In a notable judgement, the High Court of Australia (High Court) found that the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Diocese) breached its non-delegable duty of care which it owed to a child (AA) who was sexually assaulted by a priest of the Diocese in 1969.

The core issue was whether the Diocese could be held responsible for the priest’s conduct as the priest was not legally regarded as an “employee” of the Diocese.

Ultimately, the High Court found that the Diocese owed AA a non-delegable duty of care primarily because:

  • the child was under the “care, supervision or control” of a priest of the Diocese; and
  • the Diocese should reasonably have foreseen the risk of harm to AA under the supervision of a priest.

The decision expands the scope of institutional liability by imposing a non-delegable duty on organisations caring for children and other clearly vulnerable individuals meaning that institutions will be liable for the tortious conduct of their delegates (even if they are not employees including intentional criminal conduct of those individuals.

Background

AA commenced proceedings against the Diocese on the basis that he was sexually assaulted by a priest (Fr Pickin) on several occasions in 1969. AA asserted that the abuse led to personal injury and psychological harm.

It was contended that the abuse took place at the presbytery where Fr Pickin lived alone. The High Court accepted evidence that Fr Pickin invited AA (and his friend) to the presbytery and provided them with alcohol, cigarettes and coins to play poker.

Fr Pickin died in 2015.

Decision at first instance

The primary judge of the Supreme Court of New South Wales found that:

  • Fr Pickin sexually assaulted AA multiple times in 1969, causing personal injury and psychological harm;
  • the Diocese was vicariously liable for Fr Pickin’s wrongful acts; and
  • the Diocese owed AA a common law duty of care.

Consequently, AA was awarded the sum of $636,480 in damages.

Significantly, AA argued that the duty of care owed to him by the Diocese was non-delegable. However, the Court did not make its determination on that basis.

Court of Appeal

The Diocese appealed the orders of the primary judge which was accepted by the New South Wales Court of Appeal. The Court of Appeal ultimately held that a common law duty of care did not exist given that the risk of harm to AA was not foreseeable.

Moreover, the Court followed the authority of Lepore which held that a defendant cannot be held liable for breach of a common law non-delegable duty based on a criminal act. AA accepted that the primary judge’s decision based on vicarious liability could not stand in light of the High Court’s decision in Bird v DP [2024] HCA 42.

Accordingly, the primary judge’s decision was overturned.

Appeal to High Court of Australia

The question before the High Court was whether the Diocese could be held liable for the conduct of its delegate, in the circumstances, Fr Pickin, on the basis that it owed AA a non-delegable duty of care.

The non delegable duty of care

AA argued that, as a child in the care of the Diocese, it was foreseeable and not insignificant that he might suffer harm, and that the Diocese owed him a non-delegable duty to take reasonable care.

After considerable debate, the High Court held that the Diocese owed AA a non-delegable duty of care because the Diocese:

  • placed Fr Pickin in the position of performing the functions of parish priest of the Diocese;
  • as part of the performance of those functions, required Fr Pickin to establish sufficiently familiar relationships with children to enable him to instruct them in their spiritual and personal growth as Catholics and created the circumstances in which he could do so;
  • knew that children, by reason of their immaturity, were particularly vulnerable to many kinds of harm;
  • alone had practical capacity to supervise and control Fr Pickin’s performance of his functions as parish priest; and
  • ought reasonably to have foreseen the risk of harm of personal injury to a child under the care, supervision or control of a parish priest such as Fr Pickin, including from an intentional criminal act of the priest or a third party.

Intentional criminal acts

The High Court upheld the primary judge’s decision that Fr Pickin sexually assaulted AA.

Accordingly, the Diocese was found to have breached the non-delegable duty of care owed to AA on the basis that reasonable care was not taken to prevent AA from suffering foreseeable harm under the care, supervision and control of a priest of the Diocese.

In this regard, the High Court relied on Glesson CJ’s remarks in relation to criminal acts in Lepore:

“The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.”

Damages

Notwithstanding that liability was established, the High Court reduced the damages payable to AA from $636,480 to $335,960 (economic loss of $90,480, in addition to non-economic loss of $245,480).

This was because of the applicable statutory limits under the Civil Liability Act 2002 (NSW).

Key takeaways

The judgment widens the circumstances in which institutions may be held legally liable for historical abuse, extending liability not only to the actions of teachers directly employed by the institution but also to those acting on its behalf.

Critical implications of the judgement include:

  • institutions may now be held liable for sexual abuse committed by third parties, including delegates who are not directly employed by the institution;
  • the legal test of ‘foreseeability’ in such cases now extends to circumstances involving the supervision of children;
  • responsibility may arise even if the harm results from intentional criminal conduct by individuals acting in a role delegated by the institution; and
  • the judgment expands the ability of survivors of historical sexual abuse to pursue civil claims against institutions.