A New Frontier for Institutional Liability: The High Court’s Landmark Decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2

In the pivotal decision of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, the High Court of Australia held that a non-delegable duty of care may be breached by a delegate’s intentional criminal acts, thereby overturning long-standing precedent to the contrary.

Background

Supreme Court of New South Wales

AA commenced proceedings in the Supreme Court of New South Wales in 2024 alleging that he was sexually abused on multiple occasions in 1969 (when he was 13 years of age) by Father Ronald Pickin (Fr Pickin), a priest of the Diocese of Maitland-Newcastle (the Diocese).

The trial judge held the Diocese was vicariously liable for the abuse perpetrated by Fr Pickin and had breached its ordinary common law duty of care to AA, awarding him $636,480 in damages.

Court of Appeal

The Diocese was successful on appeal to the Court of Appeal which overturned the trial judge’s decision finding that:

• AA’s account of the abuse was unreliable;
• vicarious liability could not stand following the decision in Bird v DP (a pseudonym) [2024] HCA 41; and
• there is no non-delegable duty owed to AA to ensure that a delegate does not commit an intentional criminal act (in line with the decision in New South Wales v Lepore (2003) 195 ALR 412 (Lepore)).

AA’s Special Leave Application to the High Court

AA subsequently applied for special leave to the High Court of Australia in relation to the Court of Appeal’s decision on the basis that the Court of Appeal erred in holding that the Diocese did not owe AA:

1. a non-delegable duty of care in respect of the sexual abuse committed against him by Fr Pickin, either at common law or by reason of s 5Q of the Civil Liability Act 2002 (NSW) (CLA).
2. any duty of care in negligence in respect of the alleged abuse perpetrated by Fr Pickin.

HCA’s Judgment

Notably, the High Court of Australia upheld the trial judge’s findings that the alleged abuse had occurred and found that the Diocese had breached its non-delegable duty of care owed to AA because of the abuse committed by Fr Pickin, who was carrying out his purported functions as a priest of the Diocese.

The Abuse  

The High Court of Australia rejected the Court of Appeal’s criticisms of AA’s memory, stating that there was no evidence that AA’s mental state or memory was so imperfect that he had convinced himself or was under a delusion that he was sexually assaulted by Fr Pickin. To this end, the High Court of Australia referred to the expert report of Dr Apler who noted that AA maintained normal memory during the assessment in 2024 and that there was no expert evidence to support the assertion that AA had an impairment of mind.

Accordingly, the High Court of Australia accepted that the abuse by Fr Picking occurred.

Duty of Care

Lepore had established that liability for breach of a non-delegable duty of care does not extend to the intentional criminal conduct of a third party. This was a particularly important distinction in claims of child abuse as defendants were able to rely on this doctrine in defence of any claims of breach of non-delegable duty of care arising from intentional criminal acts being perpetrated by another.

In this matter, the High Court of Australia held that 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.

The High Court of Australia reasoned that "an intentional criminal act of a delegate... is necessarily a failure by the delegate to take reasonable care and therefore a failure by the duty-holder to ensure that reasonable care is taken". 

In finding that a non-delegable duty of care was owed to AA, the HCA drew a direct analogy of the relationship between the Diocese and Fr Picking to the relationship between a school authority and a student. The majority identified five "stable factors" that gave rise to a special relationship between Fr Pickin and AA:

1. The Diocese placed Fr Pickin in the position of performing parish functions.
2. The Diocese required Fr Pickin to establish "sufficiently familiar relationships with children" to facilitate their spiritual growth.
3. The Diocese knew children were "particularly vulnerable to many kinds of harm" due to their immaturity.
4. The Diocese alone had the "practical capacity to supervise and control" Fr Pickin.
5. The risk of personal injury, including from intentional criminal acts, was "reasonably foreseeable" in 1969.

Quantum

The parties had agreed that if the provisions of the CLA applied to the Diocese, the award of damages at first instance had to be reduced from $636,480 (common law assessment of damages) to $335,960 (made up of economic loss of $90,480, plus non-economic loss of $245,480).

That is, because the Diocese’s liability was for negligence (failing to ensure care) and not for its own intentional act, the statutory caps on personal injury damages applied.

Implications

The most significant impact arising from the majority decision in AA is the overturning of the doctrine set by Lepore. This significantly broadens the scope of potential liability for defendants in child sexual abuse claims, as the Courts will now recognise direct liability for child abuse committed by delegates placed in positions of authority. However, the High Court of Australia emphasised that a non-delegable duty will not be established where the perpetrator commits an intentional criminal act outside of the role they hold.

On the other hand, it enables survivors alternative avenues to seek compensation where vicarious liability cannot be established, removing the hurdle maintained in the decision of Bird v DP (a pseudonym) [2024] HCA 41.    

As to quantum, this decision also offers greater certainty regarding quantum and the applicable caps when liability is established based on a breach of non-delegable duty of care. This is particularly informative in respect of assessments for non-economic loss, where common law assessments can attract awards of $400,000 for this head of damage alone in institutional abuse claims.