The recent High Court of Australia decision of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 overruled parts of the decision of New South Wales v Lepore [2003] HCA 4 (‘Lepore’), finding that duty holders can be liable for breaches of a non-delegable common law duty of care regarding intentional criminal acts of a delegate who is acting within the scope of their duties.
Facts
The plaintiff (AA), who was 13 years old in 1969, alleged that he was sexually assaulted multiple times by a priest (Fr Ronald Pickin) at the Priest’s residency, which was a presbytery provided by the Diocese. The key issues were:
- Was the Diocese under an obligation to ensure that reasonable care was taken to avoid a foreseeable risk of injury to AA by any priest or other delegate of the duty-holder?
- If so, could the Diocese of the Church be held liable for an intentional criminal act committed by their delegate?
The relationship between AA and the Diocese
The plurality held that the criminal nature of an act does not remove it from the scope of a non-delegable duty. The relevant inquiries are:
- Whether there exists a relationship of authority, supervision, trust, care or control; and
- The harm was reasonably foreseeable within the scope of the responsibility assumed.
It was accepted that AA was under the care, supervision or control of Fr Pickin, who was the only adult present. A reasonable person in the Diocese’s position would have foreseen that the interactions Fr Pickin had with children might involve a real risk of personal injury to children. The Diocese therefore came under a duty to ensure that reasonable care was taken to avoid the risk of personal injury to child parishioners such as AA whilst they remained in the care of a priest of the Diocese.
Overturning Lepore
The case of Lepore confined the operation of the common law non-delegable duty of care such that there was no duty in respect of harm caused by an intentional criminal act.
In overruling Lepore, the majority found that a delegate who by their intentional conduct injures a plaintiff is no less at fault than a delegate who allows a plaintiff to be injured by their unintended conduct. The duty holder is liable for failing to ensure that care is taken, so long as it falls within the scope of the delegate’s duty.
Implications
The decision expands the circumstances in which an institution may be held legally liable to a person. Now, an institution may be held liable for an intentional act of harm, provided that it is established that the institution had assumed responsibility to ensure that reasonable care is taken of another’s person, and the risk of such harm was reasonably foreseeable.
In AA, it was accepted that there was a relationship between the Diocese and AA, and that Fr Pickin had authorised contact with AA within his pastoral role with the Diocese. Institutional abuse claims will therefore require careful investigation into the role of the alleged offender, as well as the relationships between the relevant parties, and may result in a wider pool of potential defendants.
