AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle [2026] HCA 2
On appeal by special leave to the High Court, AA argued that the NSW Supreme Court of Appeal erred in holding that the Diocese did not owe him a non-delegable duty of care which was breached by the sexual abuse committed against him by Fr Pickin in 1969. The majority decision of the High Court found that the Diocese did owe AA a non-delegable duty of care, and that duty was breached, causing AA harm.
The AA decision has clarified that institutions may be directly liable for a breach of a non-delegable duty in respect of abuse of a child in circumstances where the institution put the wrongdoer in a position of authority and if the child was in the institutions care and the institution assumed responsibility for the child’s safety. It is no longer accepted that this duty fails to arise because the wrongdoer’s conduct constitutes a criminal act of child abuse. This significantly expands the circumstances in which institutions may be held directly liable for historical child sexual abuse.
Link to High Court’s full summary
Non-Delegable duties
Non-delegable duties are those in which cannot be delegated, for example, a school authority owes its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance.[1]
In Lepore,[2] the High Court found that there cannot be a non-delegable duty in respect of the intentional criminal act of one person causing harm to another person.[3] The AA decision removes the longstanding barrier for survivors created by Lepore.
Background
- The Plaintiff, AA, was sexually abused by Fr Picken multiple times in 1969 when he was 13 years old, causing AA both immediate personal injury and consequential psychological harm.[4]
- Fr Picken met AA when Fr Picken taught scripture at the State high school AA attended, and invited AA, along with other boys, to the presbytery on Friday nights where Fr Picken lived. Fr Picket sexually assaulted AA in that area of the presbytery out of sight of any other boy.[5]
Primary Judgement – Supreme Court of NSW
The primary judge, Schmidt AJ, held the Diocese liable for that harm on the principal basis that it was vicariously liable for Fr Pickin's wrongful acts of sexually assaulting AA. The primary judge also held that the Diocese owed AA a common law duty of care which it breached by inaction on the part of the Bishop. Although AA also claimed that the common law duty of care the Diocese owed him was "non-delegable", the primary judge did not determine AA's claim on that basis.
The primary judge gave judgment for AA against the Diocese in the sum of $636,480 on the undisputed basis that the limitations on personal injury damages imposed by the NSW Civil Liability Act did not apply to the Diocese's vicarious liability for Fr Pickin's intentional acts of sexually assaulting AA and ordered the Diocese to pay AA's legal costs of the proceedings.[6]
Appeal – NSW Court of Appeal
The Court of Appeal allowed an appeal by the Diocese against the orders of the primary judge. The Court of Appeal unanimously held that the Diocese did not owe AA the common law duty of care the primary judge had found. Applying Lepore, the Court of Appeal also unanimously held that there could be no non-delegable duty owed by the Diocese in respect of an intentional criminal act of one of its priests.[7]
High Court of Australia - Decision
On appeal by special leave to the High Court, AA argued that the Court of Appeal erred in holding that the Diocese did not owe him a non-delegable duty of care which was breached by the sexual abuse committed against him by Fr Pickin.[8]
The majority held:
- 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.[9]
- A non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate, and to the extent the majority in Lepore held that there could be no common law non-delegable duty in respect of harm caused by an intentional criminal act, the decision should be re-opened and overturned. [10]
- On the facts as found by the primary judge, the Diocese in 1969 owed AA a non-delegable duty.[11]
- Fr Pickin’s sexual assaults of AA meant that the Diocese breached that duty, causing AA the harm, as found by the primary judge.[12]
- 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). [13]
Implications of Decision
Ultimately, the AA decision expands the circumstances in which institutions can be held to be directly liable for abuse perpetrated by a person committing a criminal act if the institution placed the wrongdoer in a position of authority, trust and control, and if the child was in the institutions care or supervision and the institution assumed responsibility for the child’s safety.
The AA Decision removes the longstanding barrier created by Lepore (that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act).
The AA Decision expands institutional liability allowing direct liability for child sexual abuse committed by persons placed in positions of authority.
Courts will look to the relationship between the wrongdoer and the institution and whether they were put in a position of authority trust and control, and whether the child was under that person’s care and supervision to determine if there is a non-delegable duty.
Relevantly, statutory caps may apply on damages for breach of non-delegable duty (direct liability). This differs from vicarious liability claims relating to sexual abuse, in which statutory exclusions can remove caps altogether.
[1] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle [2026] HCA 2, at 15.
[2] (2003) 212 CLR 511.
[3] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle [2026] HCA 2, at 23.
[4] Ibid, at 9.
[5] Ibid, at 1.
[6] Ibid, at 9.
[7] Ibid, at 10.
[8] Ibid, at 11.
[9] Ibid, at 6.
[10] Ibid, at 6.
[11] Ibid, at 13.
[12] Ibid, at 13.
[13] Ibid, at 13.
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