by Professor Paula Giliker, University of Bristol Law School
On 17 June 2025, the High Court of Australia (HCA) gave special permission to appeal in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN [2025] HCA Trans 47. The matter is listed for hearing in the HCA on 7 August 2025. AA involves a claim by the plaintiff who, in 1969 (then aged 13), was allegedly sexually abused by an assistant priest in a local church presbytery after being invited there to consume alcohol, smoke cigarettes and play on a gambling machine in the priest’s bedroom. At first instance ([2024] NSWSC 1183), the judge had found the Catholic Diocese to be vicariously liable for the priest’s wrongdoing and that the Church had breached its duty of care to the plaintiff. However, judgment was given before the game-changing decision of the HCA in Bird v DP [2024] HCA 41. As I have discussed earlier, in Bird, the majority of the HCA held that, in Australia, the principles of vicarious liability are confined to employment relationships. On this basis, the torts of priests, who are not technically employees, would not be covered by vicarious liability. The HCA rejected the suggestion, found in UK cases such as The Catholic Child Welfare Society v Various Claimants (CCWS) [2012] UKSC 56 and in Canada that the relationship test for vicarious liability could be extended to relationships “akin to employment” (that is, relationships not technically of employment but practically very similar in nature). This, argued the majority, would produce uncertainty and indeterminacy.
Australian law post-Bird
The impact of Bird on Australian law has been profound. Survivors of clerical sexual abuse can no longer frame their claims on the basis of vicarious liability. This raises huge problems for survivors of historical abuse where perpetrators are often dead or untraceable or without means. While negligence claims may be brought against the Church, the burden is on the plaintiff to gather sufficient evidence to show that it was negligent at the time of the abuse, that is, despite the ignorance of abuse in the past, the Church could be shown to have failed to take reasonable steps to protect the survivor.
As might be predicted, on appeal in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72, the Church relied on Bird to overturn the finding of vicarious liability. It was successful. It was also successful in reversing the finding of negligence. In so doing, AA highlights the challenges survivors face in sustaining an ordinary negligence claim, here based on evidence and witness recollections from events that occurred over 50 years ago. Witness testimony in AA was conflicting, and dates confused (not uncommon in historic cases but inevitably undermining the plaintiff’s case). Crucially, the Court of Appeal was not convinced that, in 1969, the Bishop or other senior members of the Church would have been aware of the risks of wrongdoing by priests generally, let alone in respect of the priest in question. In the words of Bell CJ, “justified community outrage at established or admitted cases of historic child sexual abuse does not assist in the case-by-case assessment of claims” ([5]).
An Alternative Approach to Vicarious Liability: The Non-Delegable Duty (NDD)
What is important about AA, however, is that, by a notice of contention, the plaintiff now sought to uphold the judgment based on an NDD. The challenge for the NSWCA was therefore whether it would support the NDD in the historic sexual abuse context. The HCA in Bird ([36]) had recognised the distinctive nature of the non-delegable duty (NDD) and, importantly, that it was distinct from the doctrine of vicarious liability:
A “non-delegable” or “personal” duty of care is a duty of a special and more stringent kind. It is not merely a duty to take care, but a duty to ensure that reasonable care is taken; to ensure that the duty is carried out; or to procure the careful performance of work [assigned] to others. Liability for breach of a non-delegable duty is therefore direct – not vicarious. (references and quotation marks omitted).
This argument had not been addressed at first instance (there was no need when vicarious liability was still on the table) and, importantly, was not ruled out by Bird (the Court refused to hear the NDD argument for procedural reasons). Nevertheless, the HCA did refer (at [42]) to its earlier decision in New South Wales v Lepore (2003) 212 CLR 511 that had rejected a non-delegable duty on a school to take reasonable care to prevent its pupils from being sexually abused.
Given Lepore was an HCA decision, the Court of Appeal’s answer to the NDD argument in AA was predictable:
… it is not open to any court below the High Court to accept it. As the law in Australia presently stands, a defendant cannot be liable for breach of a non-delegable duty based on an intentional wrong by the delegate … That was the force of Gleeson CJ’s reasoning in Lepore at [38]-[39], to the effect that a majority of the Court of Appeal had erred in relying upon a non-delegable duty for the sexual assaults committed at a school … Gummow and Hayne JJ were of the same view, stating at [265] that the understanding of a non-delegable duty “should not be extended to include responsibility for intentional defaults by delegates” (per Leeming JA, [160]).
On this basis, special leave to appeal to the HCA was sought.
Will Lepore be overturned by the HCA?
In asking for special leave in AA, Counsel identified the existence of the NDD to be a legal question that only the HCA could resolve, and which was important to a very large class of litigants. Will, then, the HCA overturn Lepore and permit a judicial route to compensation for survivors of historic child sexual abuse?
As I have discussed elsewhere, a non-delegable duty for intentional torts is controversial. It has yet to receive support in the common law world and divides both judges and academics. Jagot J. in Bird criticised it as “incoherent and indeterminate” ([255]). Leeming JA in AA was equally critical, highlighting at [166], what he saw as its conceptual uncertainty, emphasising that the common law, as a general rule, disfavours strict liability. Justice Leeming (an expert on the relationship between the common law and statute) also raised a further objection. There has been legislation in Australia to assist abuse survivors, although prospective in nature (so no assistance in historic cases). NSW, for example, introduced in 2018 a new s.6F (Liability of organisation for child abuse by associated individuals) into its NSW Civil Liability Act. This imposes a duty on an organisation, such as the Church, that has responsibility for a child to take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse of the child in connection with the organisation’s responsibility for the child. The duty is subject to a reversed burden of proof, rebuttable if the organisation can establish that it took reasonable precautions to prevent the child abuse. An NDD would obviously conflict with these limited statutory reforms. Can it be argued, then, as Leeming JA suggested, that a new NDD would be contrary to the legislative will in that it would essentially render s.6F redundant? This raises the sorry prospect of well-intentioned, albeit limited, statutory reforms blocking judicial legal development.
In contrast, Edelman and Steward JJ did show support for NDDs in the earlier case of CCIG Investments Pty Ltd v Schokman [2023] HCA 21, drawing, (at [81]), on leading writers who suggest that imposing liability for breach of a non-delegable duty of care in cases of child sexual abuse is more appropriate than vicarious liability.
We should also not neglect the public reaction to Bird. Survivors’ groups are now lobbying for legislative change. Crossbenchers in Victoria, NSW and ACT have introduced private members’ bills in an attempt to overturn the High Court’s decision in Bird. One key issue with the legislative option is that, to effectively support survivors, it would have to be retrospective in nature (legislation is usually prospective). Retrospective legislation is generally regarded as problematic, not least in that it conflicts with the rule of law . The rule of law requires that people can only be punished in accordance with the law and that the law should be known and accessible. In contrast, legal judgments raise no such objections in that they are by their very nature retrospective in that they state the law that is in force.
Given the above, is Australia on the cusp of overturning Lepore and permitting an NDD for intentional torts? Given the differences in judicial opinion, it is hard to predict, but it is likely to result in a split court. In opposing leave to appeal, the Church counsel also raised the unresolved factual uncertainties identified by the majority of the Court of Appeal in AA, which would render it difficult to establish an NDD on the facts of this case even if it was accepted as a matter of principle. The stakes are high. 10 years have passed since the Australian Royal Commission published a report (Redress and Civil Litigation report | Royal Commissions) advocating for legal change to make it easier for survivors to obtain compensation for historic sexual abuse in Australia. Will the national outcry that followed the Bird decision lead the HCA to overturn Lepore? And even if it does, will it lead to compensation for AA?
Impact outside Australia
The AA ruling will also be important for other common law jurisdictions which currently do not permit an NDD for intentional torts. Given that the UKSC in Woodland v Essex CC [2013] UKSC 66 relied heavily on Australian authority in finding a NDD on a school for failing to take reasonable care, would a change of law in Australia support change in the UK? Or, alternatively, will a decision to follow Lepore undermine any case for change? Given the tougher position taken by the UKSC in BXB v Trustees of the Barry Congregation [2023] UKSC 15 towards vicarious liability claims in abuse cases, AA is therefore one to watch not only in Australia …