Review of AA v Diocese on Institutional Child Abuse: The High Court of Australia has delivered a significant decision strengthening institutional accountability for child sexual abuse.
In AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, the High Court confirmed that a Catholic Diocese was legally responsible for the criminal act of sexual abuse being committed by one of its priests in 1969.
The decision is important not merely because liability was established, but because of how it was established. The High Court clarified the operation of non-delegable duties of care, confirmed that such duties can extend to intentional criminal abuse, and reopened aspects of the earlier High Court decision in New South Wales v Lepore [2003] HCA 41, a case long relied upon by institutions resisting liability.
For survivors pursuing institutional abuse claims, the legal position to hold perpetrators to account is now much clearer.
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Child Sexual Abuse Claims In Australia AA v Diocese
AA was 13 years old when he attended gatherings at a church presbytery led by Father Ronald Pickin. The priest had been appointed by the Diocese and was expected to engage with young parishioners as part of his ministry.
The evidence established that Father Pickin invited boys, including AA, to the presbytery, supplied them with alcohol and cigarettes. Father Pickin sexually assaulted AA in a private area of the presbytery. The trial judge accepted AA’s evidence and also accepted evidence that Father Pickin had sexually abused other boys.
The issue before the High Court was not whether the abuse occurred. That had been determined as fact.
The issue was whether the Diocese itself bore legal responsibility for Father Pickin’s criminal acts of assaulting AA.
Vicarios Liability And Its Limits In AA v Diocese
Vicarious liability has become one of the most important legal mechanisms for holding institutions responsible in child abuse litigation. Traditionally, vicarious liability allows an employer to be held legally responsible for wrongful acts committed by an employee in the course of employment.
In the context of the Royal Commission into Institutional Responses to Child Sexual Abuse, the High Court clarified and strengthened this doctrine in Prince Alfred College Inc v ADC [2016] HCA 37.
In Price Alfred College the High Court recognised that institutional liability could extend to sexual abuse committed by an employee on a child. The critical question is whether the institution placed an employee in a position of authority, trust and control over the child, and whether the abuse was sufficiently connected to that position.
This “connection” approach acknowledged a practical reality: where an institution confers power, intimacy and authority upon an employee, and that position materially increases the risk of abuse, the institution can be held vicariously liable for intentional criminal conduct committed in misuse of that authority.
For many survivors abused by teachers, carers and other employees, Prince Alfred College opened a viable pathway to justice. However, vicarious liability remained dependent upon the existence of an employment or employment-like relationship.
That limitation became critical in AA’s case.
AA succeeded at first instance in the Supreme Court of New South Wales where it was found that the Diocese was vicariously liable for the abuse. This meant that they were held legally responsible for the actions of Father Pickin and were made to pay compensation to AA. The Diocese appealed.
However, after the trial judgment and before AA’s appeal was determined by the Court of Appeal, the High Court delivered its decision in Bird v DP [2024] HCA [41]. In that decision, the High Court confirmed that vicarious liability in Australian law is confined to true employment relationships. As a matter of legal analysis, a parish priest is not an employee of a Diocese.
In light of Bird, AA accepted in the Court of Appeal that the primary judge’s finding of vicarious liability could not stand. The Court of Appeal therefore allowed the Diocese’s appeal and set aside the finding of vicarious liability.
If the law had ended there, many survivors abused by clergy would have been left without a civil remedy. AA however, appealed to the High Court on grounds including breach of non-delegable duty of care and common law duty of care.
Closing One Door, Opening Another: Non-Delegable Duty of Care
In allowing AA’s appeal, the High Court in a powerful 5-2 decision, agreed with AA, and grounded liability of the Diocese not in vicarious liability for an employee, but in the doctrine of non-delegable duty of care.
A non-delegable duty arises in relationships characterised by vulnerability, institutional control, supervision and entrustment. It is not merely a duty to take reasonable care personally. It is a duty to ensure that reasonable care is taken by those to whom responsibility has been entrusted. A classic example of non-delegable duty of care is that owed by a school to a student.
The High Court found that a non-delegable duty of care was indeed, owed by the Catholic Diocese to AA as a child parishioner. Gageler CJ, Jagot and Beech-Jones JJ jointly articulated the Diocese’s non-delegable duty in clear terms:
“The duty the Diocese owed to AA in 1969 was a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese… reasonable care was taken to prevent reasonably foreseeable personal injury to the child.”
— AA at [2]
The Diocese appointed Father Pickin. It conferred authority upon him. It provided the premises and encouraged parents and children to trust Father Pickin and his authority. In doing so, it assumed responsibility for the safety of children placed under his supervision.
The Reopening Of Lepore
For more than two decades, institutions defending child abuse claims like AA’s framed in breach of non-delegable duty of care have relied on Lepore to argue that a non-delegable duty of care does not extend to intentional criminal acts committed by a delegate. Lepore was frequently invoked by institutions, to contend that sexual abuse, being deliberate and criminal, could not constitute a breach of a duty to “ensure reasonable care”.
In AA, the High Court revisited that understanding directly.
A majority of the High Court, Gageler CJ, Jagot and Beech-Jones JJ in joint reasons, with Gordon and Edelman JJ agreeing, clarified that there is no principled basis for carving out intentional wrongdoing from the scope of an established non-delegable duty. Their Honours explained that once a duty arises, the inquiry is whether the harm suffered falls within the risks against which the duty requires protection.
The fact that the harm was inflicted intentionally and/or criminally does not, of itself, remove it from the scope of that duty. In doing so they have rejected the restrictive interpretation of Lepore often relied on by defendant institutions in abuse claims.
The majority made clear that a non-delegable duty is a personal and direct obligation owed by the institution itself. It arises because the Diocese assumed responsibility for the safety of children placed under its authority and failed in its own obligation to ensure reasonable care was taken within that relationship. Where an institution confers power and control over vulnerable children to an individual, abuse committed in misuse of that authority may represent the very failure of protection that the duty was imputed to prevent.
The majority’s reasoning now represents the authoritative position: intentional abuse within an institution such as the Church can now clearly fall within the scope of a recognised non-delegable duty.
Having held that a non-delegable duty of care existed, the majority then found that when Father Pickin sexually assaulted AA, a child entrusted to his authority, and through that caused an injury, the non-delegable duty of care was breached and that AA was entitled to compensation.
Damages And Statutory Limits In AA v Diocese
The trial judge assessed damages at approximately $636,000.
However, the High Court held that the statutory caps in the Civil Liability Act 2002 (NSW) applied to this form of liability. Because the Diocese did not itself commit the assault, the statutory exclusion for intentional sexual assault did not apply. The award was therefore reduced to approximately $335,960.
While the damages were reduced, the finding of liability was unaffected.
Why This Decision Matters
This decision confirms that institutional liability is not confined to vicarious liability.
Even where perpetrators are not employees, institutions may owe a non-delegable duty. It reflects a principled development of the law grounded in vulnerability, authority, institutional control and power. For survivors, the law is now clearer. Institutions cannot avoid responsibility simply because abuse was intentional or because the perpetrator was not formally an employee.
The High Court’s decision in AA v Diocese of Maitland-Newcastle confirms what survivors have always known, institutions must be held to account for the abuse that happened on their watch. Whether the perpetrator was a priest, a teacher, a carer, or a government employee, you may now have a clearer path to justice than ever before.
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Jake Edwards is a Senior Associate at O'Brien Criminal & Civil Solicitors, where he practises across intentional torts, personal injury, and civil litigation. He holds an LLB and a Graduate Diploma in Legal Practice, having graduated from the University of Wollongong in 2015.
