The prevalence of presentism – lessons to be learned from Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72

Civil litigation involving historic child abuse allegations has increased since the Royal Commission into Institutional Responses to Child Sexual Abuse. This poses challenges for defendants and insurers who must respond to claims previously barred by limitation periods. With key witnesses' evidence often degraded over time, assessing allegations by historical standards is difficult given modern child safety awareness.

The NSW Court of Appeal's decision in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 underscores the importance of reviewing these cases in their historical context. The Court warned against using contemporary standards and knowledge for historical allegations and stressed the need for careful consideration of witness evidence.

Facts

The plaintiff, AA, claimed that, in 1969, he was sexually abused on 6 separate occasions by an assistant priest, Fr Pickin, in the presbytery of St Patricks’ Church in Newcastle. The plaintiff and his friends occasionally attended the St Patricks’ Church Presbytery on Friday nights, where Fr Pickin plied them with beer and cigarettes.

The plaintiff did not report alleged abuse until 2024, by which time, Fr Pickin had passed away.

The plaintiff brought proceedings against the Diocese of Maitland-Newcastle alleging that it was vicariously liable for the actions of Fr Pickin and also that it breached a duty of care it owed to him. In support of his case, the plaintiff called evidence from Mr M, another man who claimed to have been inappropriately touched by Fr Pickin, who said he had reported this to another priest in the years preceding the alleged abuse of the plaintiff.

First instance decision

The plaintiff was successful at first instance. The trial judge, Acting Justice Schmidt, accepted that the abuse occurred, because the plaintiff’s account was “vivid”, mostly internally consistent, and aligned with tendency evidence from Mr M about Fr Pickin’s proclivities.

Acting Justice Schmidt also held that the Diocese was vicariously responsible for the actions of Fr Pickin, having provided him the power, authority, trust, control and ability to abuse the plaintiff, noting that lack of an employment relationship did not (at the time) preclude vicarious liability.

Her Honour held that the Diocese was negligent because it breached a duty of care it owed to the plaintiff, as a child in the care of its priests, to prevent foreseeable and not insignificant harm that might be committed by those priests. In so finding, her Honour considered that the risk of abuse by priests was known to senior members of the Church at the time of the plaintiff’s alleged abuse, and the Diocese could have foreseen the relevant risk. She found that a reasonable person in the position of the Diocese would have taken steps to prevent this risk, such as implementing mandatory reporting of abuse. This may have caught the report made about Fr Pickin by Mr M, which preceded the alleged abuse of the plaintiff.

The Diocese appealed.

Appeal

At the time of the appeal, vicarious liability was no longer in issue in light of the High Court’s findings in Bird v DP [2024] HCA 41, which determined that vicarious liability is not available in the absence of an employment relationship, even where the relationship is “akin to employment” or in situations where the delegate is provided greater opportunity to abuse than would be provided to a “mere employee”.

The Diocese’s appeal was concerned with two chief issues, namely, whether the trial judge erred in finding that:

• the abuse occurred as alleged; and
• the Diocese owed the plaintiff a duty of care of the type alleged.

The Court of Appeal unanimously allowed the appeal.

Was the alleged abuse proven?

Bell CJ and Leeming JA agreed that the trial judge erred in finding that the abuse occurred, having not considered that the plaintiff’s “vivid” recollection may have been a sincerely held, yet erroneous belief.

The court commented in detail on the frailty of memory, especially where a significant length of time had passed and a person’s recollection may have otherwise been impacted. Because the alleged abuse comprised serious allegations of criminal offending, the court had to satisfied that the abuse occurred to the stringent Briginshaw standard, which is not modified or reduced in cases of historic abuse.

Bell CJ and Leeming JA held that just because a memory is clearly held, and is congruent with a known tendency, the court cannot smooth over inconsistencies that may otherwise bar them from establishing factual findings, just because the case is of a historic nature. The plaintiff was unreliable in his evidence in several respects, and as such, the court did not feel an actual persuasion of the key facts he alleged about the abuse.

Duty of care

The court was unanimous in determining that the Diocese did not owe the plaintiff a duty of care of the type alleged. In addressing that issue, Bell CJ noted that close attention had to be paid to a defendant’s position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks.

Leeming JA noted that in AA’s case, there was very little evidence tendered about the knowledge of senior members of the relevant Diocese about a risk of sexual offending by priests which might underly a duty of care to prevent such conduct. Even Mr M’s prior report about Fr Pickin could not have found such a duty, because no evidence was led about what happened following Mr M’s report or what a reasonable defendant should have done following such a report in the 1960’s.

The court cautioned against viewing historic issues from a modern perspective. Bell CJ in particular warned against taking into account generalised views, outside the evidence in the case, about what certain institutions may have known or not known about alleged sexual abuse at various times.

The court acknowledged that if a Bishop in 1969 knew a parish priest was committing abuse, or had a history of doing so, and had the power to remove them, they would be obligated to do so. However, the claim that senior members of the church knew about the risks of abuse at the hands of their priests generally, let alone of the risk of Fr Pickin specifically, was not supported by evidence admitted at trial.

Implications

This decision provides a helpful scaffold for the type of evidence that is required to make good on a claim in negligence for intentional criminal acts committed by another in a historic context.

While the removal of the period of limitation has led to an increase in similar claims, this decision of the Court of Appeal underscores the importance of the court paying careful attention to the particular evidence in each case, and the reliability of that evidence, rather than being influenced by modern outrage and perceptions about the past.