From: Robert
Stevens <robert.stevens@law.ox.ac.uk>
Sent: Wednesday
11 February 2026 10:25
To: Neil
Foster; obligations@uwo.ca
Subject: RE: HCA
extends NDD liability to intentional torts, overturns Lepore
There is more joy in heaven.
It is good to see McHugh J's powerful dissent in NSW
v Lepore vindicated. The decision of the majority in that case was
indefensible. When a commercial party who ought to win loses, we can shrug our
shoulders. But the same is not true where the loser is an abused child.
The mistake in NSW v Lepore was to see
'non-delegable duties' as a kind of extended vicarious liability. If that were
true, then it makes no sense to hold the employer liable for intentional torts,
any more than it does for vicarious liability. Child abuse is not an
'unauthorised mode of an authorised act.'
But the liability is not vicarious at all. If P bails
a horse to D, and D reasonably sub-bails it to an apparently competent person,
if the horse is eaten by the sub-bailee, D has breached their duty to P. The
duty the bailee assumes is that care will be taken of the goods, not to
take care. It doesn't matter whether the sub-bailee carelessly loses the
horse or deliberately kills it.
What also confuse us is thinking in terms of one Big
Omnibus Tort of Negligence. The duty the bailee assumes is not the same as the
duty we all owe to each other not to foreseeably injure one another through
negligence. But for the absence of a drop of consideration, it is the same as a
contractual warranty that care will be taken.
As it is for the bailment of horses, so it is for
hospitals who admit patients, or schools that accept pupils, or (in civilised
jurisdictions unlike mine) occupiers who invite people onto their premises.
If a religious Diocese assumes responsibility for a
child, by inviting them to be under their supervision and care, the child
acquires a right that care will be taken of them. If they are abused, that is a
breach of the Diocese's duty.
The plurality are close to seeing all this ([6] is
good), but frustratingly muddy the waters. So, we re told the duty is:
'characterised by an assumption of responsibility of
care to prevent reasonably foreseeable harm to the plaintiff on the part of the
defendant and particular vulnerability to that kind of harm on the part of the
plaintiff.' [47]
This emphasis on 'vulnerability' is unfortunate.
Invoking vulnerability has a strong rhetorical pull, but adds nothing. If, in
the bailment example, the bailor is the Federal Government of Australia, does
that make any difference? Of course not. If I walk passed a child drowning in a
puddle, they are extremely vulnerable, but the common law doesn't impose duties
of rescue, even when easy to do so.
Similarly, the Big Negligence view leads the plurality
to say [21]
'Rather, a non-delegable duty to ensure that
reasonable care is taken is a "special" kind of common law duty of
care in negligence. It is a duty which obliges the duty-holder not merely to
take reasonable care to avoid a foreseeable risk of injury to another person
but to ensure that reasonable care is taken to avoid a foreseeable risk of
injury to that other person by any delegate of the duty-holder, being a person
performing for the duty-holder a function to which the duty relates.'
This repeats the mistake of the majority in Lepore of
thinking of non-delegable duties as a kind of liability for the wrongs of
someone else. There are however situations where it is impossible for the
claimant to establish that any individual has been careless. If I am admitted
to hospital and die, when reasonable care would have assured that I lived, my
estate has a claim. But the reason for the failure may be incapable of being
pinned on any single person: it may be a system failure that is not the result
of the negligence of any one individual. It does not matter. It is not a
'special' duty, if by that is meant some odd exception to a general negligence
standard.
It is amazing to think that it is now 27 years since
the SCC correctly decided Bazley v Curry, but for the wrong reasons
because of the way the case was argued. As is well known, the Canadian and
English ultimate appellate courts found for the claimants on similar facts but
on the basis of expanding, and consequently doing great damage to, the law of
vicarious liability. There has been an incoherent retreat from that in England,
but Lister v Hesley Hall Ltd is still, unfortunately, the law.
With AA v Trustees of the Roman Catholic Church,
at least Australian law is put back on a more stable footing.
R
From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: 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
My publications: http://ssrn.com/author=504828
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.
CRICOS Provider 00109J