High Court widens exposure for organisations working with vulnerable people: AA v The Trustees of the Roman Catholic Church [2026] HCA 2

In the recent decision of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle[1], the High Court allowed the appeal of the New South Wales Supreme Court of Appeal decision relating to the sexual abuse of AA as a 13-year-old child by a priest of the Diocese, Fr Ronald Pickin.

The decision overturns the findings of New South Wales v Lepore[2]and establishes that non-delegable duty of care can extend to the intentional criminal acts of employees, delegates and/or third parties.

As recognised by Justice Edleman ‘[t]he overruling of Lepore will have a significant effect on the common law in this country….”[3]

The implications of this decision are still to emerge. Our initial thoughts are that:

• The re-opening and overturning part of the decision of Lepore will no doubt cause significant concern to many insurers and institutions alike.
• In the case of claims against religious and other organisations whose activities are undertaken by people they do not employ, the decision will provide a clearer path home for claimants to avoid the impact of the decision of DP v Bird which upheld that vicarious liability for the wrongdoing of another person only applies in an employment relationship. This may alleviate the need for legislation expanding vicarious liability to cover the acts of those people.The legislative changes being introduced post DP v Bird are developing in a piecemeal and inconsistent manner around Australia.
• The impact of this decision will not be felt only by religious institutions and will be relevant to any organisation that deals with vulnerable people, including children, people with disability, our elderly population and individuals receiving medical treatment. Although the High Court considered the inherent vulnerability of children arising from the circumstance of AA, the majority also recognised the vulnerability of some adults, such as patients in a hospital. Some institutions providing support to adults living with disability or older people in receipt of care may take notice of this decision insofar as their relationship to the person may be viewed as one where they have, by undertaking the care, supervision or control of the person, assumed responsibility for their safety, rendering it a non-delegable relationship.   
• The principles in this case expose institutions to the criminal wrongdoings of its delegates carrying out the functions of the organisation with respect to children and vulnerable people, notwithstanding the fault lies with the delegate, and where no (or little) ‘fault’ lies with the institution. Breach of the non-delegable duty means the traditional consideration of whether the institution took reasonable precautions to prevent harm to a vulnerable person in its care will become far less relevant, as it will only be necessary for a plaintiff to show that the delegate breached their duty of care. That is a given where the delegate has sexually abused a child or vulnerable person. Similarly, a physical battery and other forms of intentional misconduct against a vulnerable person may be able to be sheeted home against the organisation.
• It will also mean an organisation has greater scope for liability for the acts of non-employees, including volunteers and independent contractors, where they are carrying out the organisation’s functions and where they have the power, authority, trust and control over a vulnerable person.

Organisations will need to continue to take all available measures to ensure that the risk of harm from abuse (of any type) to a vulnerable person in their care is avoided or minimised.

The facts

AA commenced a claim in the NSW Supreme Court against the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (the Diocese) for harm suffered as a result of Fr Pickin sexually assaulting AA in 1969. Fr Pickin, as a parish priest of the Diocese, taught scripture at AA’s school and lived at the presbytery.

Fr Pickin invited AA and other children from the school to the presbytery on Friday nights where he would give the children alcohol, cigarettes and allow them to participate in gambling. It was on such occasions at the presbytery that Fr Pickin sexually assaulted AA.

First instance

The plaintiff was successful at first instance. The primary judge found that the Diocese put Fr Pickin in a role which provided him access to the children of the parish and conferred the power, authority, trust, control and ability to abuse the plaintiff. The Diocese was found to be vicariously liable for the sexual assault committed by Fr Pickin, and further, the Diocese owed, and subsequently breached, its duty of care to AA. No determination was made regarding breach of a non-delegable duty of care owed by the Diocese to AA.

Appeal

An appeal by the Diocese was allowed, and it was accepted that the High Court decision in Bird v DP [2024] HCA 41 overturned the primary judge’s finding of the Diocese being vicariously liable for Fr Pickin’s acts. It was unanimously held that no common law duty of care was owed by the Diocese and further that there was no non-delegable duty of care regarding the intentional criminal act of Fr Pickin, following the application of Lepore .

High Court decision

Following the hearing on 7 August 2025, the High Court allowed the appeal with costs. The majority found that a non-delegable common law duty of care was owed by the Diocese, and the sexual assault perpetuated by Fr Pickin against AA breached that duty of care.

Gageler CJ, Jagot J and Beech-Jones J gave joint reasons upholding the appeal. Justices Gordon, and Edelman supported the orders, but provided separate judgments.

Steward and Gleeson JJ were in dissent and would not have allowed the appeal.

Non delegable duty

Gageler CJ, Jagot and Beech-Jones JJ discussed the circumstances of when a non-delegable common law duty of care arises, and summarised that such duty 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”.

The non-delegable duty goes beyond a duty to take reasonable care, and is a duty to ensure reasonable care is taken.

It was noted that at the time of the incident, the Diocese had required and expected Fr Pickin, in his role as a priest, to engage with children of the parish, including teaching children at AA’s school; the Diocese permitted Fr Pickin to invite people to the presbytery, which served as his home.[4]

Their Honours highlighted that AA, as a child, was a vulnerable person due to his relationship with the Diocese in that AA was “a child parishioner with a parish priest of the Diocese, a person whom he was taught to respect and obey”.[5] While mere vulnerability does not solely amount to the creation of a non-delegable duty of care, it is a contributing principle.[6] and that the assumption of responsibility over the safety of a child culminates in the establishment of a non-delegable duty of care to be owed.

The relationship between AA and the Diocese was compared to that between a school authority and a child. It was noted that a school still has obligations to its children whilst not being confined to the premises of the school, furthermore, parents entrust the safety of their children with the school and entrust that their child would be safe from reasonably foreseeable risks of harm.[7] Their Honours applied the same expectations to that of the Diocese, and found that its priests, much like teachers, have a level of authority over children, and that those children have a particular vulnerability to any abuse of such authority. The priests of the Diocese, like the teachers at a school, have a duty to ensure the welfare and safety of a child. Their Honours therefore concluded that a non-delegable duty of care was owed by the Diocese to AA.

Framing the non-delegable duty and breach

Their Honours provided three qualifying factors:[8]

1. The child must in fact be under the care, supervision or control of a priest of a diocese;
2. The child must be in that position as a result of the priest purportedly performing a function of a priest of the diocese; and
3. The harm must be a reasonably foreseeable personal injury to the child.

Their Honours found that Fr Pickin, as the only adult that was present while AA was at the presbytery, had the care, supervision and control over AA and his role as a priest with the Diocese, enabled him to establish a relationship with AA prior to inviting him to the presbytery.

As to the risk of harm, their Honours stated that 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, but that in any event, the risk of a priest of the Diocese sexually assaulting a child was reasonably foreseeable, even in 1969.

Their Honours found that the sexual assault committed by Fr Pickin, amounted to a breach of the Diocese’s non-delegable duty of care to AA. This is despite the act being an intentional criminal act, in contrast to the decision in Lepore on the non-delegable duty of care for criminal act. As such, their Honours called for the decision in Lepore on that issue to be re-opened and overturned.

Justice Gordon agreed with the findings of the majority and emphasised that the relationship between a non-delegable duty holder and plaintiff is marked by special dependency or vulnerability of the plaintiff.[9] When considering the existence of a non-delegable duty of care, Justice Gordon considered the:

1. scope and content of non-delegable duty;[10]

2. place of reasonable foreseeability;[11]

3. non-delegable duty is not dependent on finding of duty to take reasonable care;[12] and

4. non-delegable duty may be breached by intentional conduct.[13]

In the circumstances, Justice Gordon determined that AA was a vulnerable child whom placed a high degree of trust in priests of the parish; the Diocese was entrusted with the care of AA; the Diocese appointed Fr Pickin to a parish and expected him to engage with young children and conferred control and authority to Fr Pickin; and the Diocese had a duty to ensure that reasonable care was taken to avoid AA suffering personal injury whilst in the care of a priest of the Diocese.[14]

Justice Gordon established that the Diocese breached its non-delegable duty of care once Fr Pickin failed to take reasonable care of AA by his intentional criminal acts committed against AA.[15]

Justice Edelman provided that the only duty of care owed by the Diocese was “one based upon an assumption of responsibility” of AA.[16] The Diocese assumed responsibility to ensure that reasonable care was taken by its delegates, including Fr Pickin, to avoid personal injury to AA.

It was noted that Fr Pickin’s relationship with AA was established through his role as a priest, and that his abuse of AA occurred within the Diocese’s presbytery. On this, Justice Edelman found that the conduct of Fr Pickin remained within the scope of the Diocese’s non-delegable duty of care, notwithstanding such acts being intentional and criminal in nature.[17]

As such, Fr Pickin’s abuse against AA, resulting in harm, constituted a breach of the Diocese’s non-delegable duty of care.

NSW Civil Liability Act

A late addition to the appeal, was the operation of provisions of the NSW Civil Liability Act in respect of the liability of the Diocese for breach of a non-delegable duty of care (if found to exist) and if the same reasoning that has been applied to vicarious liability ought to apply to the liability of a person subject to a non-delegable duty so as to exclude the application of the Act.[18]

Their Honours found that s3B(1)(a) of the NSW Civil Liability Act is not engaged in respect of the liability of the Diocese for breach of its non-delegable duty, with the consequence that the provisions of the Act apply to the liability of the Diocese.

This is of some comfort to defendants in New South Wales as it will mean that where plaintiffs succeed in establishing liability for breach of the non-delegable duty of care (as with claims in negligence) the caps on general damages under NSW Civil Liability Act will apply and there will be no entitlement to interest. Where liability is founded on vicarious liability (which would seem less likely post this decision) uncapped damages will still be available.

Where to from here?

The true impact of this wide-reaching decision is likely to unfold in the coming months and will undoubtedly be the subject of further judicial consideration.

While this decision alters the legal analysis of the liability organisations to vulnerable people, it does not change the fundamental obligations of organisations to protect vulnerable people under their care, supervision or control from harm through proper screening and monitoring of employees and policies and procedures to reduce the risk of harm.