High Court judgment signals broader liability for religious institutions – AA v The Trustees of the Roman Catholic Church

On 11 February 2026 the Full Court of the High Court handed down its decision on AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2.

The case is particularly relevant for religious institutions and other not-for-profit organisations as it raises issues regarding:

1. Broadening liability owed by institutions (such as religious institutions) for criminal conduct of appointed priests. The court held a non-delegable duty is a direct duty of the institution, not a form of vicarious liability.
2. Conduct, even though the conduct was intentional and criminal in nature. The High Court held that the Diocese could not escape liability and can be found directly liable for the child sexual abuse committed by appointed delegates.

Summary

In summary at first instance the primary judge found that Fr Pickin had sexually assaulted AA multiple times in 1969 in the presbytery, causing AA harm. The primary judge concluded that the Diocese was vicariously liable for the sexual assault committed by Fr Pickin; that the Diocese owed AA a common law duty of care which it breached; and that AA was entitled to damages. The primary judge did not determine the claim that the Diocese breached a non-delegable duty owed to AA.

On appeal, applying New South Wales v Lepore (2003) 212 CLR 511, the Court of Appeal also unanimously held that there could be no non-delegable duty owed by the Diocese in respect of an intentional criminal act of one of its priests.

Subsequently, on further review the High Court held, by majority, that the Diocese was liable to AA for breach of a non-delegable duty of care it owed to AA in 1969.

The majority held that:

1. A non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property as to assume a particular responsibility for their or its safety;
2. A non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate, and to the extent the majority in Lepore held that there could be no common law non-delegable duty in respect of harm caused by an intentional criminal act, the decision should be re-opened and overturned;
3. On the facts as found by the primary judge, the Diocese in 1969 owed AA a non-delegable duty;
4. Fr Pickin’s sexual assaults of AA meant that the Diocese beached that duty, causing AA the harm as found by the primary judge; and
5. The limitations on personal injury damages imposed by the Civil Liability Act 2002 (NSW) applied to the determination of the extent of the liability of the Diocese.

Claims implications

The High Court’s Judgment in AA will no doubt encourage further claims against not-for-profit institutions, particularly those with historical or emerging issues of abuse.

However, whilst this case is a win for plaintiffs, the case also held that damages for breach of a non-delegable duty of care will be guided by the Civil Liability Act 2002 (NSW) (“Act”) which caps damages in certain instances. This includes instances such as those set out in AA wherein it was held that the Diocese was liable for negligence due to a breach of its non-delegable duty of care but was not held liable for an intentional wrongful act. Thus, the “sexual assault carve-out” in the Act, which may have avoided a damage cap, did not apply and the non-economic damages were reduced on appeal.

This case comes on the heels of the High Court’s prior decision in Bird v. DP [2024] HCA 41 wherein the High Court unanimously held that vicarious liability cannot be imposed in the absence of an employment relationship. This case had important implications for abuse claims and other tort claimants at the time as in the absence of an employment relationship, there must be some other legal basis to hold another party liable for the actions of a sexual perpetrator. The High Court’s decision in AA is consistent with Bird in that the breach of a non-delegable duty of care was the basis of liability in AA, not respondeat superior liability.

In short, any organisation acting in the place of parents (i.e. in loco parentis) in some capacity should be mindful of their potential non-delegable duty of care and protect themselves with tailored risk management procedures including specialty liability insurance products.