From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Wednesday 11 February 2026 02:32

To: obligations@uwo.ca

Subject: ODG: HCA extends NDD liability to intentional torts, overturns Lepore

Dear Colleagues;

The High Court of Australia, by a 5-2 majority, has today in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (11 February 2026) overturned its previous ruling in Lepore and held that there can be strict liability based on non-delegable duty for an intentional tort of battery. See https://www.hcourt.gov.au/cases-and-judgments/judgments/judgments-1998-current/aa-v-trustees-roman-catholic-church-diocese-maitland-newcastle .

The case involved child abuse committed by a Roman Catholic priest in Wallsend (incidentally a suburb of Newcastle where I am based.) The boy, 'AA', was invited back to the priest's home along with others, contacted by the priest teaching Roman Catholic 'scripture' classes in their state school. At trial the judge had found for AA on the basis of vicarious liability, a finding that could not stand once the High Court in Bird had found that vicarious liability could not apply to non-employees. (It has long been accepted that clergy are not employees). The judge also found that there had been personal negligence by the Diocese in not foreseeing the danger of abuse. The NSW Court of Appeal overturned this decision, and also noted that they could not use the doctrine of non-delegable duty (NDD) to impose liability as the High Court in Lepore had ruled NDD could not be used in cases of intentional torts.

Today's decision overturns this aspect of Lepore and finds that there was liability based on NDD. The majority decisions are (1) a joint judgment of GAGELER CJ, JAGOT AND BEECH-JONES JJ  and (2) two separate judgments from Gordon J and Edelman J, agreeing with the 'plurality' though with a slightly different take on some of the issues. Steward and Gleeson JJ dissent.

Even just focusing on the majority judgments, there is a lot of material. There are also comments on fact finding, and a holding that the Civil Liability Act 2002 (NSW) applies to limit a damages award. However, there are some general comments that can be made on the NDD issues.

The key point, of course, is that NDD can extend to intentional torts. This is frankly acknowledged by Edelman J to be a major change:

[341] The overruling of Lepore 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 - including any unincorporated organisation like the Diocese that is required to be treated as a legal entity - which assumes responsibility to ensure that reasonable care is taken of another's person or property (goods or land) will be liable if a third party intentionally causes injury to that other person or their property within the scope of the responsibility assumed. 

The plurality rule that the already recognised NDD owed by schools to their pupils (in Australia in Cth v Introvigne, in the UK Woodland v Essex) can be incrementally extended to a church which invites children to join its activities. The duty flows not only from the vulnerability of children, but from the fact that they are within the scope of the priest's duties: [114] 'under the care, supervision or control of a priest of a diocese as a result of the priest having purportedly performed a function of a priest of the diocese.'

One of the differences, I think, between the plurality on the one hand, and Gordon and Edelman JJ on the other, is the view of the plurality that even a non-Catholic child who joined in these activities would have been owed this NDD:

[119] A child being under the care, supervision or control of a priest of a diocese as a result of the priest purportedly performing a function of a priest of the diocese effectively maintains the requisite connection between the relationship of a diocese and a child without other arbitrary and illogical limitations. A child under the care, supervision or control of a priest of a diocese as a result of the priest purportedly performing a function of a priest of the diocese may or may not be a "child of the parish" in the sense that the child may or may not live in the parish. Residence or non-residence in a parish, however, is a purely arbitrary distinction. Similarly, a child may or may not be Catholic but may still be under the care, supervision or control of a priest of a diocese as a result of the priest purportedly performing a function of a priest of the diocese. When the proper rationale for the non-delegable duty is exposed, there is no basis for discriminating between Catholic and non-Catholic children in this context. 

In contrast, the other majority Justices would confine the duty to Catholic children of the parish: see [162] 'child parishioners' (Gordon J), [334] Edelman J.

The judgment of Edelman J is, as always, very interesting, and some time is spent on the difference between a duty of care 'imposed' by the law, and one 'assumed' by the defendant- see from [342]. The duty here was 'assumed' by the church accepting responsibility for children it was in contact with.

There is a helpful summary of agreement between different members of the court early in the plurality decision:

[6] While there are differences between our reasoning and that of each of Gordon J and Edelman J, and we have reasoned to a different result in this case from Steward J, we are authorised by Gordon, Edelman and Steward JJ to record our agreement that 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.4 Further, we and Gordon J and Edelman J agree that a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate.

The essence of the plurality decision can be seen in para [122]:

[T]he Diocese owed a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child. The scope of this duty extended to the harm caused to AA by the Diocese failing to ensure that reasonable care was taken against the foreseeable risk of personal injury to AA, including from the intentional infliction of such injury by the Diocese's own delegates, specifically priests, and by third parties.

All of the majority decisions critique the reasoning offered in Lepore, of course. At [31]-[49] there is a careful analysis by the plurality of the factors put forward in John vFederal Commissioner of Taxation (1989) 166 CLR 417 at 438-440 to justify overturning a previous High Court decision, and the plurality conclude that overturning is justified taking all these matters into account:

[50] The exclusion of an intentional criminal act from a non-delegable duty of care established by Lepore reflected judicial policy choices which are unable to be sustained consistently with principle, have not led to any useful result but rather have created incoherence in the common law, and have not been independently acted upon. For these reasons Lepore, to the extent it decided that a non-delegable duty to ensure that reasonable care is taken cannot apply to an intentional criminal act, should be overturned. 

It is interesting to note that they all assert that the term 'negligence' can include the intentional infliction of harm. See the comments at [18]-[19], eg at [19]: 'Their Honours were not suggesting that liability in negligence cannot apply to intentional acts or intentional acts intended to cause harm.' This is an aspect that will need further thought, I think.

It is worth noting the comments at [31]:

... Accordingly, it is not right to conceive of the non-delegable duty as imposing absolute liability. Although a non-delegable duty may result in liability being imposed on the duty-holder without personal fault on the part of the duty-holder, the non-delegable duty-holder cannot be liable for breach of a non-delegable duty unless either the duty-holder personally or the delegate has defaulted in the taking of reasonable care in respect of the person to whom the duty is owed. Consistent with the view of McHugh J, an intentional criminal act of a delegate which injures the person to whom the duty-holder owes the non-delegable duty is necessarily a failure by the delegate to take reasonable care and therefore a failure by the duty-holder to ensure that reasonable care is taken.

I comment on some of these issues in a paper linked here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5052907 at 111-112. NDD only arises where the delegate has committed a wrong, it is not 'absolute' in the sense that any harm suffered by a victim can be sheeted home to the duty-holder.

There is much more to note, but I think that will do for a preliminary comment. A number of list members are quoted in the decisions.

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

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Blog: https://lawandreligionaustralia.blog

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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