delegable duty of care to a child who was abused by a priest in 1969 and this duty was breached by the intentional criminal conduct of its clergy.

In doing so, the High Court overruled part of its earlier decision in New South Wales v Lepore [2003] HCA 4. It clarified that institutions entrusted with the care of children may be directly liable for breach of a non-delegable duty of care where the abuse was an intentional criminal act of a delegate and the harm to the child was foreseeable.

• The plaintiff (AA) was sexually abused on multiple occasions in 1969, when he was aged 13, by a Catholic priest, Fr Pickin. 

• Fr Pickin gave scripture classes at a state high school attended by the plaintiff.

• The abuse occurred at the presbytery, where the priest lived and to which he had invited AA and other boys.

• Fr Pickin passed away in 2015 and was never charged for the alleged abuse, nor had an opportunity to respond to the allegations.

The primary judge, Schmidt AJ, awarded the plaintiff $636,480, finding that:

• the sexual abuse occurred as alleged;

• the Diocese owed the plaintiff a common law duty of care; 

• the Diocese breached its duty of care based on a lack of precautions taken to address a known risk of child sexual abuse within the Diocese; and

• the Diocese was vicariously liable for the sexual assault committed by Fr Pickin.  

The Diocese appealed the primary judge's decision which was subsequently overturned by the NSW Court of Appeal (Bell CJ, Leeming JA and Ball JA). The court found that:

• the plaintiff's account of the abuse did not meet the requisite standard of proof noting clear inconsistencies in his evidence;

• the Diocese did not owe a duty of care to the plaintiff because the risk of harm to the plaintiff was not foreseeable;

• relying on Lepore, a defendant cannot be liable for breach of a non-delegable duty based upon intentional criminal acts; and 

• AA accepted the finding in respect of vicarious liability could not stand following the High Court's recent decision in Bird v DP [2024] HCA 41.

A central issue the High Court determined was whether an institution can be liable for child sexual abuse committed by one of its clergy on the basis that it owed a non-delegable duty of care to the child. 

This raised two critical questions:

1. Does a Diocese owe a non-delegable duty of care to children under the care, supervision or control of its clergy?

2. Can such a duty be breached by intentional criminal conduct, such as sexual abuse?

Recognition of non-delegable duty

A non-delegable duty to ensure reasonable care is taken is a "special" kind of common law duty of care in negligence, recognised as arising in relationships of "special dependence or vulnerability" such as school and pupil or hospital and patient. 

In the particular circumstances of this case, the majority held that the Diocese owed AA a non-delegable duty of care because it: 

• placed Fr Pickin in the position of performing the functions of parish priest of the Diocese;

• as part of those functions, required him to establish sufficiently familiar relationships with children 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 capacity to supervise and control Fr Pickin's performance of his functions as parish priest; and

• ought reasonably to have foreseen the risk of personal injury to a child under the care, supervision or control of a parish priest, including injury arising from an intentional criminal act of the priest or a third party (including sexual abuse).

Intentional criminal acts can breach a non-delegable duty delegable duty

The High Court upheld the primary judge's findings that Fr Pickin abused AA, rejecting the factual errors identified by Leeming JA. 

On that basis, the Diocese was held to have breached its non-delegable duty of care owed to ensure that reasonable care was taken to prevent AA from suffering foreseeable personal injury while under the care, supervision or control of a priest of the Diocese carrying out his purported functions. 

The Court held that breach of a non-delegable duty is not confined to negligent acts. It may be breached by intentional wrongdoing, including sexual abuse. To the extent that New South Wales v Lepore held otherwise, it was overruled. 

The Court emphasised:

• a non-delegable duty is a direct duty of the institution, not a form of vicarious liability; 

• the duty is to ensure reasonable care is taken; and

• an intentional sexual assault is, by its nature, a failure to take reasonable care.

As Gordon J succinctly observed at [276]: 

"…where the non-delegable duty is to ensure reasonable care for the safety of a child, the duty-holder does not escape liability when the delegate fails to take reasonable care of the child by an intentional act in circumstances where the delegate should have foreseen the likelihood of injury to the child."

Foreseeability and assumed responsibility 

The High Court emphasised that its decision does not render institutions insurers against all harm suffered by children. 

Liability remains carefully confined by two key limits:

• the harm must be reasonably foreseeable; and 

• the harm must occur in circumstances where the institution has assumed responsibility for the child’s safety.

In the context of AA, sexual abuse was treated as a foreseeable form of personal injury where adults are placed in positions of trust, authority and control over children. This does not mean all injuries are foreseeable. Highly unusual, remote or unrelated harms fall outside the duty, with foreseeability operating as an important gatekeeping mechanism.

The more significant limit on liability is whether the institution has assumed responsibility for the child’s safety. A non-delegable duty arises only where an institution has undertaken or is taken to have undertaken, the care, supervision or control of a child in circumstances where the child (and their parents) reasonably rely on the institution to provide protection. 

In AA, that responsibility arose because:

• the Diocese placed the priest in a position of authority over children;

• the priest’s relationship with the child existed because he was performing (or purporting to perform) his priestly role;

• parents permitted the child to be under the priest’s control because of that role; and

• the Diocese alone had the capacity to supervise and control the priest.

By contrast, institutions do not assume responsibility in every interaction involving an employee or officeholder. Where a child’s presence is accidental, purely social or unrelated to the person’s institutional role, the necessary assumption of responsibility may be absent. This ensures that liability remains relationship based, not universal. 

Damages and statutory caps

Although liability was established, the High Court reduced the damages award from $636,480 to $335,960 by applying the statutory limits prescribed under the Civil Liability Act 2002 (NSW).

Where liability is based on breach of a non-delegable duty (direct liability), statutory damages caps may apply, depending on the jurisdiction and legislative framework. This may differ from vicarious liability claims for sexual assault, where statutory exclusions can remove caps altogether.

Dissent

In dissent, Steward and Gleeson JJ would have dismissed the appeal and upheld the decision of the NSW Court of Appeal. Their Honours rejected the expansion of non-delegable duties, warning that the recognised categories should not be expanded without compelling justification. They cautioned that extending the doctrine to intentional criminal acts in a diocese-parishioner context risks blurring the distinction between direct institutional responsibility and vicarious liability.

The High Cout's judgment will have ripple effects across the Australian legal landscape as it:

1. Expands institutional liability beyond negligence, allowing direct liability for child sexual abuse committed by delegates placed in positions of authority.

2. Shifts the analytical focus away from institutional knowledge or fault, towards whether:
   a.   the institution placed the wrongdoer in a position of authority, trust or control;
   b.   the child was under that person’s care or supervision because of their institutional role; and
   c.   the institution assumed responsibility for the child’s safety.

3. Enables survivors to rely on non-delegable duties where vicarious liability cannot be established, removing the longstanding barrier created by Lepore.

4. Highlights that statutory damages caps may apply where liability is based on breach of a non-delegable duty.

5. Increases exposure for institutions facing historic abuse claim, particularly where authority structures, safeguarding gaps or reliance on clergy, volunteers or non-employees are present.

Overall, the High Court’s decision in AA represents a major recalibration of institutional responsibility for child abuse. Institutions are now judged less by what they knew and more by the relationships of authority and trust they created.

For more information on this judgment or to discuss its implications, please contact our Institutional Risk & Liability team.