Scope of Non-Delegable Duties of Care Refined

Content warning: this article discusses child sexual abuse and may be distressing for some readers.

Overview

In a landmark decision, the High Court of Australia determined that a non-delegable duty of care may be breached by the intentional conduct of a delegate, overturning longstanding authority of New South Wales v Lepore (2003) 212 CLR 511, which found that a common law non-delegable duty could not arise in respect of harm caused by an intentional criminal act. The decision significantly refines the scope and operation of non-delegable duties in Australian law.

Background

The appellant, AA (a pseudonym), commenced proceedings in the Supreme Court of New South Wales in 2024, alleging that he was sexually abused on multiple occasions during the 1960s by Father Ronald Pickin, a priest of the Roman Catholic Diocese of Maitland-Newcastle (the Diocese).

Supreme Court of New South Wales

The primary judge accepted that the alleged abuse occurred, and found that:

• the Diocese was liable in negligence for breach of a duty to take reasonable care owed to AA; and
• alternatively, the Diocese was vicariously liable for the sexual abuse committed by Father Pickin.

While AA had pleaded that the Diocese owed him a non-delegable duty of care, the primary judge did not determine that claim in light of the above findings.

Judgment was entered for AA in the sum of $636,480, on the basis that the Civil Liability Act 2002 (NSW) (the Act) did not apply to the Diocese’s vicarious liability for Father Pickin’s intentional acts of sexual assault.

NSW Court of Appeal

On appeal, AA accepted that the finding of vicarious liability could not stand following Bird v DP [2024] HCA 41.

The Court of Appeal held that:

• the Diocese did not owe AA a relevant common law duty of care; and
• applying New South Wales v Lepore, a non-delegable duty could not extend to intentional criminal conduct committed by a priest.

High Court Decision

AA appealed to the High Court, contending that the Court of Appeal erred in holding that the Diocese did not owe him a non-delegable duty of care which was breached by Father Pickin’s sexual abuse.

The High Court upheld the primary judge’s factual findings that Father Pickin abused AA. The central issue was therefore whether the Diocese was liable for breach of a non-delegable duty of care arising from child sexual abuse committed by its priest. The majority answered this question affirmatively.

Non-Delegable Duty of Care

A non-delegable duty of care arises where the duty-holder who has undertaken the care, supervision, or control of another person (or their property), stands in a relationship that assumes a particular responsibility for that person’s safety.

In New South Wales v Lepore, the High Court found that a non-delegable duty could not arise in respect of harm caused by an intentional criminal act. However, the majority of the High Court overturned Lepore to the extent that it excluded intentional wrongdoing from the scope of non-delegable duties, holding that such a duty may be breached by the intentional conduct of the duty-holder’s delegate, regardless of employment status.

Gageler CJ, Jagot and Beech-Jones JJ held that the Diocese owed AA a non-delegable duty for the following reasons:

• Foreseeability: The Diocese ought to have known, by 1967, of the risk of personal injury to children, including sexual abuse by priests.
• Vulnerability: Children were particularly vulnerable due to their immaturity, a fact known to the Diocese.
• Nature and scope of the relationship: The child was under the care supervision or control of a priest purportedly performing a function of a priest of the Diocese. The location of the abuse, the identity of the perpetrator (whether it is a priest or a third party), and whether Father Pickin was in fact performing priestly duties at the time were not determinative.

The Court adopted a broad approach, holding that:

The High Court determined that the relevant inquiries in assessing whether criminal conduct falls within the scope of a non-delegable duty are whether:

1. a relationship of authority, supervision, trust, care, or control existed between the institution and the victim; and
2. the harm was of a foreseeable kind within the scope of the responsibility assumed.

Breach of Non-Delegable Duty of Care

The Diocese argued that the alleged precautions to prevent sexual assault by Fr Pickin were not reasonable, on the basis that the risk of Fr Picking sexually assaulting a child itself was not reasonably foreseeable to the Diocese.

However, the majority held that the Diocese had mischaracterised the pleaded “precautions.” They were not, in fact, precautions that the Diocese itself could reasonably have taken to prevent the harm.

Instead, the majority considered that those “precautions” would only be relevant if the alleged breach were directly attributable to the Diocese. In this case, however, the relevant conduct was that of a delegate. Accordingly, the only meaningful “precaution” in assessing the Diocese’s liability was the delegate refraining from committing the intentional act.

Therefore, because Fr Pickin carried out the intentional act, the Diocese is taken to have breached its non-delegable duty of care.