High Court expands doctrine of non-delegable duty in relation to institutional liability for child sexual abuse

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

The High Court of Australia has held that in circumstances where a non-delegable duty of care is owed, the duty holder may be liable for the intentional criminal conduct of its delegates.

This finding is significant as the High Court has departed from the long-standing authority in New South Wales v Lepore [2003] HCA 4 (Lepore).

We provide our case note on this landmark decision.

Background

Proceedings were commenced by AA (pseudonym) against the Diocese of Maitland-Newcastle (the Diocese) in the Supreme Court of NSW claiming damages for child sexual abuse allegedly perpetrated against AA by Father Pickin, a parish priest at St Patrick’s Church, Wallsend in or about 1969. AA alleged that the Diocese was liable in negligence, vicariously liable and liable for breach of a non-delegable duty.

At first instance, the Supreme Court of NSW determined that the Diocese was directly liable and vicariously liable for the abuse. The Court did not determine the issue of whether the Diocese owed AA a non-delegable duty of care (as this was not necessary given the earlier findings).

On appeal to the NSW Court of Appeal, the Diocese contended that the primary judge erred in determining that the sexual assaults had occurred and that it had breached its duty of care to AA.  Applying Lepore, the Court of Appeal determined that the Diocese did not owe a non-delegable duty in respect of an intentional criminal act of one of its priests. The Court of Appeal also held (with agreement by both parties) that the primary judge’s decision on vicarious liability could not stand in light of the more recent decision in Bird v DP[1] (in which the High Court determined that vicarious liability could only apply to the conduct of employees and Fr Pickin was not an employee).

AA sought leave to appeal to the High Court of Australia, arguing that the majority decision in Lepore was incorrect and that liability for breach of a non-delegable duty may arise from the intentional conduct of the wrongdoer. In so doing, AA invited the High Court to formally revisit and depart (and not just side-step) the longstanding decision and position regarding criminal conduct in Lepore.  In the current climate with increasing claims of institutional abuse, this was particularly topical and important for both survivors and institutions. 

High Court of Australia Decision

On 11 February 2026, the High Court handed down its decision, allowing the appeal by AA and finding by majority:

1. The abuse by Fr Pickin did occur.
2. The duty the Diocese owed to AA in 1969 was to ensure that while he was under the care, supervision or control of a priest of the Diocese, as a result of Fr Pickin purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent foreseeable personal injury to AA.
3. The scope of this duty extended to the harm caused to AA as the Diocese failed to ensure that reasonable care was taken against the foreseeable risk of personal injury to AA, including from the intentional criminal act of Fr Pickin.
4. Fr Pickin's sexual assaults of AA meant that the Diocese breached that duty.

In reaching this conclusion, the majority found that a non-delegable common law duty extends to the intentional criminal acts of the duty holder or its delegate.

Non-delegable duty of care

In relation to the existence of a non-delegable duty of care, the majority (Gageler CJ, Jagot and Beech-Jones JJ) held that a non-delegable duty to ensure that reasonable care is taken is a 'special' kind of common law duty of care in negligence.

No two-stage process of analysis is required in assessing whether a non-delegable duty of care is owed (that is, determining whether a duty of care first exists before determining if that duty was non-delegable). Rather, a non-delegable duty is a duty which obliges the duty-holder to not only take reasonable care to avoid a foreseeable risk of injury to another person but also to ensure that reasonable care is taken to avoid a foreseeable risk of injury by any delegate of the duty-holder, in the performance of a function to which the duty relates.[2]

The High Court recognised that a non-delegable duty of care can be breached by the intentional criminal act of either the duty-holder or its delegate. The majority highlighted that this duty is not one of strict liability in stating at [30]:

'Although a non-delegable duty may result in liability being imposed on the duty-holder without personal fault on the part of the duty-holder, the 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.'

At [50] the majority confirmed that the exclusion of an intentional criminal act from a non-delegable duty of care established in Lepore had created an unusual 'incoherence in the common law', and that to the extent it was held that a non-delegable duty to ensure that reasonable care is taken cannot apply to an intentional criminal act, Lepore should be overturned.

In determining the existence of a non-delegable duty, their Honours examined the relationship between AA and the Diocese which was found to be akin to that of a relationship between a child and a school authority.[3] In finding a non-delegable duty was owed, the Court noted the following three key factors

1. The child was under the care, supervision or control of a priest of a Diocese
2. The child was in that position as a result of the priest purportedly performing a function of a priest of the Diocese, and
3. The risk of harm of personal injury to the child must be reasonably foreseeable.[4]

It was acknowledged that imposing a non-delegable duty on the Diocese was 'novel', in that such a non-delegable duty has not previously been recognised, and that recognition of such a duty is analogous to the non-delegable duty that the common law has long imposed on school authorities.[5]  

It was held that the Diocese had wrongly assumed that the risk of harm had to be confined to the risk of Fr Pickin sexually assaulting a child and that such a risk was not reasonably foreseeable on the part of the Diocese (noting the events occurred in 1969). The relevant risk of harm was personal injury (rather than sexual assault) while under the care, supervision or control of a priest of the Diocese and, in any event, the risk of a priest of the Diocese sexually assaulting a child was itself reasonably foreseeable.

Civil Liability Act 2002 (NSW) (CLA)

In dispute was whether s 3B(1)(a) of the CLA was engaged in respect of the liability of the Diocese for breach of its non-delegable duty.

The High Court found that s 3B(1)(a) of the CLA is not engaged as the non-delegable duty-holder's liability is a direct and personal liability of the duty-holder for not having ensured that reasonable care was taken, with the consequence that the limitations on personal injury damages under the CLA applied and damages were therefore reduced from $636,480 (the common law assessment) to $335,960 (the CLA assessment).

Implications for claims in relation to historical abuse

This decision is a departure from Lepore and the longstanding principle that a duty of care owed by institutions does not extend to preventing the intentional wrongdoings of its delegates, such as criminal activities.

As a consequence of the High Court’s decision in AA v Diocese of Maitland-Newcastle, organisations can be held directly liable for the criminal wrongdoing of their delegates, including employees, priests, teachers, volunteers and carers. However, it remains that an institution will only be liable if it or its delegate has failed to act with reasonable care and that failure has caused harm to a person. A non-delegable duty will not be owed where the perpetrator commits the act outside of their role with a duty holder.

Recognised categories where a non-delegable duty arises include a school and its pupils, employers and employees, as well as hospitals and their patients. However, the categories of relationships are not closed and in determining if the relationship is one that gives rise to a non-delegable duty, regard should be had to the three factors discussed above.

Where a non-delegable duty of care is alleged, it will be important for defendants to demonstrate that they implemented appropriate procedures to safeguard against the risk of harm.  The issue of foreseeability was also addressed on the facts in this case with the Court accepting that the risk of sexual abuse to a child was foreseeable for some institutions in 1969.

[1] Bird v DP [2024] HCA 41 which decision was handed down after the decision at first instance in AA

[2] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 at [21].

[3] Ibid at [113].

[4] Ibid at [121].

[5] Ibid at [110].