The recent New South Wales Court of Appeal’s decision in St Paul’s College Ltd v Allan[1] marks an early but significant demonstration of how AA v Trustees of the Roman Catholic Church for the Diocese of Maitland‑Newcastle[2] has reshaped the doctrinal and procedural landscape of institutional abuse litigation. What might once have been a conventional strike‑out application became, in light of the High Court’s decision in AA, a test case for, and an example of, the recalibration of pleading standards in negligence claims involving non‑delegable duties.
The Strike‑Out Application and the “Venial Sins” of Pleadings
The respondent, a former boarder at St Paul’s School (“the School”), alleged that he was sexually abused by the boarding house master in or about 2001. His Amended Statement of Claim (“ASOC”) pleaded that the school owed him a non‑delegable duty of care to take reasonable precautions to prevent exposure to sexual abuse, that the abuse occurred while he was under the School’s care and supervision, and that the boarding master’s role provided the occasion for the abuse. The School sought to strike out the pleading on the basis that it failed to articulate breach with the specificity traditionally required in negligence claims – in that it did not identify the precautions a reasonable institution would have taken. It also challenged the adequacy of the vicarious liability particulars, saying that the respondent did not set out the facts about the boarding master’s role, functions, conduct and scope of authority that would justify the allegation that the applicant provided the occasion for the abuse to occur.
The Court of Appeal was frank in its assessment of the respondent’s pleadings: the ASOC was “poorly” drafted, internally inconsistent, and prone to conclusory assertions. These were, as the Court described them, “venial sins” of pleading.[3]
In the pre‑AA era, they would likely have been mortal ones. Kirk JA acknowledged that “but for AA, I would have upheld the appeal in substantial part” and would have required the respondent to amend his pleadings in a not insignificant way. Under the pre-AA position, a plaintiff was required to plead the material facts constituting breach, including the specific acts or omissions that a reasonable institution would have undertaken to avoid the risk of harm; the ASOC did not do so sufficiently.
The “Fundamental Shift” in Non‑Delegable Duties
The High Court’s reformulation of non‑delegable duties in AA, which overturned New South Wales v Lepore[4], was a decisive influence on the Court of Appeal. The High Court held that where an institution owes a non‑delegable duty and entrusts its performance to another, intentional criminal conduct by that delegate can itself constitute breach. Liability becomes, as the Court of Appeal put it, effectively strict. The focus is no longer on the implementation or adequacy of systems or precautions, but on the existence and breach of the non-delegable duty, the relationship between the institution and the abuser, and the fact of the abuse and the compensable harm it caused.
This doctrinal shift necessarily alters the procedural expectations. If breach no longer depends on identifying hypothetical precautions that a defendant ought to have implemented, then pleadings no longer need to articulate them. The Court held that the ASOC, despite its drafting sins, adequately pleaded the existence of the non‑delegable duty, the fact of abuse by a delegated person and breach of the duty of care, and resulting compensable harm. That, the Court’s opinion, was sufficient. The pleading and particulars alleging vicarious liability, while not exemplary, were also adequate to put the applicant on notice of the case it had to meet.
Consequences for Pleading Standards
The decision confirms that AA has procedural, as well as substantive, consequences. Plaintiffs alleging institutional abuse need not plead detailed acts or omissions constituting breach. It is enough to plead that they were within the class of persons to whom the non-delegable duty was owed, that the abuse was committed by someone performing the delegated role and/or function, and that harm resulted. Pleadings (and by consequence, potential claims) that would once have been struck out for want of detailed material facts, or specific particularisation of acts or omissions required of a duty to take reasonable care,[5] may now survive because the material facts required have changed.
The Court described the pleading requirements in such cases as now being “limited”.[6] This is not a mere procedural relaxation nor merely technical exercise. It reflects a substantive, and by consequence procedural, reorientation of the law. It reflects a broader shift in the acknowledgement and allocation of responsibility for the care and protection of vulnerable persons. Institutions that assume responsibility for children or other vulnerable groups now bear a clear and correspondingly expanded liability for the intentional wrongdoing by those entrusted with their care and where such acts cause real harm.
A New Phase in Institutional Liability
St Paul’s College Ltd v Allan confirms that the law of non‑delegable duties has entered a new phase – one in which institutions bear significant and expanded responsibility for the conduct of those to whom they entrust the care of vulnerable persons. The decision illustrates how AA reshapes both the substance and the procedural form of negligence claims involving intentional criminal acts by institutional delegates.
The Court’s reasoning is an exhibition of the doctrinal shift following AA and an example that the consequences of that judgement are neither theoretical, remote nor abstract. It has and will continue to reshape claim articulation and strategy, the scope of institutional exposure, and the procedural obligations and expectations placed on plaintiffs. In this new legal landscape, the protective purpose of non‑delegable duties is given full effect, and institutions must navigate claims in which liability for abuse committed by their delegates is, effectively, strict.
The decision in AA and now in St Paul’s College Ltd v Allan ultimately illustrates the material enhancement of the law for plaintiffs bringing claims in relation to the abuse they have suffered. It relieves them of the onerous, and at times seemingly impossible task, of articulating detailed and specific acts or omissions as to breach of duty, oftentimes long after the events the subject of the claim have occurred. By allowing claims, in the form of a plaintiff’s pleadings, to proceed on the central core elements of duty, delegation and damage, the Court ensure that survivors are not denied judicial remedy due to a failure to articulate with particularity how the institution failed to provide reasonable care to avoid reasonably foreseeable risks of harm, strengthening their ability to obtain a just remedy for the harm that they have suffered.
[1] https://www.schultzlaw.com.au/case-summaries/st-pauls-college-ltd-v-allan-2026-nswca-22/
[2] https://www.schultzlaw.com.au/case-summaries/aa-v-the-trustees-of-the-roman-catholic-church-for-the-diocese-of-maitland-newcastle-2026-hca-2/ and https://www.schultzlaw.com.au/further-particulars-episode-1-high-court-overturns-lepore-in-landmark-decision-on-nondelegable-duties/
[3] Paragraph 22.
[4] New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.
[5] Kirk AJA made note, however, of the relevant principles (the commandments, if you will) of pleadings generally, which I will note here for completeness. His Honour observed that the primary purpose of pleadings is to facilitate the identification of the issues in dispute between the parties and the case to be met. They must state the material facts (not the evidence), be as brief as the nature of the case allows, and include particulars sufficient to avoid surprise, with “trial by ambush” being anathema in civil litigation. A party must have a proper basis for filing a claim and allegations must be made on reasonable grounds that the factual material provides a proper basis for each allegation. Kirk AJA noted that, generally, should a putative not know sufficient facts or particulars to have a proper basis for filing, and these are within the knowledge only of the potential defendant, preliminary discovery is able to be sought under the Rules.
[6] At paragraph 94.
