High Court Strengthens Legal Path for Victims of Institutional Abuse
The High Court has handed down a major decision that reshapes the law on institutional responsibility for child sexual abuse. In AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, a majority of the Court confirmed that institutions can be held directly liable, not just vicariously, for intentional criminal acts committed by individuals acting under their authority, where a non-delegable duty of care exists.
The case concerned allegations of sexual abuse by a Catholic priest in the late 1960s. While previous decisions had placed limits on how far institutions could be held responsible for the criminal actions of others, the High Court has now confirmed that those limits were too narrow.
Supreme Court to High Court
The plaintiff, anonymised as AA, alleged he was repeatedly abused by Fr Pickin, a Catholic priest, in 1969 when he was 13 years old. At the time, Pickin was delivering scripture lessons at a public high school attended by AA. The abuse took place at the presbytery, where Pickin resided, after inviting AA and other boys to visit.
Although Pickin passed away in 2015 and was never charged, AA brought proceedings against the Diocese in the NSW Supreme Court. The trial judge ruled in favour of the plaintiff and awarded damages exceeding $630,000. The Court accepted that the Diocese owed AA a duty of care, had failed to take reasonable steps to protect him, and was both vicariously and directly liable for the abuse.
The Diocese appealed, and the NSW Court of Appeal overturned that decision. The Court of Appeal questioned the plaintiff’s credibility, finding inconsistencies in his evidence. It also held that the Diocese did not owe a duty of care under the circumstances, and, relying on the High Court’s earlier decision in Lepore (2003), concluded that a non-delegable duty of care could not be breached by an intentional criminal act.
AA then appealed to the High Court.
High Court Confirms Institutions Can Be Directly Liable
In a 5:2 majority, the High Court found that the Diocese owed AA a non-delegable duty of care and had breached that duty. The Court accepted that the abuse had occurred, rejecting the Court of Appeal’s assessment of the plaintiff’s credibility.
The majority found that the Diocese had placed Fr Pickin in a position of authority and trust, which allowed him to abuse children. Because the Diocese controlled the functions of priests and their interactions with children, it had assumed responsibility for their safety, including in non-school settings like the presbytery.
The Court overruled aspects of Lepore, holding that intentional acts like sexual abuse can amount to a breach of a non-delegable duty. In doing so, the Court clarified that a non-delegable duty is not about whether the institution was negligent itself, but whether it created a relationship of dependency and control, and failed to ensure the child’s safety within that relationship.
Not an Unlimited Duty
The Court was careful to note that this does not mean institutions are liable for every harm suffered by a child. Liability depends on two key factors:
- whether the harm was reasonably foreseeable, and
- whether the institution assumed responsibility for the child’s safety.
Where a child is harmed outside the scope of that relationship, for instance in a purely social context unrelated to the institution, liability may not arise.
Implications for Abuse Claims
The decision significantly broadens the legal avenues available to survivors of historical abuse. Where vicarious liability may not be available, for instance, where the abuser was not technically an employee, survivors may still succeed by arguing breach of a non-delegable duty.
It also means institutions cannot escape liability simply by showing a lack of direct knowledge. What matters is whether they created or authorised the relationship that placed the child at risk.
However, statutory damages caps may still apply, depending on the legal basis of the claim and the applicable jurisdiction. In this case, while liability was upheld, the High Court reduced the damages awarded to be consistent with NSW’s Civil Liability Act 2002 limits.
A Warning to Institutions
This case has significant implications for schools, religious bodies, sporting organisations and other institutions engaged in the care of children. It raises the standard for safeguarding obligations and confirms that institutions may face direct liability for intentional criminal conduct if their own structures and authority relationships made the harm possible.
For institutions facing historic abuse claims, this decision is likely to increase both legal exposure and the scope of arguments available to claimants.
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Related Blog – Overview of Recent Changes in Family Law & Implications for Child Safety