Turning the page on Lepore: High Court opens door to liability for non-delegable duties to encompass intentional criminal acts

On 11 February 2026, the High Court of Australia delivered its judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 which considered whether a Catholic Diocese owed a non-delegable duty of care to a child parishioner who was sexually abused by a priest in 1969, and, if so, whether that duty extended to intentional criminal acts. The High Court allowed the appeal, restored the trial judgment in favour of the appellant on liability and reduced damages to reflect the statutory caps under the Civil Liability Act 2002 (NSW).

Background to the AA decision

The Appellant (AA) was sexually abused in 1969 by Father Ronald Pickin, a priest of the Diocese of Maitland-Newcastle. The abuse occurred in the Presbytery of St Patrick’s Catholic Church in Wallsend. AA commenced proceedings in the Supreme Court of NSW against the Trustees of the Roman Catholic Church for the Diocese, who were appointed the "proper defendant" for the purposes of Div 4 of Part 1B of the Civil Liability Act, seeking damages for personal injury. AA claimed that the Diocese was negligent, breached a non-delegable duty of care, and was vicariously liable for the abuse. The Primary Judge found that multiple assaults occurred in the Presbytery, that the Diocese was vicariously liable and that it owed and breached a common law duty of care in relation to AA – but left the non-delegable duty claim undecided.

The Diocese appealed the Primary Judgment to the NSW Court of Appeal. Approximately eight weeks after the Primary Judgment was delivered, the High Court of Australia handed down judgment in Bird v DP (2024) 419 ALR 552 and held that a Diocese was not vicariously liable for the tortious actions of a priest because there was no employment relationship. Accordingly, on appeal, the parties agreed that the finding of vicarious liability in the Primary Judgment could not stand in light of Bird. The NSW Court of Appeal allowed the appeal and, applying New South Wales v Lepore (2003) 212 CLR 511, also held that there could be no common law non-delegable duty of care in respect of intentional criminal acts.

Why the High Court allowed AA's appeal

The High Court allowed the appeal and by majority (Chief Justice Gageler, Justice Jagot and Justice Beech-Jones) held that the Diocese was liable to AA for breach of a non-delegable duty of care owed to AA in 1969. The High Court restored the Primary Judgment in favour of AA on liability and reduced damages to reflect the statutory caps under the Civil Liability Act. The key conclusions were:

• the High Court unanimously agreed that a non-delegable 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";

• the majority found, based on a close factual analysis of the relationship between the Diocese and AA at that time, that the Diocese owed a non-delegable duty to ensure reasonable care was taken to prevent foreseeable personal injury to a child under the care, supervision or control of a priest performing diocesan functions. The majority held that there was "no principled basis" to distinguish the position of the Diocese from that of a school authority at that time;

• the majority decision in Lepore, to the extent that it suggested that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act, should be re-opened and overturned. Justice Gordon and Justice Edelman agreed with the majority that a non-delegable duty may be breached by the intentional conduct of the duty holder or their delegate; and

• it was held that the limitations on personal injury damages imposed by the NSW Civil Liability Act applied to a breach of non-delegable duty, and therefore damages were reduced from $636,480 to $335,960.

Broader implications

Doctrinal shifts and coherence

The High Court has removed the categorical exclusion of intentional criminal acts from the scope of common law non-delegable duties and overturned that aspect of the judgment in Lepore. The majority relied on a series of historical cases (including The Commonwealth v Introvigne (1982) 150 CLR 258; Kondis v State Transport Authority (1984) 154 CLR 672 and Burnie Port Authority v General Jones Pty Ltd (1993) 179 CLR 520) to find that the conceptual premise of a non-delegable duty was as a:

"more stringent kind of duty than that imposed by the ordinary law of negligence, able to be imposed only where the relevant kind of harm was reasonably foreseeable".

The majority held that any limitation excluding intentional criminal acts from the scope of a non-delegable duty would introduce a fundamental incoherence with two existing common law doctrines. First, it is consistent with modern vicarious liability principles which accept that an employee's intentional criminal conduct can fall within the course of employment. Second, it accords with established negligence principles under which a duty of care can extend to the criminal acts of third parties where such acts are reasonably foreseeable.

However, the High Court emphasised that non-delegable duty is a form of direct personal liability to ensure reasonable care is taken rather than a type of vicarious liability, establishing a clear doctrinal boundary between these two separate bases of liability. The judgment also aligns Australian law with developments in the United Kingdom, which accept that non-delegable duties can be breached by deliberate wrongs where the duty otherwise exists.

Expansion and limits of institutional responsibility

By recognising that a Diocese owed a non-delegable duty to AA which was analogous to that of a school authority, the High Court has confirmed that any entity assuming care, supervision or control over vulnerable persons may owe a duty to ensure reasonable care is taken, even where harm is inflicted intentionally by a delegate. As observed by Justice Edelman overruling Lepore, this:

"...will have a significant effect upon the common law in this country, including upon proceedings concerning historic sexual abuse, such as this case".

Any legal entity (or unincorporated entity which is required to be treated as a legal entity, such as the Diocese) which assumes responsibility to ensure reasonable care of another’s person or property will be liable if a third party intentionally causes injury to that other person or their property within the scope of the responsibility assumed. This duty is defined by the relationship between the parties (rather than, for example, any particular location or time) and reflected in the finding of the majority that:

"It is relevant that the non-delegable duty of a school authority is not confined to school hours or school grounds but extends to such times and places that the school permits the pupil, as a pupil, to be present. This includes, for example, school camps and sporting and other events supervised by teachers of the school."

However, this expansion of liability is ultimately limited by the fact that:

• these duties arise only within recognised classes grounded in vulnerability and assumption of responsibility; and

• they remain constrained by foreseeability and the standard of reasonable care.

The intentional nature of the act does not automatically preclude or establish liability. Rather, the relationship and scope of responsibility (and, in vicarious liability, the course of employment) remain the operative pre-conditions.

Interaction with the Civil Liability Act

This decision also clarifies that the Civil Liability Act applies to the assessment of personal injury damages in cases arising from an intentional criminal act by a delegate resulting in a breach of a non-delegable duty. The Civil Liability Act operates to place restrictions and limits upon aspects of the recovery of damages when compared with an assessment of damages under common law principles and, in this case, resulted in a substantial reduction in the damages awarded (from $636,480.00 to $335,960).

In reaching this conclusion, the majority found that the breach of a non-delegable duty did not engage the exclusion in section 3B(1)(a) of the Civil Liability Act for intentional acts, which states:

"(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows—

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person"

As observed by the majority, the non-delegable duty-holder's liability was a "direct and personal liability of the duty-holder" to have ensured reasonable care was taken. It was not a form of vicarious liability for the intentional acts of another person. Accordingly, it should not be treated as the "same liability" incurred by the delegate and there was no basis for attributing any intention on the part of the delegate to the Diocese. On this basis, the exclusion in section 3B(1)(a) was found not to apply.