Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.
The High Court of Australia determined that a non-delegable duty of care could be breached by the intentional criminal wrong doing of a third party.
In issue
- The ultimate issue which the High Court determined was whether the respondent, the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Diocese)1 owed the appellant, AA, a non-delegable duty of care, which could be breached by the intentional criminal act of a delegate or other third party.
- To resolve this, the Court had to determine whether to re-open and overturn the decision in New South Wales v Lepore2 (Lepore), which had precluded defendants being held liable for breach of a non-delegable duty based on intentional (criminal) conduct by a delegate.
- The Court also determined whether, in circumstances where a non-delegable duty of care is breached, the provisions of the Civil Liability Act 2002 (NSW) (CLA) applied.
The background
On multiple occasions in 1969, the appellant, AA, was sexually abused by Fr Ronald Pickin, a priest incardinated in the Diocese. AA was one of Fr Pickin’s parishioners, and Fr Pickin taught AA’s scripture classes at AA’s high school. Fr Pickin invited AA (and other boys) to the parish presbytery on Friday nights, where Fr Pickin supplied alcohol and cigarettes, and sexually assaulted AA.
AA commenced proceedings in the Supreme Court of New South Wales, alleging that the Diocese owed him a duty of care, as well as a non-delegable duty, and that it was vicariously liable for the actions of Fr Pickin. The primary judge found the Diocese liable both in negligence, and vicariously for Fr Pickin’s abuse. No findings were made in relation to the pleaded non-delegable duty.
The Diocese appealed to the New South Wales Court of Appeal. By the time of the hearing, following the decision of Bird v DP (a pseudonym),3 it was accepted that the primary judge’s finding that the Diocese was vicariously liable for the actions of Fr Picken could not stand. The Diocese appealed the finding that it had owed AA a duty of care, and AA filed a notice of contention seeking to uphold the first instance decision, but on the basis that the Diocese owed him a non-delegable duty of care. The Court of Appeal upheld the Diocese’s appeal on the finding in negligence, and in relation to AA’s notice of contention on non-delegable duty, found that it was bound to follow the decision in Lepore, such that the Diocese could not owe a non-delegable duty in respect of an intentional criminal act of one of its priests.
The High Court’s decision
The High Court majority (Gageler CJJ, Jagot and Beech-Jones JJ), as well as Gordon, Edelman and Steward JJ were in agreement that the imposition of a non-delegable duty of care generally required that the duty-holder had undertaken the care, supervision or control of the person or property of another, or was so placed in relation to that person or their property as to assume a particular responsibility for their or its safety. Each found that a non-delegable duty was owed to AA, however the majority, and each of Gordon, Edelman and Steward JJ respectively, differed as to the specific formulation or scope of the duty owed.
The majority recognised the existence of a non-delegable duty of care owed by the Diocese to AA, as they considered that there was no principled basis to distinguish the position of the Diocese vis-à-vis AA in 1969 from that of a school authority to a student.4 It found that the precise duty owed by the Diocese was a duty to a child to 'ensure that while the child was under the care, supervision or control of a priest of a Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child'.5
Therefore, in the majority’s view, the requisite connection to impose a non-delegable duty of care was met if a child was under the care of a priest, as a result of the priest purportedly performing a function of a priest. The majority observed that such a conclusion removes 'arbitrary or illogical limitations'6 on the circumstances in which a non-delegable duty of care will be imposed.
The majority further observed that if a child was in the care, supervision or control of a priest of a diocese for reasons other than him having purportedly performed a function of a priest of the diocese, then the diocese’s relationship with the child was irrelevant to the harm suffered.7 However, the majority did not limit the existence of a non-delegable duty to Catholic children, acknowledging that dioceses can develop requisite connections with non-Catholic children, who might thereby be owed a non-delegable duty.8
Gordon J identified a narrower duty, being to 'ensure that reasonable care was taken to avoid a risk of personal injury to child parishioners such as AA in the care of a priest of the Diocese at the presbytery'.9 He thought it unnecessary to decide on the facts of the case whether the non-delegable duty extended beyond the presbytery, or to children other than parishioners. Edelman J similarly limited the duty to 'child parishioners'.10 Steward J recognised a yet narrower duty, limited to 'Church events'.11
The majority, Gordon and Edelman JJ further held that a non-delegable duty may be breached by the intentional (criminal) conduct of the duty-holder or their delegate, thus overturning Lepore.12
The majority observed that the finding that a non-delegable duty could be breached by an intentional criminal act would not have the effect of imposing an absolute liability in such circumstances, given that:
The majority also held, contrary to the position taken by the New South Wales Court of Appeal, that in cases of either an ordinary duty of care, or a non-delegable one, it was not necessary for plaintiffs to prove that a defendant ought to have known that the specific perpetrator presented a risk of harm to children by committing acts of sexual abuse. Instead, the majority held that all that was required 'is that a reasonable person in the defendant’s position would foresee that a class of circumstances might (not would) involve a real (meaning a not far-fetched or fanciful) risk of a class of harm being suffered by a class of people'.14
Finally, turning to whether the CLA applied to AA’s claim, the Court found that the Diocese’s breach of the non-delegable duty owed to AA did not trigger s 3(b)(1)(a), which operates to exclude the application of the CLA to intentional acts intended to cause injury or death.15
Implications for you
AA has widened the scope of the relationships in which the existence of a non-delegable duty has be recognised, and the decision will impact dioceses Australia-wide. In NSW the impact will be largely on historical claims, pre-dating the 2018 commencement of Part 1B of the CLA, where plaintiffs cannot rely on the imposition of an organisational duty of care with a presumption of breach unless the organisation proves it took reasonable precautions.
The formulation of the duty by the majority will allow for non-Catholic/non-parishioner children to seek to establish the existence of a non-delegable duty of care if they can prove that they were in the care, supervision or control of a priest as a result of that priest purportedly performing a diocesan function.
More generally, it is now the law of Australia that the deliberate criminal/wrongful act of a delegate or third party can cause a breach of a non-delegable duty, irrespective of the nature of the duty-holding organisation or entity. This will impact all relationships in which a non-delegable duty is accepted to potentially exist, including school authorities, agencies and authorities responsible for care for children, dioceses, and other church entities who could be found to have owed a non-delegable duty, such as educational/teaching Congregations of Brothers and Sisters.
Further, the removal of a requirement that a defendant has specific knowledge that a risk is presented by a specific perpetrator, and the inclusion of a more general statement of reasonably foreseeable harm in the majority’s formulation of the non-delegable duty (as well as its observation that this would apply equally to an ordinary duty of care), means that the threshold to establish foreseeability of risk has been dramatically reduced. Foreseeability can be satisfied by an institution being aware that children were vulnerable to suffering personal injury in interactions with an adult carer.
The Court’s determination on the application of the CLA will however mean that in NSW, damages for breach of such a non-delegable duty will be assessed under the CLA, not at common law, disentitling plaintiffs to awards of general damages (including interest), and aggravated/exemplary damages.
1 The ‘Trustees’ were appointed as the proper defendant for the unincorporated organisation known as the Roman Catholic Church for the Diocese of Maitland-Newcastle, but for simplicity, we refer to the respondent as the Diocese.
2 New South Wales v Lepore (2003) 212 CLR 511.
3 Bird v DP (a pseudonym) (2024) 419 ALR 552.
4 Per Gageler CJ, Jagot and Beech-Jones JJ at [3] and [110].
5 Per Gageler CJ, Jagot and Beech-Jones JJ at [122].
6 Per Gageler CJ, Jagot and Beech-Jones JJ at [119].
7 Per Gageler CJ, Jagot and Beech-Jones JJ at [114] and [116].
8 Per Gageler CJ, Jagot and Beech-Jones JJ at [119].
9 Per Gordon J at [300].
10 Per Edelman J at [372] and [385].
11 Per Steward J at [447].
12 Per Gageler CJ, Jagot and Beech-Jones JJ at [4], [30] and [50], Gordon J at [278] and [324], and Edelman J at [334]. Because Steward J found that AA failed at an evidentiary level, he did not consider it appropriate to re-consider Lepore.
13 Per Gageler CJ, Jagot and Beech-Jones JJ at [47] and [30]. See also Gordon J at [284] – [285] and Edelman at [388].
14 Per Gageler CJ, Jagot and Beech-Jones JJ at [96].
15 Per Gageler CJ, Jagot and Beech-Jones JJ at [136], Gordon J at [293], and Edelman at [401].
