Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.
On 11 February 2026, the High Court of Australia delivered a landmark judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA). The Court has overturned the long-standing authority of New South Wales v Lepore [2003] HCA 4 finding that organisations that exercise care of children can be held liable for breaches of a non-delegable duty of care which includes intentional criminal acts, such as sexual abuse, committed by a “delegate”.
This decision removes key defences previously relied upon by institutions facing historic abuse claims, specifically those involving non-employees like volunteers. In doing so, it significantly expands the circumstances in which organisations can be held liable for the actions of volunteers, and requires a higher standard of monitoring and supervision to keep children and young people safe.
What are the facts?
- The plaintiff, AA, was a 13-year-old student in 1969 when he was sexually abused on multiple occasions by Fr Ronald Pickin, a Catholic priest.
- As a member of clergy, Fr Pickin was not an employee of the Diocese.
- AA commenced proceedings in the Supreme Court of NSW, where the primary judge found that Fr Picken had sexually assaulted AA, and the Diocese was vicariously liable as it owed AA a common law duty of care which it breached.
- That decision was appealed and overturned, with the Court of Appeal finding that the Diocese did not owe AA a common law duty of care where there was no employment relationship.
What was the decision?
The High Court held, by majority, that the Diocese was liable to AA for breach of a non-delegable duty of care that it owed at the time of the abuse. Specifically, the majority held that:
- A non-delegable common law duty of care requires that the duty-holder, in this case the Diocese, had undertaken the care, supervision or control of a child, or was so placed to assume responsibility over their safety.
- The Diocese owed AA a non-delegable duty of care to AA to ensure reasonable care was taken to keep AA safe – even where that duty was delegated to (in this case) a member of clergy.
- The non-delegable duty may be breached by intentional criminal conduct of the duty-holder or their delegate.
The Difference: Vicarious Liability vs. Non-Delegable Duty
To understand the impact of this decision, it is important to understand the difference between the two forms of liability that the High Court addressed:
Vicarious Liability (The “Employee” Test):
- Historically, this has been the primary route for holding institutions liable. It holds an employer strictly liable for the wrongful acts of an employee committed in the “course of employment.” The test requires the wrongdoer to be an employee; if they are a volunteer or priest the claim will fail as there is not an employer-employee relationship.
Non-Delegable Duty of Care (The “Delegate” Test):
- A non-delegable duty of care is a ‘special’ form of the common law duty of care that is owed by an institution to a vulnerable person such as a pupil, patient or parishioner, in circumstances where they have assumed the care, supervision or control of that person. As the name suggests, the duty of care cannot be delegated to someone else. If the delegate entrusted fails to take reasonable care, the organisation is liable where the harm was foreseeable, regardless of whether that delegate is an employee or volunteer.
How the High Court Has Changed the Obligations
For over two decades, the decision in Lepore generally protected institutions from non-delegable duty claims involving intentional criminal acts. The High Court have overturned that decision, establishing that:
- Intentional Acts are Covered: A criminal act on the part of a delegate, is, by definition, a failure to take reasonable care of the child. Because of this, the institution can be found to have breached its duty to ensure care was taken, even if the act was criminal and unauthorised.
- No “Course of Employment” Defence: The liability flows from a direct duty owed by the institution. Therefore, it does not matter if the perpetrator was acting outside the normal scope of employment. The relevant test is if the delegate was entrusted with the care of a child by the institution.
- Applies to Non-Employees: The duty applies to any “delegate” or anyone the institution assigns to perform its functions. In the present case, the perpetrator was a priest, not an employee. The Court confirmed that the duty covers delegates, including priests and, by extension, volunteers.
Impact on Volunteers and Historic Claims
The High Court’s ruling widens the scope of potential liability for organisations, in particular for organisations that rely on volunteers, such as scouting groups, schools and sporting clubs.
Under Lepore, an organisation may have been able to argue that it was not liable for harm if the harm was committed by eg, a volunteer parent or scout leader. Under the High Court’s ruling, if an organisation assigns a volunteer to perform a function, the organisation is responsible for that volunteer’s actions where a non-delegable duty of care is owed. As such, the institution assumes responsibility for the child’s safety while they are in the volunteer’s care.
Key takeaways for organisations
- Organisations can no longer rely on the distinction between employees and volunteers to protect themselves from liability for historic abuse. If an individual was placed in a position of authority to care for a child on behalf of the organisation, the High Court has effectively ruled that the organisation had a duty to ensure that reasonable care would be taken.
- Organisations may need to consider additional steps to monitor and supervise the activities of volunteers, in circumstances where they are exercising care, supervision or control over children.
- Organisations should ensure that screening and monitoring of volunteers who have contact with children, is embedded in the recruitment process and continues throughout their engagement with an organisation. This goes beyond Working with Children Checks, and includes asking the right screening questions to identify potential risks, ongoing child safety training and supervision.
- Certain organisations, such as schools, are still required to comply with their duty of care set out under statutory guidelines in order to meet registration requirements. For example, under the Victorian Registration and Qualification Authority’s Guidelines to the Minimum Standards and Requirements for School Registration, schools in Victoria must, among other things, take reasonable precautions to prevent the abuse of a child by an individual associated with the organisation while the child is under the care, supervision or authority of the organisation.
- With the shift away from vicarious liability and the employment relationship, this case broadens the scope of institutional liability, as organisations may be held liable for the actions of a greater number of people associated with their organisations, including volunteers and religious personnel.
How we can help
Our child safety team can support organisations to understand the extent to which they owe a duty of care to children, and steps to take to remain compliant with the non-delegable duty of care and embed child safety at all levels of the organisation.
Our disputes team can assist with resolving claims or potential claims
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.