By Amy Griffiths, Senior Associate, Sonya Parsons, Partner and Luke Geary, Partner

Summary of the Decision

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle  is the first case in New South Wales to find a religious institution both vicariously and directly liable for the harm suffered by a plaintiff arising from child sexual abuse. The finding of direct liability against the Diocese is likely to have significant implications for future historical child sexual abuse cases particularly where a finding of vicarious liability is not available (such as with respect to the conduct of a volunteer).

The Diocese denied it was either vicariously liable or directly liable to AA, including not admitting that it owed him a duty of care. Schmidt AJ found that the Diocese was both vicariously[1] and directly liable[2]to AA as it had failed to take reasonable precautions consistent with its duty of care to AA. Schmidt AJ also reviewed AA’s evidence in some detail, which had been impacted by the passage of time and had some deficiencies.[3]

Key Takeaways

This case has significantly expanded the scope of vicarious liability and negligence in New South Wales in historical abuse cases.

There seems to be few arenas where vicarious liability would not be found for tortious acts of abuse by priests and perhaps also other religious personnel.  That includes circumstances where a non-religious institution would be unlikely to be responsible for a lay person.

Additionally, we will have to see whether the finding of negligence in this case will lead to courts being open to make similar findings in different settings where the same argument may be successfully made, such as with respect to different religious institutions, schools, sporting institutions or community associations.

If this decision is not successfully appealed from, an increase in claims of negligence in these types of cases is significant and likely.

Institutions should be alert to any prior disclosures of abuse by associated persons as founding the basis for a claim in negligence by way of constructive knowledge even if the institution was not aware of the disclosures.

Overview of the key facts

Father Pickin was a parish priest at St Patrick’s Church, Wallsend and taught religious scripture at Wallsend High School in 1969. Father Pickin died in 2015 and was never formally charged with any child sexual abuse offences. In 1969, when he was 13/14 years old, AA attended the Church and was a student at Wallsend High School. Father Pickin invited AA and other boys to the presbytery to play a poker machine and provided AA with beer and cigarettes before the assaults took place.  AA was said to have been ‘paralytically drunk’.

Mr Perry provided evidence to support the Diocese’s defence. Mr Perry is a police officer who was a childhood friend of AA and attended the presbytery with AA, but was never abused by Father Pickin. Mr Perry held Father Pickin in high regard and ‘plainly found it difficult to credit that Father Pickin had assaulted AA’.[4]Despite some contradictions and deficiencies of evidence from AA, considering Mr Perry’s evidence, Schmidt AJ found AA’s evidence to be persuasive.

Evidence was provided that at least one complaint about Father Pickin’s alleged offending was made to another priest, Father Doran, in 1966. Schmidt AJ accepted that this complaint was in fact made and that it was not reported further to the Diocese. Thus, that the Diocese had no direct knowledge of Father Pickin’s offending.

Expert evidence was given by Father Dillon, who gave evidence that:

1. in the 1960s a standard expectation was that priests’ engagement with young people was the most important and valued part of their ministry;
2. fears about leaving a child alone with a non-family member adult were rare in the late 1960s, however complaints of offending by priests, religious brothers and religious sisters was known to those in positions of high authority in the Church. The extent of this knowledge, and whether it was knowledge of those in the Diocese of Maitland-Newcastle or the wider Catholic Church, is unclear from the judgment.

Her Honour also referred to the Cunneen Report, being the Special Commission of Inquiry into matters relating to the police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland–Newcastle from 2014 by Margaret Cunneen, SC.  The judgment refers to that report setting out that the then Bishop of the Diocese having to deal with the risks which priests posed in the 1950’s.  It is not clear from the judgment the extent to which there was knowledge within the Diocese of specific risk of harm of sexual abuse by priests.  Her Honour acknowledged and accepted Father Dillon’s evidence that such a risk was not widespread in the community at that time but that there was ‘awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children, given the complaints which they had received’.[5]

Legal reasoning and points of interest

Schmidt AJ considered the evidence provided by AA and provided reasoning as to why she found the evidence persuasive, despite some limitations. Schmidt AJ found that AA was sexually assaulted by Father Pickin and that the Diocese owed him a duty of care which it breached. The finding that the Diocese was negligent has significant implications for similar claims. Schmidt AJ found the Diocese also vicariously responsible for those assaults.

Discussion of evidence

As in many cases of historical sexual abuse, there was a considerable delay in the evidence being heard and the complaint being bought forward. AA’s evidence was acknowledged to have been impacted by the time passed, Father Pickin was deceased, and other evidence was not available. AA changed some of his evidence in cross examination and there were some other inconsistencies. However, Schmidt AJ found AA’s evidence persuasive.

She found the evidence was ‘not too vague or unconvincing to permit it being accepted as truthful despite contradicting evidence from Mr Perry’.[6] Schmidt AJ believed that people who experienced sexual assault could recall the traumatic event of being assaulted, whilst being mistaken about events surrounding the assault. This approach supports some more recent judicial approaches to historical child sexual abuse cases, including the statements of the majority judgment of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.

Liability of the Diocese

Vicarious liability

The Diocese was found vicariously liable for the abuse, notwithstanding that the position that Father Pickin held, as a priest, was one ‘outside the formal boundaries of an employee/employer relationship’. The Diocese was found to have provided Father Pickin with a ‘special role’, allowing him to teach scripture at Wallsend High School, providing him with access to children and entitling him to invite children to his presbytery on Friday nights where he was required to ‘live alone because of his role as a parish priest’.[7] Schmidt AJ was satisfied that Father Pickin’s role enabled him the opportunity and occasion to have the ‘authority, power, trust, control and ability to achieve the intimacy he had with his victim’.[8] It should be noted that Bird v. DP (A Pseudonym) is currently on appeal to the High Court on this issue of vicarious liability, however AA has been diagnosed with a motor neurone disease and is terminally ill. Schmidt AJ determined that the Victorian Court of Appeal decision in Bird was correct and should be followed and she did not need to wait for the High Court’s decision.

While her Honour referred to Forrest J’s primary decision in DP v Bird [2021] VSC 850, this case goes significantly further in terms of finding that Father Pickin was provided with the role assigned by the Diocese to Father Pickin and how he was placed in that role vis-à-vis AA.  In DP v Bird, Father Coffey offended against the plaintiff at his house during a family event, and it was held that a pastoral role within the community (including visiting parishioners’ homes) was part of a priest’s role.  However in that case, Justice Forrest said ‘it is not as though this is a case of an event that occurred as a civil social function (such as at a golf club or a football club unconnected with the parish or pastoral activities)’.[9]  The High Court in CCIG Investments Pty Ltd v Schokman [2023] HCA 21 recently confirmed that the act must be connected to the employment, but distinguished it from cases where an employee is placed in a special position by virtue of their employment that it provides the very occasion for the impugned conduct.  Given the readiness of courts to find that extensive pastoral duties were assigned to priests, it seems likely that there are very few activities a priest could be undertaking that were outside of their duties and where a diocese would not be found vicariously liable for their tortious acts.

Direct liability – The claim in negligence

Significantly, Schmidt AJ found that the Diocese was directly liable for the assault suffered by AA, and that the criteria set out in s5B(1) of the Civil Liability Act 2002 (NSW) was met. That section provides that it must be the case that the risk was foreseeable, it was a significant risk, and that a reasonable person in the person’s position would have taken other precautions.

As with the comparison of vicarious liability in DP v Bird, Schmidt AJ considerably widened the scope for direct liability in terms of finding that:

• the risk of harm was that AA would be sexually abused by a priest such as Father Pickin (that is, not specifically Father Pickin, which is different to the risk of harm identified by Justice Forrest, or the pleaded risk of harm in TT v The Diocese of Saint Maron, Sydney & SS (No 3) [2024] NSWSC 943) [10]; and
• the Diocese ought to have known that Father Pickin posed a risk because there had been a prior report to a parish priest (although the priest did not provide that report to anyone more senior in the Diocese).[11] That is, the Diocese had constructive knowledge of the risk of Father Pickin sexually abusing a child.  In DP v Bird, Justice Forrest did not accept that the Diocese of Ballarat had constructive knowledge of offending despite Fr Coffey having assaulted other children previously, although he did note that the position would be different if Fr Coffey’s actions were known to other members of the Diocese.

Schmidt AJ found that the Diocese could have taken reasonable precautions or steps to protect children including:

• training priests about the risk of sexual abuse;
• not permitting priests to have children in the presbytery without other adults present; and/ or
• revealing the existence of those risks to the community.

It is not explained why a diocese was in a special position to take these steps in advance of community knowledge of sexual abuse proceeding as it has, or why a diocese was better placed to do so as opposed to, say, schools or police – neither of which trained their staff about the risks of sexual abuse in the 1960s.

Schmidt AJ found that ‘had the Diocese taken what were relatively simple steps … given the control which it exercised over parish priests and their residences and what it could have easily told parishioners about the risks which they could pose to children, Father Pickin could have been prevented from abusing AA as he was able to do.’[12] That finding is somewhat difficult to reconcile as a counterfactual, as no evidence was led from AA’s parents as to whether they would have let him attend the presbytery if they had been told by the Diocese of the risk of sexual abuse by its priests, nor was Father Pickin able to be questioned as to whether he would still have had children over to the presbytery if he had been told not to.

It is also difficult to reconcile this finding with Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843 at [757], in which Abadee AJA found that any negligence must be adjudged in respect of community standards at the time of the tort (which in that case, like this, was over half a century ago).

Significantly, in making her finding on the foreseeability of the risk, at [248] Schmidt AJ stated:

‘I am satisfied that the evidence does establish that even if the Diocese did not actually become aware that Father Pickin had abused Mr McClung, that he posed such a risk was one that the Diocese ought to have known about before AA was abused.’

Damages

Schmidt AJ noted that a claim of damages related to both vicarious and direct liability could not both be made. Schmidt AJ concluded that AA should be awarded $260,000 for general and aggravated damages under the common law, this being greater than the amount she would have awarded AA under the Civil Liability Act 2002 (NSW) of $245,480.[13]

Economic loss was to be assessed following submissions from the parties.

Exemplary damages were not awarded.