The High Court of Australia has delivered a landmark ruling in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (AA),[1] concerning allegations of sexual abuse committed by a Catholic priest, against the plaintiff AA.
AA creates a new precedent: institutions may now be held directly liable for the tortious and intentional conduct of delegates where a non-delegable duty of care is owed and an institution and its delegates have assumed responsibilities for the care of a specific class of people – relevantly, children.
Previously, New South Wales v Lepore,[2] was authority for the proposition that institutional liability for breach of non-delegable duty of care did not extend ‘to include responsibility for intentional defaults by delegates.’[3]
Revised application of non-delegable duty
A non-delegable duty may be owed in accordance with the ‘nature and scope of the relationship between a diocese (or other institution) and a child by three key qualifying factors.’[4]
- as a matter of fact, the child must be placed under the care, supervision or control of a delegate;
- the child must be in such a position by cause of the delegate performing, or purporting to perform delegated functions of the institution; and
- The harm (of the child sustaining a personal injury by way of child abuse) must be reasonably foreseeable.
Key Takeaways
- This extension of a non-delegable duty may apply to any delegate of an institution. The scope of such liability appears to now extend beyond the confines of employment, distinct from the current state of the common law in respect of vicarious liability.
- For the first time, institutions may be liable for the intentional criminal conduct of non-employees, provided that they are delegates of that institution and that a non-delegable duty is found to exist.
- Ultimately, the High Court’s ruling in AA increases the risk of exposure in liability for institutions facing allegations of child abuse where an institution owed a claimant a non-delegable duty of care, assumed responsibility for the safety of a child and where the harm occasioned was reasonably foreseeable.
- AA provides a direct way home for a claimant to establish liability against an institution. It will be interesting to see what implications, if any, AA will have on the proposed Victorian legislative reform of the law of vicarious liability, introduced in the wake of Bird v DP, [5] where the High Court confined vicarious liability strictly to employment relationships.
- Ultimately, whether any legislative amendments will be advanced to expand the statutory mechanism for setting aside deeds, so as to encompass claims resolved during the period in which plaintiffs could not rely on vicarious liability arising from Bird v DP,[6] i.e. from November 2024 to now remains to be seen.
Should you wish to speak with a member of Nevett Ford’s litigation team, please call us on (03) 9614 7111 or email melbourne@nevettford.com.au
[1] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2.
[2] New South Wales v Lepore (2003) 212 CLR 511.
[3] New South Wales v Lepore (2003) 212 CLR 511, [265].
[4] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, [121].
[5]Bird v DP [2024] HCA 41.
[6] Ibid.
The litigation & Dispute Resolution Team
