Why is the decision important?
- The High Court found that the Diocese owed AA a non-delegable duty of care in 1969.
- The High Court has recognised that a non-delegable duty of care can be breached by the intentional conduct of the duty holder or their delegate (thereby overturning the High Court’s decision in Lepore1).
- The assessment of damages for breach of a non-delegable duty is to be in accordance with the Civil Liability Act 2002 (NSW).
Decision
The High Court held that the Diocese owed AA a non-delegable duty of care in 1969. The High Court found that the acts of sexual abuse perpetrated by Fr Pickin, the Diocese’s delegate, were a breach of the Diocese’s non-delegable duty. Judgement was entered in AA’s favour and damages awarded.
When imposing a non-delegable duty, the High Court gave great weight to the relationship between the Diocese and vulnerable children such as AA. The High Court acknowledged the vulnerability of children as a class to an adult wrongfully exploiting their authority over them. Importantly, the High Court found that “The existence of this vulnerability would have been as obvious in 1969 as it is today”2. Knowledge or otherwise of a risk of sexual abuse by adults was irrelevant. The High Court confined foreseeability to the risk of personal injury.
The High Court ultimately determined that there was no basis to distinguish the position of the Diocese from that of a school authority.
Factual Background
AA alleged that he was sexually abused by Fr Pickin, an assistant priest of the Diocese in 1969. The abuse occurred at the presbytery. There was a factual dispute as to whether the abuse occurred as alleged. That dispute was resolved in AA’s favour.
The significance of the decision arises from the imposition of a non-delegable duty of care on the Diocese for Fr Pickin’s abuse, both generally speaking and more specifically the context in which the abuse occurred. It was accepted by the parties that AA’s attendance at the presbytery was not a ‘Church event’. It was also accepted that Fr Pickin was not performing a function of a priest when abusing AA.
Despite this, the plurality was satisfied that AA’s attendance at the presbytery was sufficiently connected to Fr Pickin’s performance (or more appropriately purported performance) of his functions as a parish priest. It was held that there were circumstances which led to the abuse that could not be explained other than on the basis that Fr Pickin was the parish priest. It was the relationship that existed between the Diocese and AA that enabled Fr Pickin, as a priest of the Diocese performing the functions of a priest to meet AA, invite him to the presbytery, for AA to accept the invitation and for AA’s parents to permit AA to attend the presbytery.
Legal Issues
In the context of historical abuse, a non-delegable duty of care will be imposed on an institution where:
- The relationship between the institution and the victim is characterised by a vulnerability or special dependence on the part of the child; and
- The institution has assumed responsibility for the care of the child.
When considering the above points, it is difficult to imagine a situation where a non-delegable duty of care will not be imposed on an institution.
For the abuse to be considered a breach of the institutions’ non-delegable duty of care:
- The victim must have been under the care, supervision or control of the institution’s delegate (ie the perpetrator) at the time of the abuse; and
- The perpetrator of the abuse must have been performing or purporting to perform a function delegated by the institution.
The High Court interpreted the phrase ‘purported function’ widely. It mattered not that the abuse occurred in the presbytery on a Friday night in the context of AA and others being supplied with alcohol and cigarettes. The High Court went on to note that abuse in a priest’s car could be within the scope of a non-delegable duty of care provided that the priest was performing a function of purported function of a priest.
Practical Implications
It goes without saying that the decision in AA has eradicated prior hurdles that existed for plaintiffs. The imposition of a non-delegable duty of care on institutions means plaintiffs no longer have to establish the reasonable precautions that an institution should have, but failed to take to prevent abuse. The narrowing of vicarious liability to employment relationships (ie Bird3) no longer causes an issue.
Provided a non-delegable duty of care is imposed (which is highly likely in most cases), a plaintiff need only establish the abuse occurred as alleged. The primary focus now will be on the fact of the abuse.
The narrowing of liability issues will necessarily create a much greater focus on quantum than previously.
Final Thoughts
The plurality commented that there can only be a non-delegable duty of care to prevent harm that is itself reasonably foreseeable – “If harm is reasonably foreseeable the risk of that harm usually can be avoided or minimised”4.
This raises the question – can acts of sexual abuse, which are almost always perpetrated in secret, ever truly be prevented? We know that children continue to be victims of sexual abuse in 2026. Working with Children Checks, rigorous child protection policies and heightened community awareness have not prevent abuse. What is this system that the High Court speaks of that will prevent abuse?
