Non-delegable duty expanded: High Court decision reshapes institutional liability

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

In a landmark decision (both in abuse cases, and for non-delegable duty scenarios more broadly), the High Court has overturned the majority decision in New South Wales v Lepore (2003) 195 ALR 412 (Lepore) - which had long stood for the proposition that there can be no common law non-delegable duty of care in respect of harm caused by an intentional criminal act. The High Court has held that a non-delegable duty of care can be breached by the intentional infliction of harm.

In light of this ruling, where a duty holder assumes the care, supervision or control of a child, it is likely to be held liable for breach of a non-delegable duty where:

• a delegate commits intentional wrongdoing against them in the course of their purported functions; and
• if the harm that comes to the child is foreseeable (with the facts of this case illustrating a low threshold for establishing foreseeability).

Key Findings:

The joint reasons of Gageler CJ, Jagot and Beech-Jones JJ (with Gordon and Edelman JJ agreeing on the key issues) confirm the following:

1. A non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or their property as to assume a particular responsibility for their or its safety.
2. A non-delegable duty may be breached by the intentional (criminal) conduct of the duty-holder or their delegate. It is not the criminal character of an act that is determinative; rather, liability turns on the existence and scope of the assumed responsibility and whether the kind of harm is foreseeable within that scope.

In recognising that a non-delegable duty of care was owed the Plaintiff, the majority relied on the following reasoning [at 3]:

"As between the Diocese and AA at that time, a relationship existed in which, for its own purposes, the Diocese:

1. placed Fr Pickin in the position of performing the functions of parish priest of the Diocese; and
2. as part of the performance of those functions, required Fr Pickin to establish sufficiently familiar relationships with children to enable him to instruct them in their spiritual and personal growth as Catholics and created the circumstances in which he could do so; [and] where the Diocese:
3. knew that children, by reason of their immaturity, were particularly vulnerable to many kinds of harm;
4. alone had practical capacity to supervise and control Fr Pickin's performance of his functions as parish priest; and
5. ought reasonably to have foreseen the risk of harm of personal injury to a child under the care, supervision or control of a parish priest such as Fr Pickin, including from an intentional criminal act of the priest or a third party (including an act of sexual abuse of the child)".

Background

In 2024, AA (anonymised in the proceedings) sued the Diocese (Defendant) for damages in negligence for sexual assaults allegedly committed on a number of occasions by Father Ronald Pickin (Fr Pickin) in the late 1960s when he was 13 years of age. Fr Pickin was an incardinated priest of the Diocese.

The particulars of the allegations were that Fr Pickin abused the Plaintiff in the church presbytery after sending the Plaintiff's friend, Mr Perry, out to buy cigarettes.

Fr Pickin died in 2015 and was never charged for the alleged abuse nor confronted with the allegations.

First instance decision (NSWSC per Schmidt AJ)

Schmidt AJ gave judgment in favour of the Plaintiff at first instance, awarding $636,480.00 in common law damages. In so finding, Schmidt AJ accepted:

• the sexual assaults had occurred; and
• the Defendant had breached an ordinary duty of care that it had owed to the Plaintiff as the knowledge of the risk of child sexual abuse was known to Bishops and other senior members of the Church and the Defendant had not taken any precautions to address this risk;
• the Defendant was vicariously liable for the assaults committed by Fr Pickin.

Schmidt AJ did not determine the Plaintiff's claim on the basis that the duty of care was non-delegable in nature.

Court of Appeal decision (Bell CJ, Leeming and Ball JJA)

The Defendant appealed Schmidt AJ's decision to the New South Wales Court of Appeal, contending that Schmidt AJ had erred in accepting that the abuse had occurred and by finding breach of a duty of care.

The Defendant was successful on appeal, with the Court of Appeal finding that:

• The Plaintiff's account of the abuse was unreliable and should not be accepted (in line with the Briginshaw considerations for assessing the civil standard of proof).
• The risk of harm was not foreseeable to the Defendant at the time, and therefore it did not owe an ordinary duty of care. That the general knowledge of child sexual abuse may have been known to Bishops and other senior members of the Diocese at the time was not supported by the evidence and, in any event, could not be imputed to the Defendant.
• A non-delegable duty of care was also not owed to the Plaintiff as such a duty, which is not absolute, does not extend to ensuring that a delegate does not commit an intentional criminal act (in line with the High Court's decision in New South Wales v Lepore (2003) 195 ALR 412).

The issue of vicarious liability was not dealt with on appeal as the parties had accepted that Schmidt AJ's judgment could not stand on the basis of vicarious liability, in light of the intervening decision by the High Court in Bird v DP [2024] HCA 41 which maintained that vicarious liability could only attach vis a vis relationships of employment.

The High Court's Decision

The High Court allowed the Plaintiff's appeal and, by majority:

• upheld the findings of Schmidt AJ that the abuse had occurred;
• on the facts found by Schmidt AJ, ruled that by virtue of Fr Pickin's sexual assaults occurring the Defendant breached the non-delegable duty of care owed to the Plaintiff in 1969 to ensure that reasonable care was taken to prevent him from suffering foreseeable personal injury while he was under the care, supervision or control of a priest of the Diocese carrying out his purported functions.

Significantly, the High Court re-opened and overturned the majority decision in Lepore which stood for the proposition that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act. The High Court recognised that Lepore had 'stultified' coherent development of a principle by treating intentional criminal acts as automatically outside the scope of a non-delegable duty of care.

We expand upon the High Court's reasoning in further detail below:

Non-Delegable Duty

In a helpful analysis, the joint reasons of Gageler CJ, Jagot and Beech-Jones JJ summarised the development of non-delegable duties of care at common law at [21]:

'…a non-delegable duty to ensure that reasonable care is taken is a "special" kind of common law duty of care in negligence. It is a duty which obliges the duty-holder not merely to take reasonable care to avoid a foreseeable risk of injury to another person but to ensure that reasonable care is taken to avoid a foreseeable risk of injury to that other person by any delegate of the duty-holder, being a person performing for the duty-holder a function to which the duty relates'

It is a duty which requires the existence of a relationship of a relevant kind between the duty holder and the person to whom the duty is owed.

Moreover, and critical to revisiting the decision in Lepore, the joint reasons emphasised that a non-delegable duty can be breached either by the duty-holder personally failing to take reasonable care or by the delegate not taking reasonable care to avoid a foreseeable risk of injury to the person to whom the duty-holder owes the non-delegable duty. Importantly, it does not impose strict liability as a non-delegable duty holder cannot be liable for breach of a non-delegable duty unless either the duty-holder personally or the delegate has defaulted in the taking of reasonable care in respect of the person to whom the duty is owed and in relation to a reasonably foreseeable risk of harm [30].

In bringing these principles together, the joint reasons clarified the imposition of a non-delegable duty of care in the 'novel' circumstances of this case (which it regarded as analogous to a non-delegable duty of care being owed in cases of a school authority/student) as follows:

1. There was a special relationship between the Defendant (as duty holder) and the Plaintiff (as a child) such that the Plaintiff had a particular vulnerability and the Defendant had assumed a special responsibility with respect to ensuring the safety of children in its care, supervision or control.
2. The recognition of the non-delegable duty of care was qualified by:

• the Plaintiff being under the care, supervision or control of Fr Pickin as a priest of the Diocese;
• the Plaintiff was in that position as a result of Fr Pickin purportedly performing a function of a priest of the Diocese; and
• the risk of harm - personal injury to a child - was reasonably foreseeable to the Defendant such that reasonable care could have been taken to guard against that risk (sexual abuse of children was a risk that ought to have been known by those in high authority in the Church (e.g. Bishops) at the time even if confined to allegations of abuse).

3. The scope of the duty extended to the harm caused to the Plaintiff by the Defendant failing to ensure that reasonable care was taken against the foreseeable risk of personal injury to the Plaintiff, including from intentional infliction of such injury by the Diocese's own delegates. The High Court also observed that a premises bound formulation was both 'too narrow and too broad' and reframed the duty around the relationship and the priestly function as opposed to the mere location of the abuse.

Ultimately, the joint judgment accepted the non-delegable duty of care owed the Plaintiff was breached by the Defendant as it failed to ensure that reasonable care was taken against the foreseeable risk of personal injury to the Plaintiff, including from the intentional infliction of such injury by the Diocese's own delegates, specifically priests, and by third parties. Critically, it was Fr Pickin's sexual assault of the Plaintiff that triggered the Defendant's breach.

It is noteworthy that separate reasons were given by Gordon, Edelman, Gleeson and Steward JJ. Steward J would have dismissed the appeal, however Gordon, Edelman and Gleeson JJ coalesced with the joint decision of Gageler CJ, Jagot J and Beech-Jones JJ as outlined above.

Application of the NSW Civil Liability Act

The High Court determined that the sexual assault carve out imposed by s3B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA) did not apply such that statutory caps on damages applied. Damages were therefore reduced from $636,480.00 (common law assessment) to $335,960.00 (CLA assessment).

Conclusion

This decision will undoubtedly have wide ranging implications for how liability cases are framed by survivors of sexual abuse post the High Court's decisions in Lepore (which excluded the recognition of non-delegable duties of care where the delegate committed intentional acts) and DP v Bird (which clarified the limitations on vicarious liability to relationships of employment).

In essence, it addresses the gap which Bird created such that survivors were effectively limited to ordinary direct negligence arguments against institutions where the perpetrator was not an employee and creates an alternative pathway for establishing a liability exposure.

The complexity that this case now presents for institutional defendants is that, in our view, it imposes a quasi-strict liability standard for assessing primary negligence. Relevantly, in historical abuse cases involving children, it envisages that a delegate (or a third party introduced by the delegate) who abuses a child in connection with their purported functions (whether on the duty holders premises or otherwise), and where that child can be said to be in the care, supervision or control of the duty-holder, will see the duty holder found to be liable.

Foreseeability is unlikely to be an effective counterbalance as the High Court applied a low threshold for assessing reasonable foreseeability in this case and made it clear that the Plaintiff did not need to prove the Defendant ought to have known that Fr Pickin himself posed a risk of committing child abuse (and, rather, foreseeability was satisfied by the Diocese being aware that children were vulnerable to suffering personal injury and ought to have foreseen that this could occur in their interactions with Fr Pickin).

While the circumstances of this case focused on the relationship between the Diocese, its clergy and a child in the care of the Diocese, the decision contemplates a number of additional scenarios where a non-delegable duty of care case may now succeed in the context of children being placed into care of persons who are not otherwise in a relationship of employment (i.e. volunteers), and with such conduct being carried out by third parties connected to the delegate and external to the duty holder's premises.

There is of course a tempering aspect to the decision in light of the High Court's view that the CLA applies to the determination of damages. Moreover, the Court has highlighted that a non-delegable duty will not be owed where the perpetrator commits the act outside of the role held with a duty holder.