The High Court of Australia has recently handed down a decision that will reshape the landscape of institutional abuse litigation: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2.
What happened in this case?
The case involved “AA,” who was sexually assaulted by a priest in 1969 at the age of 13. While a primary judge initially found the Diocese liable, the Court of Appeal later overturned that decision based on previous legal precedents (specifically Lepore and Bird v DP), which not only made it difficult to hold institutions “vicariously liable” for the acts of individuals who were not their employees, but also made it difficult to establish a “non-delegable duty of care” in respect of intentional criminal acts.
The Breakthrough: Non-Delegable Duty
The High Court took a different path. It focused on the non-delegable duty of care.
A non-delegable duty arises when an institution (such as a school or church) assumes the care and supervision of a vulnerable person. The High Court made two vital determinations:
- This duty can be breached by intentional conduct (criminal acts) of the institution or its “delegate”.
- The previous ruling in NSW v Lepore, which suggested otherwise, is now overturned insofar as the ruling held that there could be no non-delegable duty in respect of harm caused by intentional criminal conduct.
Why this matters for survivors
Historically, institutions often escaped liability by arguing that the abuse was an “independent criminal act” by an employee or someone associated with the institution, rather than an act for which they were responsible.
Today’s ruling means:
- Greater Accountability: Institutions cannot simply “delegate” children’s safety to others and wash their hands of the consequences.
- Lower Legal Hurdles: Survivors may no longer need to prove “vicarious liability” if they can prove a breach of a non-delegable duty.
- Consistent Justice: This brings Australia closer to a legal system in which the institution that created the opportunity for abuse is held responsible for the harm caused.
How Carbone Lawyers can help
This ruling has implications for claims previously considered “difficult” or “unwinnable” under the Lepore precedent. At Carbone Lawyers, we specialise in navigating these complex legal changes to ensure survivors receive the maximum possible compensation.
If you, or someone close to you, thinks you may be impacted by this decision, we invite you to contact our offices for a confidential discussion about your circumstances.
