The NSW Court of Appeal has delivered a significant judgment, overturning the Supreme Court of NSW's judgment which had found a Diocese directly and vicariously liable for child sexual abuse by a Catholic priest. The Court of Appeal has provided guidance on the evidentiary onus that is placed on plaintiffs, applied the High Court of Australia's landmark judgment in Bird v DP (a pseudonym) [2024] HCA 41, and overturned a finding in respect of a duty of care. 

The plaintiff, known as AA, brought an action against the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle seeking damages for alleged sexual assaults by a then assistant priest at St Patrick's Catholic Church, Wallsend in 1969. 

The Diocese did not admit the abuse, and denied that it owed a duty of care to AA. The Diocese denied any vicarious liability on the basis that the Priest was not an employee and that it did not place him in any position of power, control or authority over AA.

The plaintiff alleged that, on some Friday nights, the Priest would invite AA and his friend, and, on occasion, other boys, to the presbytery where the Priest lived. The Priest would invite AA and other boys to play on an old poker machine in the presbytery and provide them with alcohol and cigarettes.

AA alleged that in the context of being "paralytic drunk", he fell unconscious. When coming to, he alleged the Priest assaulted him. AA's friend, Mr Perry, provided evidence that contradicted the plaintiff in a number of key respects.

At first instance, the Supreme Court of NSW found that AA was sexually abused, that the Diocese owed (and subsequently breached) a duty of care, and that it was vicariously liable for the sexual assaults, with damages awarded to the plaintiff.

The Diocese appealed the Supreme Court Judgment at first instance. AA accepted that the Supreme Court judgment in respect of vicarious liability could not stand in light of Bird v DP and instead sought to uphold the judgment by reason of a non-delegable duty rendering the Diocese liable for the assaults, or, in the alternative, maintain the findings of the primary judge that the Diocese was negligent in its duty of care owed to AA.

The appeal was allowed and heard before Bell CJ, Leeming JA and Ball JA on 27 February 2025.

The appeal was allowed and the Supreme Court's orders were set aside for three primary reasons: first, the findings of fact made by the primary judge could not stand; second, the judgment was based on an unsustainable view of vicarious liability; and third, the Diocese was not shown to have owed a duty of care.

Fact-finding

The Court of Appeal found that the primary judge did not address the clear inconsistencies in AA's account of the sexual assaults, including inconsistencies in AA's account and strong contradictory evidence of Mr Perry. At no stage was there consideration of the possibility that AA's account was a sincerely held but unreliable belief of what had occurred over half a century earlier. By majority, it was found that AA's account was "demonstrably unreliable", and the Supreme Court Judgment failed to give explicit weight to this. 

Despite there being no limitation period for historical child sexual abuse claims, the evaluation of evidence dictated by Briginshaw v Briginshaw (1938) 60 CLR 336 and s 140(2) of the Evidence Act 1995 (NSW) (and its State and Commonwealth equivalents), among others, is not modified and has not created a special regime in cases of historic sexual assault.

Duty of Care

The Court of Appeal found that no duty of care was owed to AA in 1969. While in the Supreme Court Judgment, it was held that Bishops and other senior members of "the Church" were aware of the risks of child sexual abuse, this was not supported by any evidence. In any event, alleged knowledge held by any particular priest is not to be taken as knowledge of the Diocese as a whole. The court commented that the statutory imposition of a prospective duty of care in Part 1B of the Civil Liability Act was a powerful consideration against a retrospective reformulation of judge-made law to impose a novel duty of care on the diocese.

Vicarious Liability

Not least surprising was that the appeal was allowed due to an unsustainable view of vicarious liability. On appeal, AA accepted that the Supreme Court Judgment, insofar as it was based on vicarious liability, could not stand in light of DP v Bird, delivered some eight weeks later. 

However, AA filed a Notice of Contention seeking to uphold the judgment by reason of a non-delegable duty rendering the Diocese liable for the priest's assaults. It was submitted by AA that Bird v DP did not address section 5Q of the Civil Liability Act 2002 (NSW), which addresses the liability in tort of a defendant for a breach of a non-delegable duty. However, this was rejected, citing State of NSW v Lepore [2003] HCA 4, as the understanding of a non-delegable duty “should not be extended to include responsibility for intentional defaults by delegates".

The NSW Court of Appeal has confirmed that the high standard of proof per Briginshaw and the state and territory equivalents of the Evidence Act are not modified for actions that have no limitation period. 

In the words of Chief Justice Bell, "[g]reat care must be taken in individual cases to exclude generalised views which may have been formed (outside the evidence in the case) about particular institutions and their degree of knowledge of serious misconduct."

The decision also demonstrates the impact of Bird v DP on causes of action based on vicarious liability. For more information on that judgment, you can read our recent article here. Otherwise please reach out to our Institutional Risk & Liability Insurance team to discuss the implications of this matter.