How the High Court Redefined Institutional Duty of Care: AA v Diocese of Maitland‑Newcastle

AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 [2026] HCA 2

Parties

Appellant – AA

Respondent – The Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle

Overview of Case

On Wednesday morning, the High Court of Australia handed down its decision in AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (herein referred to as ‘AA’).[1]

AA,[2] on appeal from the Court of Appeal of the Supreme Court of New South Wales, examined the scope of common law non-delegable duty of care, and whether such a duty could be established in this case.

The High Court, by majority, allowed the appeal by AA and concluded that a religious institution can indeed owe a non-delegable duty of care to a parishioner.

Background

In 1969, at the age of thirteen, the appellant was sexually assaulted by Father Ronald Pickin (“Father Pickin”), the assistant priest at St Patrick’s Church, Wallsend NSW at the time.[3] Father Pickin also taught religious scripture at Wallsend High School in 1969.[4]

The appellant attended St Patrick’s Church and Wallsend High School, where he met Father Pickin. Father Pickin would invite the appellant and several other boys to the presbytery to use a poker machine and consume beer and cigarettes; this is where the abuse was to occur.[5]

Both the Church and School are located within the Diocese of Maitland-Newcastle.[6]

Procedural History

In 2024, the appellant commenced proceedings in the Supreme Court of New South Wales against the respondent claiming damages for psychological injuries sustained as a result of sexual abuse perpetrated by Father Pickin.[7] The trial was heard before Schmidt AJ between 23 and 28 August 2024.

On 20 September 2024, Schmidt AJ decided in favour of the Plaintiff (AA). She concluded that Father Pickin did sexually abuse the Plaintiff in 1969, and that the Diocese should be held both directly and vicariously liable for the harm caused Father Pickin.[8]

On 27 February 2025, the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle appealed the decision to the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal allowed the appeal and set aside the orders made by Schmidt AJ on 15 April 2025, citing errors in her fact-finding process.[9]

High Court Decision

On 17 June 2025, the appellant’s application for special leave to appeal was granted by the High Court.

In a majority judgment, Gageler CJ, Jagot, Beech-Jones, Gordon and Edelman JJ agreed that the Diocese was liable to AA for breach of a non-delegable common law duty of care.[10] The relevant duty owed to AA in 1969 was a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child.[11]

The majority held that:

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;[12]
2. 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[13] 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;[14]
3. on the facts as found by Schmidt AJ, the Diocese in 1969 owed the appellant a non-delegable duty;[15]
4. Fr Pickin’s sexual assaults of the appellant meant that the Diocese breached that duty, causing the appellant the harm as found by Schmidt AJ;[16] and
5. the limitations on personal injury damages imposed by the Civil Liability Act 2002 (NSW) applied to the determination of the extent of the liability of the Diocese.[17]

Dissent

Steward and Gleeson JJ concluded that the appeal should be dismissed.

Steward J agreed that the Church owed the appellant a non-delegable duty of care but reasoned that that duty only covered what was considered “Church events”.[18] Anything outside of that scope, such as Father Pickin inviting the appellant and other boys to the presbytery, does not attract a non-delegable duty of care.[19]

In line with the reasoning of the Court of Appeal, Steward J argued that the cases of Lepore and Bird[20] preclude intentional torts from being covered by non-delegable duties.[21] And further, that the amendments made to Part 1B of the Civil Liability Act 2002 (NSW), which echo the reasoning in Lepore, draw a clear distinction between taking reasonable care to ensure that unintentional conduct does not cause harm and preventing intentional criminal conduct.[22] The majority of the High Court responded to this same issue by reopening Lepore and overruling it.[23]

Gleeson J relied on the reasoning in Bird to argue that Father Pickin was not an employee of the Diocese, and therefore, the relationship between Father Pickin and the appellant did not fall under, or was not “sufficiently analogous” to, one of the recognised relationships of vicarious liability.[24] As such, the appellant could not succeed in establishing a common law non-delegable duty of care on the part of the respondent.

Orders

The following orders were made:

1. Appeal allowed with costs.
2. Set aside orders 1 and 2 made by the Court of Appeal of the Supreme Court of New South Wales on 15 April 2025 and orders 7 and 8 made by the Court of Appeal on 7 May 2025. In their place, order that the appeal to the Court of Appeal be dismissed with costs save to the extent that order 1 of the orders made by Schmidt A-J on 18 October 2024 be varied to substitute for “$636,480.00” the sum of $335,960.

Going Forward

This eminently sensible decision from the High Court should be read in conjunction with their late-2024 decision in Bird which held that a similarly engaged priest was not an employee of his diocese and so the diocese was not vicariously liable for his criminal misconduct.[25] It must be noted that the plaintiff in the Bird decision had not made an argument on the basis of a non-delegable duty but rather sought to stretch the doctrine of vicarious liability beyond employees to relationships that were described as “akin to employment”.[26] This was because of the High Court’s 2003 decision in Lepore which effectively meant that there could be no non-delegable duty owed by the Diocese in respect of an intentional criminal act of one of its priests.[27]

An unfortunate consequence of the High Court’s decision in Lepore was that plaintiffs had increasingly relied upon the doctrine of vicarious liability in institutional abuse claims, and in Bird had sought to extend the doctrine beyond employment.[28] That approach was rejected by the High Court in Bird in a decision that was widely perceived as benefiting defendants (especially church-based defendants) in institutional abuse claims.

By overturning Lepore this decision restores the proper basis for defendants’ liability in institutional abuse claims as arising from a non-delegable duty towards children placed in the care of adults and institutions.

References

[1] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 [2026] HCA 2.

[2] Ibid.

[3] AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183; 334 IR 70.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid [8].

[9] Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 [16] (Bell CJ), [131]-[152] (Leeming JA).

[10] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 (n 1) [153].

[11] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 (n 1) [6].

[12] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 (n 1).

[13] New South Wales v Lepore [2003] HCA 4; 212 CLR 511.

[14] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 (n 1).

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Bird v DP (a pseudonym) [2024] HCA 41; 98 ALJR 1349.

[21] AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 (n 1).

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Bird v DP (a pseudonym) (n 20).

[26] Ibid.

[27] New South Wales v Lepore (n 13).

[28] Bird v DP (a pseudonym) (n 20).