No Tortious Duty Owed by Defendant in Respect of 1960’s Report of Abuse of Another Child
In Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 (15 April 2025), the New South Wales Court of Appeal overturned a trial judge’s adjudication that a tortious duty of care was owed by a Catholic Diocese in respect of alleged sexual abuse by an assistant priest. Such abuse was alleged to have occurred when the plaintiff, in about 1968, was in attendance with the assistant priest, Father Pickin, at the presbytery of the local Catholic Church on a Friday night. While a lengthy decision dealing with other issues, the point given treatment here concerns the obligation of another priest in the parish to pass on to his superiors a prior complaint by another child of sexual conduct by Father Pickin.
The court wrote:
The knowledge from Mr McClung’s report (notice of contention, para 5)
[219] The plaintiff relied on the knowledge of Fr Pickin’s misconduct, which Mr McClung had reported at the time, to support the existence of a duty. This was the subject of paragraph 5 of the notice of contention, which was:
The Primary Judge erred in failing to find that, prior to the sexual abuse of the respondent by the late Father Ronald Pickin in 1969, the Diocese of Maitland-Newcastle knew or ought to have known that Father Pickin had sexually abused Mr Stephen McClung.
[220] Mr McClung was not cross-examined so as to invite the rejection of his account, and the primary judge regarded Mr McClung’s evidence as credible and reliable. Mr McClung said that Fr Pickin touched his genitals, outside his trousers, repeatedly, in 1965, when he was 16 or 17, when Fr Pickin was an assistant priest at St Columba’s Church in Adamstown.
[221] The primary judge accepted Mr McClung’s evidence, but did not rely upon it to establish that there was a foreseeable risk.
[222] Mr McClung said that in 1966:
… I went to speak to Father Doran at St Columba’s. Father Doran had been my science teacher at St Pius and was a practical, level-headed guy who I respected a lot.
I cannot remember the words that I said, but I told Father Doran that I was being sexually touched by Ron. I did not disclose the abuse by Hodgson because I felt I was burying that and leaving the abuse at St Pius behind me.
[223] The plaintiff submitted that Mr McClung’s disclosure to Fr Doran ought to have led to a finding of actual or, at least, constructive knowledge by the Diocese, because Fr Doran was a priest in the Diocese, and, according to Fr Dillon, “the responsibilities of priests towards their parishioners … were consistent with the normal and traditional practice of the Church and the expectations of the people of the Parish”.
[224] The plaintiff submitted that child sexual abuse was abhorrent, and any right-thinking person would find any disclosure of such conduct deeply disturbing, and requiring report and investigation. He asserted that “it cannot be said that a reasonable person would have taken a contrary view in 1969”.
[225] The plaintiff submitted that:
the evidence was sufficient to find that the notification to Fr Doran by Mr McClung put the Diocese on notice of the risk posed by Fr Pickin because Fr Doran was a representative of the Diocese (particularly in the eyes of a minor) who operated “in communion” with the Bishop, to be regarded by the Bishop as his “co-worker”. Fr Doran, as a priest, was also a person of sufficient responsibility and duty within the Diocese to establish notice for the Diocese.
[226] The appellant disagreed. The appellant submitted that what Mr McClung told Fr Doran was insufficient. It was not suggested that Fr Doran was a senior member of the clergy, “let alone a Trustee”, or that he in fact told anyone. The appellant’s submissions continued:
Further, it is worth noting that the Respondent’s expert Father Dillon observed that reservations and fears now held about children being alone with a non-family member adult were a rarity. And that the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980s was still virtually unknown (in the late 1960s).
It’s not to the point that Father Pickin was engaging in conduct that with the benefit of hindsight reasoning ought to have raised a red flag amongst the Trustees and senior members of the clergy. The question is whether the Trustees, as the individuals who are said to be liable, had relevant actual or constructive knowledge of Father Pickin’s alleged offending and there is no evidence that they did.
[227] (It was said or at least implied by both sides during the hearing that Mr McClung’s reporting of abuse during the confessional concerned Fr Pickin (including 27 February 2025 T 58.6 “reported the same thing to Father Doran and to another Father who had been giving confession”; see also T 25.23). That was an (inadvertent) error. Mr McClung said that he had been sexually abused by another priest, Fr Hodgson, in 1963, while a student at St Pius X High School, and had confessed that. That did not concern Fr Pickin, and in any event nothing was put to suggest that the priest who took Mr McClung’s confession was at liberty to pass on the information concerning that other priest to anyone.)
Consideration
[228] I shall pass over the lack of precision in the submissions as to the meaning of “actual” or “constructive” knowledge of “the Diocese”, which were asserted but not explained in submissions. This issue may be resolved on the basis that (a) the mere report to Fr Doran of itself did not amount to the imputation of any form of knowledge to “the Diocese”, and (b) it was not established that Fr Doran was under any obligation to report what Mr McClung told him.
[229] Knowledge on the part of Fr Doran is not knowledge of the appellant, whether in its own right or as the “proper defendant”. The Roman Catholic Church was and is hierarchical. The knowledge of each and every priest is not taken to be the knowledge of the institution as a whole.
[230] Fr Doran was a parish priest. The plaintiff’s case turned on establishing knowledge by the Bishop or senior members of the Diocese. No attempt was made by the plaintiff to establish who they were. Whoever they were, it was not suggested that Fr Doran was one of them. So far as the evidence suggests, he was not. The yearbook for 1969–1970 identifies seven Diocesan Consultors, the Diocesan Chancellor, and the members of a large number of committees (including the Vicars Forane, the Synodal Judges and Examiners, the Pro-Synodal Judges and Examiners, the Parish Priest Consultors, the members of the Tribunal for Matrimonial Causes, the Diocesan Commission for Sacred Liturgy, the Censor of Books, the Diocesan Director of Pontifical Mission Aid Societies, the Diocesan Directorate of Education, the Director of the Diocesan Priests’ Eucharistic League, the Director of Pastoral Course for Priests, the Director of Priestly Vocation Campaign, the Catholic Family Welfare Bureau and the Sick Clergy Relief Fund Trustees) and Fr Doran was a member of none of them.
[231] If Fr Doran were an employee, it would not follow that his knowledge would be imputed to his employer. The question of imputation of knowledge of a company’s officers and employees to the company depends in every case on context, and is not automatic. That fundamental proposition was emphasised by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 [1995] UKPC 5 and has been repeatedly applied in this jurisdiction: see for example Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 at [255] and Aidzan Pty Ltd (in liq) v K. & A. Laird (NSW) Pty Ltd (in liq) [2024] NSWCA 185 at [70]. In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, Basten JA said for this Court at [112] that:
It is not correct that the knowledge of every employee of the company, particularly as to the activities of independent contractors having different functions on the company’s premises, becomes the knowledge of the company. As Spigelman CJ noted in Nationwide News Pty Ltd v Naidu “[w]hether a principal is affected by an agent’s knowledge depends upon the context.” Further, “[w]hether the knowledge of a particular person should be imputed to a corporation depends on the scope of that person’s employment.” The Chief Justice continued, by contrasting the functions of specific officers who gave evidence with, “[a] person in a supervisory position … [who] has duties which encompass the receipt of the relevant knowledge and accordingly, could be said to have a duty to communicate and/or act upon it … [t]hat cannot be said to be the case for the other employee witnesses.” [footnotes omitted].
[232] Parish priests are not employees, and there is no reason why, in the absence of a duty to communicate a complaint, more senior priests within a diocese should have the parish priest’s knowledge attributed to them. No submission was made that the effect of s 6O(b) was that the knowledge of each and every priest in a diocese was to be imputed to the proper defendant. If so, that would place unincorporated associations in a different position than incorporated organisations, which would be contrary to s 33 of the Interpretation Act 1987 (NSW). It would also be unrealistic. It is to be borne in mind that the Diocese of Maitland took in the entirety of one of Australia’s largest cities, and more than 12,000 square miles, and there were in the order of 55 parishes and some 200 priests and nuns.
[233] The analysis of the position at law is not assisted by invoking metaphor. The Bishop may as a matter of canon law be in “communion” with a priest who learns of an allegation (just as he may be in “communion” with the assistant priest who committed the assault). That does not mean as a matter of the law of negligence that the knowledge of the priest (or the assistant priest) is imputed to the Bishop.
[234] Nor do I accept the assertion that in the late 1960s it was clear beyond any argument that a priest to whom a complaint was made of sexual abuse such as that told to him by Mr McClung, a first year undergraduate, concerning touching of his genitals the previous year when he was around 17, should have been passed on.
[235] This is a question of evidence. It turns on what a reasonable person in the position of Fr Doran in 1969 would have done. It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025. The plaintiff did not adduce any evidence that in response to the report of the abuse described by Mr McClung, Fr Doran or some other parish priest would take the matter further. Such evidence as there was pointed in the opposite direction. As the appellant pointed out, Fr Dillon confirmed that in the late 1960s, “[a]mong Catholic people and even among the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980’s was still virtually unknown”.
[236] A further matter bearing upon whether a reasonable person in the position of Fr Doran would have taken further steps was the attitude of Mr McClung. There was no reason to think that Mr McClung sought to take the matter further. To the contrary, Fr Pickin officiated at Mr McClung’s wedding in 1972, and his family continued to be involved in the church, including with Mr McClung reading Epistles on Sundays at Merewether where Fr Pickin was parish priest in the 1980s. Of course, Mr McClung’s subsequent conduct was not known in around 1966. Nonetheless, Mr McClung’s conduct after 1966 tends to confirm that when he reported the allegation to Fr Doran he did not expect any further steps to be taken.
[237] I am inclined to agree that what was said by Lord Neuberger MR in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 [2010] 1 WLR 1441 at [65] was equally applicable in Newcastle in 1969:
In the mid-1970s, an allegation by one boy that a priest had fondled his genitals should plainly not have been simply dismissed, but it would not have been treated nearly as seriously then as it would be now. As Lady Hale said in A v Hoare [2008] AC 844 at [54], “until the 1970s people were reluctant to believe that child sex abuse took place at all.” In my view, Father McTernan would have been acting properly, according to the standards of the time, if he had taken the allegation up with Father Clonan and, provided that he was given a convincing denial, he then took the matter no further either in the Archdiocese or through the police. The alleged abuse, though serious, was not of the grossest type, and such allegations are all too easy to make, and if they are passed on and investigated, they can cause considerable damage to the person against whom they were made and to the institution for which he works. By the standards of 1974, such considerations could reasonably have been accorded greater weight than they would today.
[238] It is to be borne in mind that the abuse of which Mr McClung complained was the repeated touching of his genitals, outside his trousers, when he was aged around 16 or 17. It was very wrong of Fr Pickin to do so. It was a crime, it was contrary to Fr Pickin’s vocation, and it was contrary to the relationship of trust which Mr McClung was entitled to expect from a priest. But the wrongness of what Mr McClung reported does not mean that the plaintiff is released from his obligation to establish by evidence all elements of his case.
[239] The issue is whether the plaintiff established that Fr Doran was under any obligation to report what he had been told. Let it be assumed that Fr Doran considered that Mr McClung’s account of what Fr Pickin had done a year before was credible. He should have raised it with Fr Pickin. He may have done so. Fr Pickin may have denied it. He may have said that he could recollect a time when he accidentally touched Mr McClung, but denied any intention to do so. He may have said that he had touched him deliberately, had been in a deal of internal turmoil about it, and said that it would not recur. It is most unlikely that Fr Pickin told Fr Doran that he took every opportunity to indecently assault children entrusted into his care, and would continue to do so. All this is speculation, serving to emphasise what is absent from the evidence relied on at trial.
[240] It may fairly be said that establishing that Fr Doran did something, or ought to have done something, some 60 years ago, is a heavy burden for the plaintiff in a case such as the present. But it is a consequence of the fact that the plaintiff has sued someone other than Fr Pickin in relation to a tort committed many decades ago by Fr Pickin, of which he made no complaint until 2023, leading to the result that he needs to establish that the Bishop or senior priests in the Diocese of Maitland had some level of knowledge, in 1969, that Fr Pickin posed a risk to children.
[241] In the absence of evidence of any knowledge or belief or suspicion by the Bishop or senior priests in the Diocese that Fr Pickin posed a risk to children, I do not see how the appellant, making every assumption in the plaintiff’s favour as to the effect of Part 1B of the Civil Liability Act and the parties’ agreement that it was the “proper defendant” for a claim against the Catholic Church insofar as it operated in the Diocese of Maitland in 1969, owed a duty of care to the plaintiff. …
…
(emphasis added)
A link to the full case is here.
