St Paul’s College Ltd v Allan

1. [1]

   PAYNE JA: I agree with Kirk JA.

2. [2]

   KIRK JA: The respondent was a boarder at St Paul’s School in Walla Walla, New South Wales, run by the applicant. He claims that he was sexually abused by the boarding house master of the school in or around 2001. The respondent has brought proceedings in the District Court seeking damages in negligence from the applicant. No defence has yet been filed.

3. [3]

   The respondent filed his original statement of claim (SOC) in May 2024. Following correspondence between the parties’ lawyers the applicant filed a notice of motion seeking that the SOC be struck out or, alternatively, that the respondent be ordered to give further and better particulars in relation to certain matters. The respondent proposed a new SOC to the applicant but that was criticised by the applicant. The respondent then drafted a further iteration, being the Amended Statement of Claim (ASOC), and filed its own notice of motion seeking leave to file the document.

4. [4]

   The notices of motion were heard by the primary judge, Strathdee DCJ. Her Honour dismissed the applicant’s motion and allowed the respondent’s motion with respect to the ASOC. The ASOC was filed accordingly on 1 July 2025.

5. [5]

   The applicant now seeks leave to appeal from the decision permitting the ASOC to be filed (the applicant did not pursue its challenge to the SOC). This appeal was heard in December 2025, prior to the High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2. At the respondent’s suggestion, this Court awaited the decision of the High Court in AA before handing down its judgment. The parties were given the chance to provide further written submissions after that decision was delivered. Both parties took up that opportunity.

6. [6]

   Leave to appeal is required because the challenged order is interlocutory: District Court Act 1973 (NSW), s 127(2)(a). The respondent opposed the grant of such leave. The applicant referred to the very large number of historical child sexual abuse claims in both the Supreme Court and the District Court, and argued that it “is a matter of general public importance that such cases be properly pleaded so that defendants and the Court know the case which has to be met”. There is force in that argument. Leave should be granted on that basis and because, as shall be seen, the applicant’s complaint raised issues of principle and was reasonably arguable.

7. [7]

   The applicant’s primary argument was that the ASOC does not plead material facts which sufficiently identify the case which the applicant has to meet in respect of the precautions which the respondent alleges it should have taken. In other words, its core complaint relates to the high level manner in which breach of duty has been pleaded.

8. [8]

   At the time the applicant brought and argued this application, the law of negligence was not understood to make schools strictly liable for sexual abuse inflicted on students by staff members. When alleging that a school was itself negligent as regards such sexual abuse it had been necessary to identify acts or omissions of the school which involved a failure to provide reasonable care to avoid the relevant risk of harm. It was not sufficient simply to plead in a conclusory way that if some unidentified proper system had been in place then the abuse would not have occurred. That problem afflicted the respondent’s ASOC. But for AA, I would have upheld the appeal in substantial part (although I would have rejected the applicant’s attack on the pleading of vicarious liability).

9. [9]

   However, AA represents a fundamental shift in the liability of defendants who owe a non-delegable duty of care and whose delegates inflict harm on a claimant in circumstances within the scope of the duty. Liability in such circumstances is now, in effect, strict. In this case, whilst the ASOC is no model pleading, it articulates enough to survive the applicant’s strike-out arguments. Thus the appeal must be dismissed.

10. [10]

    These reasons are structured as follows:

    1. (1)

       the background to the matter (at [11]-[26]);

    2. (2)

       legal principles relating to pleading ordinary claims in negligence (at [27]-[53]);

    3. (3)

       the inadequacy of the pleading of an ordinary duty of care (at [54]-[76]);

    4. (4)

       the High Court’s decision in AA and its significance for this case (at [77]-[92]);

    5. (5)

       conclusion and orders (at [93]-[95]).

Background

1. [11]

   The power formally being exercised by the Court below was that in s 64(1) of the Civil Procedure Act 2005 (NSW) (CPA) enabling the court to grant leave to a party to amend a document. The applicant asserted that the ASOC disclosed no reasonable cause of action and had a tendency to cause prejudice or embarrassment, such that if filed it would be liable to be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Thus, it argued, leave to file the amended document should be refused. Its arguments were and are about the adequacy of the pleading; it was not seeking summary judgment. Although the application relevantly made below (to amend) was strictly that of the respondent, given the nature of the argument the persuasive burden as to why leave to amend should have been refused fell on the applicant.

2. [12]

   The power in s 64(1) is expressed in discretionary terms: “the court may order”. Similarly, r 14.28.1 provides that the court “may … order that the whole or any part of a pleading be struck out”. Presumptively, a court’s decision under those powers would be subject to the restrained form of appellate review articulated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. That is the view which has hitherto been taken in this Court: see eg at Benton v QBE Workers Compensation (NSW) Ltd [2015] NSWCA 101 at [54]; Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 at [22]; Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; (2016) 316 FLR 318 at [29]; note the somewhat more detailed discussion in Resolution Life Australasia Ltd v AMP Ltd [2025] NSWCA 21 at [43]-[46]. However, senior counsel for the applicant made an oral submission that “the question is whether or not the pleading is adequate, and in our submission it either is or it isn’t”, such that House v The King principles did not apply. That argument was not foreshadowed in writing. It raises significant issues, of some complexity, about the standard of review to be applied. They were not explored by either party. In this case the standard of review makes no difference and it is not necessary to resolve the point. That is so because but for AA the decision of the primary judge would have manifest House v The King error, and in light of AA the primary judge’s decision survives regardless of which standard applies.

3. [13]

   In paragraphs 1-4 of the ASOC the respondent identifies the applicant; says that an identified man (the boarding master) was employed by the defendant as a boarding house master at St Paul’s College where the respondent was a boarding student; and alleges that in or around 2001 the respondent, then aged 15, was attacked and sexually abused by him. The particulars to the paragraph provide some details of the abuse, including that it occurred whilst the respondent was walking back to the boarding house after football training. By implication, it is alleged that the abuse occurred on school grounds.

4. [14]

   Paragraph 5 concerns duty of care. It alleges that at all material times the respondent was under the care, control and supervision of the applicant, which thus owed to him “a non-delegable duty of care to take reasonable precautions to prevent him from being exposed to sexual abuse”. The duty is said to be non-delegable by reason of the respondent’s special vulnerability caused by his age and being under the complete care and control of the applicant through its staff.

5. [15]

   Underneath paragraph 5 are “Particulars of Duty of Care”, enumerated as (a)-(p). These are seemingly meant to articulate what the duty required the respondent to do. For example, (a) is: “To ensure those charged with the care, supervision and treatment of the plaintiff were fit and proper persons to undertake and oversee such care, supervision and treatment of children”. As shall be explained, these particulars were unnecessary even prior to AA. In substance they go to breach, not to the existence or scope of the duty of care. Consistently with that view, paragraph 5A states that a reasonable person in the position of the defendant would have taken the precautions particularised in paragraph 5.

6. [16]

   Paragraph 6 deals with reasonable foreseeability, alleging that it was reasonably foreseeable that, having established personal trust and authority over the respondent, the boarding master might misuse the relationship with the respondent including through sexual abuse, in circumstances where the boarding master had unsupervised access to the respondent within the school. Issues of reasonable foreseeability can go to establishing that a duty of care exists, and can also go to the breach question of whether the person was negligent for failing to take precautions against a risk of harm (pursuant to s 5B of the Civil Liability Act 2002 (NSW) (CLA)). Here, given that the existence of the duty is well-established (see below), presumably this paragraph in substance is meant to go to breach.

7. [17]

   Paragraph 7 then reverts to dealing with identification of the duty of care by taking the necessary step of identifying the risk of harm to which the duty related. That risk was said to be that young, vulnerable students could and would be sexually abused by adult staff members of the applicant who held positions of authority and power over those students. Oddly, the risk of harm had earlier been identified in slightly different terms at paragraph 5 as “to prevent [the respondent] from being exposed to sexual abuse”.

8. [18]

   Paragraph 8 then says that “[i]n the circumstances, the defendant breached their duty of care to the plaintiff”. The particulars to this paragraph are extracted in full below at [57]. To a substantial extent those particulars are the obverse of the particulars supplied to paragraph 5. For example, particular (a) is: “The defendant failed to ensure those charged with the care, supervision and treatment of the plaintiff were fit and proper persons to undertake and oversee such care, supervision and treatment of children”. That link reinforces that the particulars to paragraph 5 really relate to breach.

9. [19]

   Causation is then addressed in paragraphs 9-10, which respectively allege that the breaches of duty of care pleaded at paragraph 8 were a necessary condition of the harm caused, and that the respondent would not have been abused if the applicant had in place the measures particularised in paragraph 5. No detail is given of any particular causal pathway.

10. [20]

    Paragraph 11, said to be further or in the alternative, alleges that the applicant was vicariously liable for the abuse of the boarding master on the basis that the role, function, conduct and scope of the authority it afforded him was such that he was provided with the occasion for the abuse.

11. [21]

    Paragraphs 12-13 concern damage.

12. [22]

    The pleading of the ASOC was poorly done. It jumped around between issues of duty and breach. It identified the relevant risk of harm in two different places in somewhat different terms. It included in particulars issues which arguably should have been pleaded. However, these venial sins of drafting were not the focus of the applicant’s complaint.

13. [23]

    The primary judge noted relevant aspects of the UCPR and said:

14. [24]

    Her Honour quoted (at [15]) from a statement by Garling J in PWJ1 v State of New South Wales [2020] NSWSC 1235 at [97], which her Honour described (at [28]) as setting out a “helpful … list of guidelines” for pleadings in cases such as the present matter. She opined that “[i]n many of the abuse related matters, the risk of harm, precautions to be taken and breaches will be very similar as the issues tend to be the same” (at [17]).

15. [25]

    Her Honour expressed her conclusion shortly:

16. [26]

    The order relevantly made by the primary judge was: “(4) I make an order in accordance with par 1 of the plaintiff’s Notice of Motion filed 7 March 2025”. The form of this order is unsatisfactory. It is one thing to say as much in giving reasons for judgment. It is another for that to be the form of order. Orders should be direct, clear and precise. The order should have contained operative words rather than merely cross-referring to a notice of motion.

Legal principles relating to pleading ordinary claims in negligence

1. [27]

   A tortious claim in negligence involves establishing: that the defendant owed the plaintiff a duty of care; that the duty was breached by the defendant; that the breach caused the plaintiff compensable harm; and a claim for damages. These elements are not complex yet they are commonly not pleaded well.

2. [28]

   Prior to the High Court’s decision in AA, the arguments in this case focused on the adequacy of the respondent’s pleading of its duty of care on the basis that – leaving aside vicarious liability – it was necessary for the respondent to show that the applicant had, by its acts or omissions, failed to take reasonable care to avoid the identified risk of harm. That was so because the High Court’s majority decision in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 had held that the liability of a school authority under its non-delegable duty of care did not extend to intentional criminal conduct against a pupil by a teacher. Thus although there was no dispute that the duty owed by the respondent was non-delegable, that characteristic was not significant for the purposes of argument in the circumstances of this case. The dispute revolved around whether breach had adequately been pleaded, in effect treating the duty as an ordinary duty of care in the sense of focusing on the acts and omissions of the applicant itself.

3. [29]

   As addressed below, a majority of the High Court in AA has now overturned Lepore. Nevertheless, given that the issues were fully argued in this Court, and given that the resolution of those arguments may still have significance for cases not involving non-delegable duties, it is appropriate to discuss the nature of ordinary duties of care, then breach of such duties, along with the related issue of vicarious liability. Before addressing those matters, it is necessary to reiterate some general pleading principles.

4. [30]

   Pleadings serve to identify the issues in dispute between the parties: note Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; [1990] HCA 11; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; [2010] FCAFC 133 at [49]-[50]. In so doing they achieve the following ends:

   1. (1)

      They put the other party on notice of the case to be met, thereby facilitating procedural fairness.

   2. (2)

      By delineating the scope of what is in dispute they enable the resolution of interlocutory debates, including as to discovery, other forms of evidence-gathering and admissibility.

   3. (3)

      They identify the issues requiring determination by the court.

   4. (4)

      Relatedly, they may delineate the extent of what the court has determined if a question subsequently arises about res judicata or issue estoppel. The latter point may have added significance in an age where individual and representative proceedings may overlap: note Timbercorp Finance Pty Ltd (In Liq) v Collins (2016) 259 CLR 212; [2016] HCA 44.

   5. (5)

      The nature of what is pleaded will also be significant in considering any application for a permanent stay of proceedings: see eg Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 at [443]-[447]; Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [61] and [73].

5. [31]

   The pleadings are to contain a summary of the material facts, not the evidence by which those facts are to be proved: UCPR, r 14.7. Material facts should be pleaded, not merely identified in the particulars. Doing so can also be to the plaintiff’s strategic advantage. A defendant need not plead to particulars: Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75. Including all material facts in the pleadings requires the defendant to engage directly with the account presented by the plaintiff, which may limit the points in dispute. A statement of claim operates as a form of notice to admit facts.

6. [32]

   The pleadings are to be as brief as the nature of the case allows: UCPR, r 14.8. This requirement does not relieve the pleader of the obligation to provide clear notice of the case being made. The pleadings are to include any matter that, if not pleaded specifically, may take the defendant by surprise: UCPR, r 14.14(1). The notion of “trial by ambush” is anathema: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [28]-[32], [40]-[46].

7. [33]

   The pleadings are to give all particulars of the claim necessary to enable the other party to identify the case that it must meet: UCPR, r 15.1. Particulars limit the generality of the pleaded material facts by defining the issues to be tried and enabling the parties to know what evidence it will be necessary to have available: Bailey v Commissioner of Taxation (Cth) (1977) 136 CLR 214 at 219, 227-229; [1977] HCA 11. A pleading alleging negligence must give particulars which state the facts and circumstances on which the party pleading relies as constituting the negligent act or omission, and if multiple negligent acts or omissions are alleged, those facts and circumstances must be stated separately: UCPR, r 15.5(1).

8. [34]

   A pleading may be embarrassing if the pleading simply pleads a legal conclusion drawn from unstated facts or expressed at too high a level of generality: Resolution Life Australasia Limited v AMP Limited [2025] NSWCA 21 at [56] and [59]-[61].

9. [35]

   A prospective plaintiff is required to have a reasonable basis for a claim before they file a proceeding in a court asserting the claim. The plaintiff is required to plead a specific set of allegations to define the bounds within which the court will then order discovery, permit subpoenas to be issued and the like. The filing of a statement of claim should not be regarded as merely the first step in discovering whether a cause of action exists, where the real complaint will be identified after subpoenas have issued or discovery has taken place or such like. That is to put the cart before the horse. The point has long been recognised: see eg Zierenberg and Wife v Labouchere [1893] 2 QB 183; Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148 at 151-152. If a plaintiff “does not, after advice, know whether he has got a cause of action or not and his pleader cannot discern one, the pleader is not for that reason entitled to plead badly”: Pinson at 75-76.

10. [36]

    The foundational requirement to have a proper basis for making a claim is manifest in a number of legal principles:

    1. (1)

       As noted, one of the purposes of pleadings is to identify what issues are in dispute such that the proper scope of discovery, and other evidence-gathering mechanisms, can be determined. Identification of the issues delineates evidence-gathering, not the other way around.

    2. (2)

       Discovery by way of fishing is not permitted. As Brennan J explained in WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 181-182:

    3. (3)

       The allegations made in a filed pleading are covered by privilege. That privilege must not be abused. Solicitors and barristers must not allege any matter of fact in any court document unless they believe on reasonable grounds that the factual material already available provides a proper basis to do so: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.3; Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 64.

    4. (4)

       A law practice must not provide legal services on a claim or defence of a claim for damages unless the relevant practitioner reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success, where a fact is provable only if the practitioner reasonably believes that the material then available to them provides a proper basis for alleging that fact: Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 2. To act contrary to this prohibition is capable of being unsatisfactory professional conduct or professional misconduct: ibid, cl 4(1). A law practice cannot file court documentation on a claim or defence of a claim for damages unless a relevant practitioner certifies the point: ibid, cl 4(2).

    5. (5)

       Pleadings in the Supreme and District Courts must be verified by affidavit: UCPR, r 14.23. The client must testify that they believe that the allegations of fact in the pleading are true.

11. [37]

    It is in this context that, for example, the determination of any application for a permanent stay “proceeds on the basis that the plaintiff is in a position to produce evidence to support the case pleaded and particularised”: Willmot at [32]. That premise reflects what is implicit in the very fact of the proceedings having been filed.

12. [38]

    In some cases a claimant may only be able to give full particulars of aspects of its claim after discovery has occurred: see eg Cyril Leonard & Co v Simo Securities Trust Ltd [1971] 3 All ER 1313; [1972] 1 WLR 80. But the acceptance of that possibility does not undermine the requirement to have a proper basis for filing a claim asserting a cause of action. If a putative claimant does not know sufficient facts to have a proper basis for filing a claim because such facts are known only to the prospective defendant then they may be able to seek preliminary discovery pursuant to r 5.3 of the UCPR. That is the very reason that the rule exists.

13. [39]

    A common law duty of care (as modified by the CLA) requires that reasonable care be taken to avoid an identified risk of harm to the plaintiff, either individually or as a member of a class: eg Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [25]; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [43]; Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 at [10]-[13].

14. [40]

    The notion of the “scope” of a duty of care can involve delineating what types of risks of harm are subject to the duty of care, and who — that is, what person or class of person — is the object of the duty, where issues of temporal and physical proximity may arise in that regard: Collins at [10]–[12] and [16]–[30]; State of New South Wales v T2 (by his tutor T1) [2025] NSWCA 165 at [59].

15. [41]

    Many duties of care are well-established. For example, cases that involve “the duty of a motorist towards other users of the road … ordinarily involve no real controversy over the scope and content of the duty of care”: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [22] (footnote omitted). The duty of a school to its students is another example. As this Court recently said in T2, “the duty of care owed by a school to its students can generally be expressed as a duty to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm” (at [65]). That duty applies when and where the school has some responsibility for the student (ibid at [67]). It is non-delegable: Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40.

16. [42]

    In cases involving an established duty, to plead the existence and scope of the duty it commonly will be sufficient for a plaintiff simply to identify facts showing that each of the plaintiff and defendant fell within the established category involving a duty to take reasonable care to avoid an identified risk of harm (eg that each of the defendant and plaintiff was driving a motor vehicle on a public road and the plaintiff owed a duty to avoid injuring other motorists; that the plaintiff was a student attending a school run by the defendant when injury occurred, and the school owed the duty just identified). There may still be unusual cases where particular questions may arise about the scope of an established duty of care. Collins was an example in the context of the duty of drivers. T2 was, at least on one view, such a case with respect to schools. In those cases there may be a need to plead more detailed facts said to establish the duty of care. The same is true where the duty of care alleged is a novel one, in which case the pleader should identify the salient features said to give rise to the duty: note eg Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [100]-[104].

17. [43]

    It seems unlikely that most claims of historic child sexual abuse occurring on school premises, as alleged in this case, would raise questions as to the existence or scope of the duty of the school authority, as opposed to questions going to the breach issue of what reasonable care required.

18. [44]

    Identifying the risk or risks of harm against which the defendant was required to take reasonable care is an important aspect of pleading a duty of care. The necessity of doing so, in particular since the amendments made to the CLA in 2002, has repeatedly been emphasised by this Court: see eg Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [49]-[50], and the authority there cited. A person owing a duty of care to another is not necessarily required to take reasonable care to avoid all risks of harm to that other person: note Collins at [10]-[13]. Inevitably, the plaintiff’s focus will be articulating a risk of harm which represents or encompasses the harm they claim to have suffered. The risk of harm against which the defendant was required to take reasonable care will commonly be broader than the specific harm of which the plaintiff complains. Appropriate characterisation of the risk of harm was discussed in Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 at [106]-[116]. The risk of harm in cases such as this one could sufficiently be identified as the risk of an employed staff member physically or sexually abusing students attending the school.

19. [45]

    Duty and breach are distinct issues. Sometimes issues of duty and breach will closely overlap, as was the case in T2 (see at [78]-[79]). That is unusual. As was said in Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; [2022] HCA 37 at [20] (citation omitted):

20. [46]

    A defendant breaches a duty of care by failing to take reasonable care (ie not taking reasonable precautions) against the risk of harm in question eventuating, where the identified risk of harm encompasses the risk that in fact came home. An allegation that a duty has been breached is fact-specific: the defendant did act X or omitted to do act Y, where that act or omission involved a failure to take reasonable care in all the circumstances. That issue involves consideration of the matters addressed in ss 5B and 5C of the CLA: note Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [12]-[13]. Leaving aside cases of a very simple kind involving a well-trodden route to liability (such as an ordinary car accident), the matters identified in at least s 5B(1) – which involve factual allegations – should generally be addressed in the pleading of breach of an ordinary duty of care. A plaintiff should plead that the risk of harm in question was foreseen or reasonably foreseeable, it was not insignificant, and in the circumstances a reasonable person in the defendant’s position would have taken those precautions in light of the matters identified in s 5B(2). So doing, where the defendant must respond, serves to flush out what is really in dispute.

21. [47]

    As noted above, in the case at hand the plaintiff articulated a long list of “particulars of duty of care”, enumerating positive steps the defendant was required to take as aspects of its duty. He then articulated a converse long list of particulars of breach of duty. This repetitive form of pleading is commonplace. And it is usually unnecessary. The duty was one to take reasonable care. This case was not said to raise some unusual feature which qualified the standard of care in some way. Of course, what reasonable care required is to be assessed prospectively. Nevertheless, it is not generally necessary to enumerate long lists of acts or omissions which it is said that the duty required as incidents of taking reasonable care, such that the issue is addressed twice in the pleading – once when addressing the duty and again, expressed conversely, when addressing breach. It is appropriate and sufficient to articulate such details in articulating breach, that is, how the defendant failed to take reasonable care to avoid the identified risk of harm in the particular case.

22. [48]

    As was explained in T2:

23. [49]

    The generality of the acts or omissions in question will vary depending on the circumstances. In a motor vehicle accident case, for example, they will tend to be specific: the driver failed to keep a proper lookout, or failed to adjust their driving to the road and weather conditions, or drove through a red light, etc. For other cases, the focus may be a more general one on the failure to implement a system to avoid the identified harm, such as maintaining a safe system of work. In all cases involving breach of an ordinary duty the ultimate question is whether, taking account of the matters in ss 5B and 5C, the defendant failed to take reasonable care against the identified risk of harm in the circumstances at hand.

24. [50]

    In this case the respondent has alleged that the school is liable both directly and on the basis of vicarious liability, where that latter form of liability is said to arise by virtue of the boarding master being an employee of the applicant. It is well-established that “[a]n employer is vicariously liable for a tort committed by an employee in the course of his or her employment”: Lepore at [40].

25. [51]

    Vicarious liability is “based on the attribution of the liability of another”, it being “a form of strict liability, whereby a defendant is held liable for the wrongs of another, despite the defendant being free of fault”: Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 at [44]. Thus if the claim is founded on negligence by the employee it is necessary to plead that the employee owed a duty of care to the plaintiff and that this duty was breached. If the tortious liability of the employee is said to be of some other nature – eg battery – then that liability should be pleaded.

26. [52]

    It is then necessary to plead that the defendant was vicariously liable for that breach of duty or other tort. As regards employees that inquiry involves two questions: “whether the alleged tortfeasor was an employee of the defendant, and then the separate question whether the relevant act or omission of the alleged employee took place in the course or scope of that employment” (Bird at [46], citations omitted). Where what occurred was criminal conduct, such as sexual abuse, the latter question involves consideration of whether the employee provided the tortfeasor with both the opportunity and occasion for the abuse. The approach was explained in Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37:

27. [53]

    A plaintiff alleging liability on this basis should plead the material facts going to establish that the defendant had provided the opportunity and occasion for the wrongful act.

The inadequacy of the respondent’s pleading of an ordinary duty of care

1. [54]

   The primary focus of the applicant’s attack on the ASOC related to the pleading of breach of duty. Its secondary attack was on the pleading of vicarious liability. Those two issues will be addressed in turn. Some criticisms were also made of the pleading of causation. The applicant said that the pleaded facts do not identify “how a particular precaution directed to all teachers would have prevented the abuse of the respondent on the one occasion pleaded by the boarding master”. In substance this complaint was interlinked with the concern about the generic manner in which breach had been pleaded and can be addressed in that context.

2. [55]

   Some criticisms were also made of the pleading of the duty. To a significant extent that criticism came back to the inadequate articulation of breach and vicarious liability. Insofar as the criticisms went beyond that, they are not persuasive. The duty of care invoked by the respondent was of a well-established kind, including as to the fact that it was non-delegable (see above at [41]). The respondent has identified the risk of harm albeit, admittedly, in two places in slightly different terms. No other issue arises as to the scope of the duty in terms of its geographic or temporal reach, or the extent of the class to whom the duty was owed, given that the alleged abuse occurred on school grounds and whilst the respondent was under the applicant’s care as a student. There was no particular novelty about the duty alleged which required further articulation of material facts in support of its existence or scope.

3. [56]

   The nub of the applicant’s primary argument was that the respondent has failed to plead and particularise in sufficient detail the respects in which it says the applicant failed to take reasonable care to prevent the respondent from being exposed to sexual abuse. As senior counsel for the applicant put it:

4. [57]

   As noted, paragraph 8 of the ASOC addresses breach. Particulars (j)-(q) were added as part of the amendments made to the SOC. However, the applicant’s attack was on the whole set of particulars. The paragraph states:

5. [58]

   The particulars of negligence can be divided into three broad categories. The first involves various ways in which it is alleged that the applicant had inadequate systems in place to prevent and detect abuse of students by staff members. Particulars (a), (b), (d), (e), (g)-(j) and (q) fall into this category.

6. [59]

   The applicant’s justified complaint about this category is exemplified by particular (i). The allegation that the applicant failed to take appropriate care for the respondent’s safety is conclusory. It is a reassertion that the applicant failed to take reasonable care to avoid the risk of harm but does nothing to identify the acts or omissions of the applicant which constituted that failure. It does not articulate the case that the applicant has to meet. A pleading which simply rearticulates the legal norm or which is pleaded at too high a level of generality is embarrassing (see above at [34]).

7. [60]

   The same problem arises with the other particulars in this category. In each case the particular refers to a generic outcome: a failure to ensure that a state of affairs existed; a failure to implement a system, protocol, method or set of safeguards that would produce a certain result; a failure properly to supervise the boarding master; and so on. None of those particulars specify the acts or omissions – the precautions – which the reasonable person would have taken to comply with the duty of care but which the applicant failed to take: cf CLA, s 5B(1)(c). A defendant confronted with such particulars would reasonably ask: ensure how; implement what sort of system; supervise in what “proper” manner; etc. These particulars do not inform the applicant of the case it is expected to meet. As the applicant submitted, without knowing what precautions it is said should have been taken, a defendant cannot “address the various criteria in ss 5B and 5C of the Civil Liability Act, including how onerous it is, how much it would cost, how taking similar precautions would impact on the particular precaution and so on”. Nor does such generic pleading inform the court of the real issues in dispute. Clear identification of the relevant acts or omissions also feeds into the causal question of whether taking that step would have avoided the claimed harm.

8. [61]

   The second category of particulars alleges that the applicant took inadequate steps to educate students and their families of the risk of child sexual abuse occurring and that it should be reported. Particulars (f), (k), (l) and (n) fall into this category. These particulars are, at least, somewhat more specific than the first category in identifying particular steps that the applicant could and should have taken. The problem here is one of causation. The ASOC does not make any attempt to articulate how educating students and their families in general, or the respondent and his family in particular, would have prevented the abuse occurring. The abuse alleged here was a one-off brutal rape of the respondent by the boarding master. No allegation is made that the respondent or any other student was abused by the boarding master on any other occasion. In that context, it is far from evident how better education of the school community or of the respondent and his family about the evil of child sexual abuse, or the encouragement of reporting of such abuse, would have prevented this event occurring. At the least, the causal pathway requires further articulation in this regard.

9. [62]

   The third category of particulars involves some articulation of specific acts or omissions. Particulars (c), (m), (o) and (p) fall within this group. Each of these allegations might constitute steps towards articulating the acts or omissions of the applicant which constituted a failure to take reasonable care, but neither individually nor in context do they suffice to delineate such a case:

   1. (1)

      Particular (c) alleges that the applicant caused and permitted the boarding master “to have unfettered access” to the respondent on school grounds. The allegation is somewhat ambiguous but seems to suggest that the boarding master’s interaction with the respondent should have been supervised or limited in some way. But neither this allegation nor the context indicates why that should have been so, or what the supervision or limitation should have been. As senior counsel for the applicant put it, “[p]leading unfettered access is identifying a problem; it’s not identifying a precaution”. No allegation is made that any prior complaints or suspicions had or should have arisen about the conduct of the boarding master. Nothing is alleged to distinguish him from any other staff member, or at least any staff member who had responsibility for looking after boarding students.

   2. (2)

      Particular (m) says that the applicant failed to proclaim a “zero tolerance” stance against child sexual abuse by any staff at the school. This allegation does at least identify a specific step the school could and should have taken. However, much the same causal problem arises here as with respect to the second category. Similar points may be made with respect to particular (o), which says the applicant failed to direct all teachers at the school to maintain an awareness of, and avoid the risk factors of, child abuse.

   3. (3)

      Particular (p) says the applicant failed to properly supervise the conduct and practices of the boarding master in performing his functions, which included using his access to children, through his duties in teaching and the boarding house, to groom and abuse children. As the applicant pointed out, the word “properly” fails to articulate what the applicant should or should not have done in taking reasonable care. A causal problem also arises. The ASOC says nothing about grooming of the respondent or other children. The sexual abuse was said to have occurred as the respondent was on his way back to the boarding house after football training. It is not apparent that the opportunity for this to occur had any significant connection to the particular functions of the boarding master at the school.

10. [63]

    The problems with the pleading of the respondent’s case were highlighted in the course of oral submissions made by the respondent’s own senior counsel. To begin with, he argued that the “very nature of the vile act that was perpetrated of itself is material which is relevant to inferences that might be drawn as to the way in which this school was managing this particular person”. Yet the focus of a duty of care is prospective, not retrospective. The details of the actual abuse inflicted do not delineate what reasonable care required.

11. [64]

    Senior counsel said (emphasis added):

12. [65]

    A plaintiff is required to have a proper basis for making a claim at the time it is filed (see above at [35]-[37]). To suggest that it is acceptable to file a claim then use court processes to delineate what that claim is, and whether it is supportable, is to misunderstand that fundamental point.

13. [66]

    As regards whether the applicant had any reason to be aware of the boarding master having a propensity to sexual abuse, the respondent drew the Court’s attention to what was said in a letter sent to the applicant’s solicitors by those for the respondent:

14. [67]

    The second sentence is irrelevant. The first sentence vaguely suggests that the school was or should have been on notice, but no such allegation was pleaded or particularised. Senior counsel for the respondent submitted, correctly, that there was “an ethical difficulty for the pleader” in making allegations of prior abuse, involving criminal conduct, without firm evidence. If such an allegation was to be made then evidence from or about other students could have been obtained prior to filing the proceeding. If the respondent suspected that the applicant had records of complaints having been made, or such like, then preliminary discovery could have been sought.

15. [68]

    Senior counsel argued that “obviously enough, we would need to call expert evidence as to what procedures should have been in place prior to this to discourage” abuse, and asserted that seeking expert assistance should not be required until further in the progression of the proceedings. Asserting breach of a duty lies at the heart of a claim in negligence. Again, such a claim should not be filed without a proper basis. In various cases the ability to identify what acts or omissions the defendant should have taken may be obvious, or may be capable of articulation by the plaintiff themselves, or by experienced lawyers, or doing so may need expert assistance. As senior counsel for the applicant submitted, “whatever the source of the information about what precautions should have been taken, a plaintiff needs to articulate the precaution and not merely the result”.

16. [69]

    Senior counsel for the respondent argued that sexual abuse cases such as this one are different from, say, medical negligence cases – in which expert evidence is required to be obtained in advance of proceedings being instituted (UCPR, r 31.36) – because there are rarely witnesses to the abuse. That point is a very familiar one to the courts but it is not responsive to the point raised. It says nothing about identifying what precautions should have been taken, nor about when an expert is consulted to assist with articulating those precautions.

17. [70]

    Senior counsel stated that “there are plenty of mechanisms available to a defendant in a case such as this if they believe that they have any prejudice in relation to what’s contained in the pleadings”, referring to orders such as that the plaintiff file their lay or expert evidence early. That can be accepted. It does not preclude using the mechanism of striking-out an inadequate pleading.

18. [71]

    The respondent’s ultimate position was manifest in the following submission, made in response to a query about whether the only basis to allege that the school ought to have known something about the boarding master not being a fit and proper person was the fact that the abuse occurred:

19. [72]

    The submission illustrates that ultimately the respondent argued that the fact that the abuse occurred was sufficient basis to file a negligence claim against the school. It was not, at least as the law stood prior to AA. Articulating a claim of breach of an ordinary duty of care involves identifying, in terms which are not merely conclusory, what acts or omissions were available to the defendant and which a reasonable person would have taken to avoid the identified risk of harm.

20. [73]

    Vicarious liability was pleaded in the following terms:

21. [74]

    As explained above (at [50]-[53]), vicarious liability relevantly involves an employer being liable for the tortious acts of an employee committed in the course of employment. The ASOC does not identify what tort is alleged to have been committed by the boarding master (eg battery or negligence). However, that point is not the subject of the applicant’s complaint. Nor was the applicant’s ultimate complaint that the matters in the particulars should have been in the pleading (although they should have been).

22. [75]

    The applicant said that the basis for pleading vicarious liability is inadequately articulated insofar as the respondent has not identified “the actual facts concerning ‘role, function, conduct and scope of authority’” said to justify the conclusion that the applicant provided the occasion for commission of the abuse, so as to fall within the articulation of principle in Prince Alfed College (see above at [52]). The applicant argued that the pleading failed to articulate facts which distinguished the role, and the degree of leadership and control, assigned to the boarding master from that of any other teacher. If the relevant distinguishing was alleged to be “regular contact” with the respondent and other boarders outside formal school hours (quoting particular (c)), the applicant said that the meaning of “regular contact” should have been pleaded.

23. [76]

    The articulation of the respondent’s case on this issue is somewhat thin. But I am not persuaded that it is so insufficient that it should have been struck out. Although the particulars lack significant detail, particulars (a)-(c) nevertheless indicate that the respondent’s case is that the boarding master did have distinctive access to and a relationship with boarding students by virtue of his position (compared to other teachers and students), giving rise to the occasion for the abuse in the relevant sense. Those particulars are reinforced by the general point at particular (e). It is difficult to see what the first sentence in particular (f) adds to the picture, given that there is no allegation of any prior issues arising with respect to the boarding master’s conduct. However, the second sentence in that particular does fill out the picture somewhat. Taken together, and leaving aside the uncomplained absence of identification of the boarding master’s tort, the particulars sufficed to put the applicant on notice of the case it had to meet with respect to vicarious liability.

The High Court’s decision in AA and its significance for this case

1. [77]

   In AA, the plaintiff had been sexually abused by a Catholic parish priest in 1969 when the plaintiff was 13 years old. The abuse occurred in the presbytery where the priest lived, which had been made available to the priest by the relevant Catholic Diocese. The defendant in the case was taken to represent the Diocese. A majority of the High Court held that the Diocese owed a non-delegable duty to the plaintiff. The scope of the duty was expressed in somewhat different terms in the majority judgments (see Gageler CJ, Jagot and Beech-Jones JJ at [2] and [122]; Gordon J at [162], [300] and [323]; Edelman J at [385]). That difference is not material for current purposes. As already noted above (at [41]), it is well-established that a school authority owes a non-delegable duty to take reasonable care to prevent its students being exposed to reasonably foreseeable risks of not insignificant harm, when and where the school has some responsibility for the student.

2. [78]

   For current purposes what is significant is that two important, linked steps were taken by a majority of the High Court in AA. The first was to hold that, contrary to the majority conclusion previously reached in Lepore, “a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate” (see at [6]). That is so even if the conduct in question is criminal in nature. The second was to affirm that the duty will be breached if either the duty-holder itself, or any person to whom it has delegated the duty, fails to take reasonable care to avoid the relevant risk of harm (where lack of reasonable care encompasses intentional acts). Because the actions of a delegate are sufficient to establish liability, the duty-holder may be taken to breach its duty even if it had taken every precaution reasonably available to ensure that the relevant risk of harm did not eventuate. Put simply, the duty-holder can be liable for breach of a non-delegable duty regardless of its own fault. There was already authority for that understanding: see eg Kondis v State Transport Authority (1984) 154 CLR 672 at 688; [1984] HCA 61; Lepore at [265]; Bird at [37]. But it was made explicitly clear in AA.

3. [79]

   Thus the plurality stated that “a non-delegable duty may result in liability being imposed on the duty-holder without personal fault on the part of the duty-holder” (at [30]). Their Honours explained that “liability for breach of a non-delegable duty does not require it to be found that there were reasonable measures the non-delegable duty-holder could and should have taken to avoid harm occurring” (at [40]; see further at [47], [143] and [146]). Their Honours did note that the fact that liability could arise for the duty-holder even without personal fault does not mean that the duty-holder “is (or was) incapable of taking steps to minimise the risk that the delegate might fail to take reasonable care including by intentional criminal acts”, not least because “there can be no non-delegable duty to prevent harm that is not itself reasonably foreseeable” (at [30]). That point was made as part of the reasoning of legal policy as to why Lepore should be overturned. It does not undermine the clear statement that the duty-holder can be liable regardless of whether or not it was at fault.

4. [80]

   Similarly, Gordon J said (at [274], see also at [223], [275], [284]-[285] and [324]): “Where a duty-holder is liable for the breach of a non-delegable duty by reason of the conduct of a delegate, there is no requirement that the duty-holder themselves acted negligently. In that sense, the duty-holder's liability is strict.”

5. [81]

   The same understanding is implicit in what Edelman J said (see also at [366]):

6. [82]

   This aspect of the operation of a non-delegable duty was also recognised by the minority in the High Court. Justice Steward approved (at [456]-[457]) the statement by Leeming JA in AA in this Court that the provisions in Pt 1B of the CLA imposing an extended version of vicarious liability for certain conduct, with an available defence of having taken reasonable precautions, “cannot be reconciled with a non-delegable duty which of its nature is strict” (see Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 at [168]). Justice Gleeson made the same point in stating that “[t]he imposition of a non-delegable duty that would defeat the intended scope of the statutory duty” (at [482]). Justice Edelman had also noted, with respect to Pt 1B, the “irony that a legislative ‘fix’ to expand vicarious liability … fell short of the broader liability established by the common law, as properly understood, in respect of non-delegable duties” (at [340]).

7. [83]

   These aspects of the reasoning in AA have profound consequences for the potential liability of school authorities with respect to abuse of students by those for whom the authorities are responsible. If a claimant establishes that they were sexually or physically abused by (say) a teacher at a time and place when the claimant was in the care of the school, such as to fall within the scope of the school’s non-delegable duty of care, then the school authority is liable for any compensable harm suffered by the claimant as a result of the abuse. At core, thus, all a claimant in such a case needs to plead is that:

   1. (1)

      they were a student at a school conducted by the defendant, such that the defendant owed them the established non-delegable duty of care;

   2. (2)

      that the duty was breached – where it suffices to allege that the claimant was sexually or physically abused by a person for whom the defendant was responsible (in the sense that the defendant could be characterised as having delegated its duty to that person), and this abuse occurred at a time and a place within the scope of the defendant’s duty;

   3. (3)

      the abuse caused them harm, for which they claim damages.

8. [84]

   In this matter, the respondent made that type of point in his supplementary submissions filed by leave after the decision in AA. He said that although he “has pleaded a further case of vicarious liability it may be unnecessary for the Court to determine that alternative case given the effect of the decision in AA”. He did not say anything about the significance of his extensive – and flawed – pleading that the acts and omissions of the applicant involved fault.

9. [85]

   In response, the applicant accepted that “an institutional defendant in its position (assuming that a sexual assault by a person associated with the institution can be proven) is liable regardless of the adequacy of any protective measures it took or could have taken”. It nevertheless maintained that the case was not adequately pleaded in two respects. First, it said that AA requires “at least a pleaded allegation that the delegate failed to take reasonable care and/or … that the delegate was in breach of duty by not refraining from doing the alleged intentional act”. The applicant said that the current pleaded case did not meet these requirements.

10. [86]

    Second, the applicant said that if the respondent is not pursuing claims that the applicant itself failed to take reasonable care and/or that it was vicariously liable then “it is not appropriate to merely indicate that those claims may not be pursued at trial”, and the ASOC “ought be amended to delete claims which are not maintainable or to plead such claims adequately”.

11. [87]

    There is some force in the applicant’s argument that the ASOC as pleaded bears little resemblance to the case that, presumptively, the applicant will now run. There appears to be no utility in the respondent pursuing a claim based upon vicarious liability, as he implicitly accepted in his supplementary submissions. And his extensive – and inadequate – pleadings about the fault of the defendant go beyond what he needs to prove in order to make out his case. There is no practical reason to doubt that the respondent will pursue the simple sort of claim that has been opened up by AA, as just outlined.

12. [88]

    However, in substance the ASOC does articulate enough to make out what is now a maintainable case. As to duty, as explained, the respondent pleads at [5] of the ASOC that the applicant owed him a non-delegable duty of care to take reasonable precautions to prevent him from being exposed to sexual abuse when he was under the applicant’s care, control and supervision.

13. [89]

    As to breach, the applicant pleads that he was sexually abused by the boarding master, and the particulars do enough to indicate that this occurred on school grounds at a time when he was within the school’s care. It is true that the ASOC does not state in terms that the breach of the applicant’s duty was constituted simply by the fact of the boarding master’s abuse. But the respondent can now be in no doubt that that is the case it has to meet. Thus the first purpose of pleadings as identified above at [30], relating to procedural fairness, does not suffice to uphold the applicant’s complaints about the ASOC. As to the second, relating to the scope of interlocutory disputes, the potential for such disputes to arise now seems much more limited. For instance, it is not currently apparent what purpose would be served by an order requiring discovery from the school as to its processes and the like. As to the third to fifth, involving identification of issues that the court has to determine for various reasons, those purposes would be advanced by requiring a clearer pleading. However, again, the practical significance of those matters seems very limited in this case.

14. [90]

    The requirement to plead causation of damage links back to the identification of breach; it does not add anything to analysis of the pleading in this case.

15. [91]

    In AA itself the duty was said in the pleading to be non-delegable (noted eg by the plurality at [77]). The non-delegable aspect of the duty was not the focus of the case run at trial because of Lepore. It seems unlikely that the pleading in that case alleged that the Diocese’s duty was breached simply by the abusive acts of the parish priest, given that such a pleading would not have been consistent with the law as then understood. And yet AA succeeded on that basis in the end. Whilst the High Court case was not addressed to the adequacy of the pleading, it does throw some light on the significance of a pleading that is both under- and over-inclusive in this context.

16. [92]

    It would be simpler and preferable in this case for the respondent to file a further version of his pleading which articulates the simple case he has now foreshadowed, and only that case. However, in the context outlined, it would not advance the interests of justice to uphold the appeal on the basis that the pleading articulates two types of case which it now appears will not be pursued, and because it lacks a formal allegation of breach of duty being occasioned by the boarding master’s abuse of itself.

Conclusion and orders

1. [93]

   But for the High Court’s decision in AA I would have concluded that the ASOC is substantially deficient in articulating the claimed breach of duty by the applicant. The conclusion of the primary judge to the contrary involved House v The King error. Insofar as her Honour reasoned at [14] that “many or most of the material facts are uniquely within the knowledge of the defendant”, that took account of an irrelevant matter insofar as it was not responsive to the applicant’s complaints, and failed to consider the material point that a plaintiff must have a proper basis for making a claim at the time that it is filed. Similar points may be made about her Honour’s reasoning at [28] that the respondent had “attempted to meet the defendant’s complaints with regard to the manner in which the case has been pleaded”. That such an attempt had been made did not mean it had succeeded. The discretion to permit amendment pursuant to s 63 of the CPA would thus have fallen to be exercised by this Court. I would have made an order permitting the filing of the ASOC with the exception of the whole of paragraph 8 and the particulars to paragraph 5, along with orders facilitating the respondent having an opportunity to replead its allegation of breach.

2. [94]

   However, in light of AA, although the ASOC remains no model pleading, and contains much which is now superfluous, that does not constitute a sufficient basis to uphold the appeal in the circumstances of this case. The ASOC pleads matters sufficient to satisfy the now limited requirements for making a claim against a school authority alleging that a person for whom the school was responsible abused the respondent, causing compensable harm. The appeal should therefore be dismissed, with costs following the event.

3. [95]

   The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appellant to file its draft notice of appeal within 7 days.

   3. (3)

      Appeal dismissed.

   4. (4)

      Appellant to pay the respondent’s costs.

4. [96]

   PRICE AJA: I have had the considerable advantage of reading Kirk JA’s comprehensive judgment in draft. I agree with his Honour that but for the High Court’s decision in AA that the ASOC was deficient and the conclusion of the primary judge involved House v The King error. I agree with his Honour’s reasons and proposed orders.