The High Court’s framework for liability in institutional child abuse cases: The recent cases of DP and AA

Abstract

On 11 February 2026, some 14 months after Bird v DP (a pseudonym) was handed down, the High Court revisited key questions of liability in historical child abuse cases in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle. These two cases intersect in critical ways, revealing intellectual legal preferences for the determination of liability in this area and have had a significant impact (directly or indirectly) improving the rights of institutional child abuse victims to compensation.

Institutional child abuse is an area of law that has exploded since the Royal Commission into Institutional Responses to Child Sexual Abuse handed down its final report in December 2017. Thousands of such cases have been initiated or resolved and many more appear likely to be pursued. Dozens of legislative reforms across states and territories have been implemented to improve legal access and damages for victims of child abuse, in areas including the removal of limitation periods, ¹ overcoming the so-called Ellis defence relied upon by unincorporated associations such as church and volunteer institutions, ² the setting aside of previous settlements protected by judgments or (more commonly) deeds of release, ³ as well as the enshrining of a cause of action in vicarious liability. ⁴

Following expressions of remorse and contrition from (in particular) the Catholic Church in the near aftermath of the Royal Commission, that institution has developed an aggressive litigation and lobbying approach to the right to, and extent of, compensation of child abuse victims.

This has, in part, led to a raft of High Court rulings profoundly impacting the viability and operation of this area of law by removing certain hurdles and clarifying access by victims to legal remedies, including in respect of the settings for a fair trial in the ‘new world’ of historical abuse cases and the availability of a permanent stay of such cases, ⁵ and the proper construction of the ‘just and reasonable’ test in applications for the setting aside of previous judgments and settlements. ⁶

Two recent High Court cases, however, have most profoundly impacted the liability landscape in historical institutional abuse cases, defining important ways in which an institution may be held liable for child abuse. The first, Bird v DP (a pseudonym), ⁷ handed down on 13 November 2024, considered the extension of the vicarious liability principle (whereby an employer may be held liable for the acts of its employees) to a priest of the Catholic Church. The second, AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, ⁸ delivered on 11 February 2026, addressed the application of the principle of non-delegable duty whereby an institution is liable for failing to ensure that reasonable care is taken for a child with whom it is in a special relationship of vulnerability.

This article will consider these two landmark judgments, the legislative responses to the DP decision and the broader context in which those cases arise. It is apparent that the High Court has, in recent years, taken a particular interest in how the causes of action (vicarious liability and non-delegable duty) are to be considered and applied. Their application in the cases reveals a strong preference for a non-delegable duty liability framework in the area of historical institutional child abuse.

Bird v DP (a pseudonym)

On 13 November 2024, the High Court determined that the principle of vicarious liability, developed in the common law of Australia over many decades and rulings, only applied in an employment relationship. The effect of that finding, and in the context of the appeal it was hearing, meant that a Catholic Diocese could not be held vicariously liable for the actions of one of its priests, as the Catholic Church had consistently and effectively maintained a fiction of non-employment of its religious personnel.

Vicarious liability extends to an employer (or master) the liability of an employee (servant), based on the wrongful acts of the employee, whether or not those acts were authorised in the broad sense, where the employee’s wrongful acts were sufficiently or closely connected to the employee’s duties or powers of employment so that they could be said to have been performed in the ‘course of their employment’. ⁹

The ruling in DP signalled a disinclination to develop the common law beyond the existing rigid interpretation of vicarious liability as only applying to an employment relationship, the Court instead expressly stating that such a change would have to be made by Parliaments. ¹⁰ Indeed, the Court maintained that a ‘reformulation’ of the law of vicarious liability was ‘properly the province of the legislature’, particularly given that all Australian jurisdictions had ‘sought to address … issues of institutional liability following on from various reports’ and taken differing approaches. ¹¹

The case concerned allegations that Father Coffey, an assistant priest in the Port Fairy parish of the Ballarat Diocese in around 1970–71, had sexually abused DP in DP’s home on two occasions when he was approximately five years of age, causing psychiatric injury impacting his life in a variety of ways, including causing him significant economic loss. ¹²

In what was to become a central aspect of the claim, DP alleged, and the trial judge found, that the Defendant (Bishop Bird on behalf of the Ballarat Diocese) was vicariously liable for the sexual assaults by Father Coffey of DP. That ruling was upheld by the Court of Appeal. ¹³

A Special Leave hearing occurred on 20 October 2023, at which Gageler J (as he then was) and Gordon J granted the Diocese leave to appeal. Of importance to considerations in this article and the recent judgment in AA, was a matter raised by the Court at the leave hearing as to whether DP might be a case in which to consider the relationship between the principles of vicarious liability and those governing non-delegable duties. On the invitation of the Court, ¹⁴ a notice of contention (whereby a respondent to an appeal may ask the Court to uphold the decision in their favour but on different grounds) was filed by DP, asserting that the Diocese also owed DP a non-delegable duty to protect him from the risk of sexual abuse by its priests, including (the perpetrator) Father Coffey, in the course of Coffey’s functions and duties as a priest and as a representative, servant or agent of the Diocese.

The Court unanimously allowed the Diocese’s appeal in three separate judgments (a plurality of Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ, along with the separate judgments of Gleeson J and Jagot J), ¹⁵ rejecting the extension of the vicarious liability principle to a non-employment relationship,

Most other common law countries had in recent decades extended the common law relating to vicarious liability beyond the existence of an employment relationship, including the United Kingdom, ¹⁶ Canada, ¹⁷ New Zealand, ¹⁸ Singapore ¹⁹ and Ireland. ²⁰ The same is true in many civil law countries. ²¹

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

On 11 February 2026, some 14 months after DP was handed down, the High Court revisited key questions of liability in historical child abuse cases in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, ²² a case concerning the sexual abuse of a man when he was 13 years-old by the parish priest Father Pickin, on a number of occasions in the Church presbytery. The most critical feature of the High Court’s judgment in AA is the finding that the Diocese owed a non-delegable common law duty of care to the plaintiff, AA, which it had breached, giving rise to damages for sexual assaults occasioned by a parish priest. That ruling overturned the longstanding and tortuous ruling of the High Court in New South Wales v Lepore ²³ which, by a complex majority, had held that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act, ²⁴ a holding described by Edelman J in his separate concurring judgment as ‘indefensible’. ²⁵

Non-delegable duty arises where ‘the nature of the relationship of proximity gives rise to a duty of care of a special and “more stringent” kind, namely a “duty to ensure that reasonable care is taken”.’ ²⁶ The nature of the relationship, including where there is an undertaking of ‘care, supervision or control of the person or property of another’, is one in which the defendant has assumed the particular responsibility to ensure that reasonable care is taken rather than merely to take reasonable care. ²⁷

The majority in AA was formed by a plurality (Gageler CJ, Jagot and Beech-Jones JJ), and two separate concurring judgments by Gordon J and Edelman J. Justices Steward and Gleeson both separately dissented.

AA had succeeded in his trial, ²⁸ on the basis that the Diocese was to be held vicariously liable for the sexual abuse of him by parish priest Father Picken. At the time of that ruling, the High Court had not handed down its ruling in DP and the Victorian Court of Appeal ruling with respect to vicarious liability in the context of a non-employed priest and his diocese was in place, ²⁹ the Court putting the legal position with respect to this issue as follows:

The relationship between [priest] and the Diocese through the person of the Bishop was governed by a strict set of normative rules that each of them had subscribed to, and which enabled [the priest] to embody the Diocese in his pastoral role. Those rules of Canon law also permitted the Bishop to exercise control over [the priest] that was at least as great as, if not greater than, that enjoyed by an employer. The formal structures that were in place allowed the Bishop to exercise control over, and to limit the area of independent action on the part of, the priest. The Bishop had the means to do so by providing instruction, supervision, transfer, limitation on authority, and ultimately by seeking sanctions, including expulsion, from church authority. In return the priest was clothed with the authority of the church. ³⁰

As a result of the trial judge finding in favour of AA on this basis, the question of the application of the principle of non-delegable duty was not determined.

By the time the case reached the New South Wales Court of Appeal, the High Court had determined DP and ruled that vicarious liability outside of the existence of an employment relationship did not exist as part of the common law of Australia. ³¹ As the plaintiff had to concede, his judgment could not be maintained on the basis determined by the trial judge. He did, however, argue that judgment should have been given on the basis that the Diocese owed him a non-delegable duty, an argument rejected by the Court of Appeal on the application of the principle in Lepore that no such duty could attach to a delegate committing an intentional criminal act. ³²

As relevant to this article, AA sought and obtained special leave from the High Court primarily to test the argument that a non-delegable duty did extend to a delegate committing an intentional criminal act, the purport of which was to ask the question: should Lepore finally be overturned? The answer to that question was (by a majority of 5:2), yes.

The plurality (Gordon, Edelman and Steward JJ agreeing on this point), found that

a non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property as to assume a particular responsibility for their or its safety. ³³

Further, the plurality, and Gordon and Edelman JJ, found that ‘a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate’. ³⁴

The critical feature of this holding is that the majority position in Lepore (at least as interpreted since that time) has now emphatically been overturned.

It has long been the case that a non-delegable duty (not simply the duty to take care but the duty to ensure that care is taken), extends in certain circumstances to the negligent acts of a duty holder’s delegates. Such has been found, for example, in the context of employment, ³⁵ schools ³⁶ and hospitals. ³⁷ As Gordon J put it, much

depends on the undertaking or assumption of care, supervision or control by the duty holder and, from the perspective of the plaintiff, the entrustment of their care, supervision or control to the duty holder, ³⁸

the cases emphasising a ‘special dependence or vulnerability’ of the plaintiff vis-à-vis the defendant. ³⁹

The Court’s holding, in the context of the facts of this case, were expressed by the plurality in these terms:

[I]n 1969 the Diocese owed a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child. The scope of this duty extended to the harm caused to AA by the Diocese failing to ensure that reasonable care was taken against the foreseeable risk of personal injury to AA, including from the intentional infliction of such injury by the Diocese's own delegates, specifically priests, and by third parties. ⁴⁰

The majority judges got to this point in somewhat different ways. Those nuances are not the subject of this article; rather, the focus of this article is to reflect on the High Court’s approach to liability in historical child abuse cases from DP (and, leading up to that ruling, to AA). As will be apparent, in AA the High Court has now arrived at the point it appeared to be heading towards since DP and likely earlier. In the process, however, the legal landscape of liability in this area has evolved across common law and statute in ways that may not have been entirely intended or expected.

The evolution of AA and why DP failed at the High Court

There are different ways of viewing the evolution of common law liability for historical institutional child abuse. While, as noted above, the High Court’s ruling in DP was at odds with common law development in most other countries where the issue has arisen, there is behind it a conceptual issue that has only crystallised now in the judgment in AA.

At least as far back as CCIG Investments Pty Ltd v Schokman, ⁴¹ Edelman and Steward JJ addressed ‘the three areas of law described as “vicarious liability”’, being agency, vicarious liability (proper) and non-delegable duty, explaining that there had been a confusion in the evolution and application of these principles in the common law of Australia. ⁴² Their Honours concluded:

[T]he focus in the principal joint judgment in Prince Alfred College Inc upon factors of ‘authority, power, trust, control and the ability to achieve intimacy with the victim’ has led leading writers in this field to make observations to the effect that in Australia ‘it might now be argued that imposing liability for breach of a non-delegable duty of care in cases of child sexual abuse is more appropriate than vicarious liability’. Once again, the use of the label ‘vicarious liability’, conflating three distinct areas of law, can distract from the underlying legal principles. ⁴³

This passage explains to some degree both the interest expressed by the Court in DP in a determination of that case on the basis that there existed a non-delegable duty, as well as the rejection of the finding of the lower courts of the principle that the law of vicarious liability had evolved in the common law of Australia beyond solely an employment relationship.

DP was never an appropriate vehicle for consideration of the nature of a non-delegable duty owed by a Diocese to a child abuse plaintiff. The facts of DP (involving a parish assistant priest abusing the plaintiff as a child in his own home) would clearly stretch significantly the circumstances in which a non-delegable duty had previously been considered applicable (leaving aside the impediment of Lepore that required revisiting). Even on the facts of AA, Justices Steward and Gleeson did not consider the duty as extending to the Diocese on the facts of that case. ⁴⁴ The majority, however, did consider that the facts gave rise to the application of non-delegable duty, and that Lepore should be overturned to extend the duty to intentional (including criminal) acts of a delegate (in that case, Father Picken).

As DP was never an appropriate vehicle for consideration of the nature of a non-delegable duty owed by a Diocese to a child abuse plaintiff, the notice of contention (although invited by the Court) was always doomed. For sound reason, DP had not pleaded his case in non-delegable duty and, therefore and logically, did not seek a finding that such a duty applied either at trial or on intermediate appeal. Perhaps inevitably, therefore, the High Court held with respect to the notice of contention that, as the factual basis for such a duty was not pleaded or tested in DP at trial, and because the Court considered itself ‘confined to deciding the issues which the courts below were invited by DP to decide and which remain in dispute in this Court’, the notice of contention was to be dismissed. ⁴⁵

A reading of DP, in light of the judgment of Edelman and Steward JJ in CCIG referred to above, and now AA, suggests that the High Court has, for some time, seen the appropriate form of liability for tortious claims by historical child abuse claimants to be non-delegable duty. During the hearing of DP before the High Court, Edelman J at one point put to counsel for the Diocese that it was ‘very hard to see why intentional wrongdoing would be carved out from non-delegable duties’, the response to which was that such an extension would be ‘drastic’. ⁴⁶ Not so drastic, it seems, that the Court had not clearly contemplated DP as a vehicle for such change and has now taken that step in AA.

Legislative reform to vicarious liability

The Court in DP made clear that, in its view, ‘[r]eformulation of the law of vicarious liability is properly the province of the legislature’. ⁴⁷

Advocates for child abuse victims promptly took up the challenge, leading to the progressive introduction of legislation in line with the retrospective application of vicarious liability in relationships akin to employment: first in the passing of the Civil Law (Wrongs) (Organisational Child Abuse Liability) Amendment Act 2025 (ACT) in October 2025, ⁴⁸ then the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 (Vic) in February 2026, ⁴⁹ while narrower legislation has been introduced into the Western Australian Parliament. ⁵⁰

That has led to a most interesting consequence, whereby the form of liability declared by the High Court as inapposite to deal with such cases (vicarious liability), at least at common law, is now or progressively becoming available through legislative change adjacent to the common law doctrine. At the same time, the High Court has overturned Lepore and favoured non-delegable duty as the source of liability for cases involving delegates (of Dioceses, States and other institutions), and third parties, for intentional (including criminal) acts. While the application of the legislative changes are as yet uncertain, they will be a significant legal vehicle in many abuse cases.

Another interesting feature of the virtually synchronous materialisation of the Victorian vicarious liability legislation and the handing down of AA, is the provision for the setting aside of previous judgments or previously settled causes of action for matters resolved from the date DP was handed down (13 November 2024) until 24 February 2026, the commencement date of the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 (Vic). ⁵¹ Cases compromised by the operation of DP and accordingly resolved for diminished value may now be revisited, and actions (re)commenced. That process has already begun.

Conclusion

The plurality in AA said that the reasoning underlying Lepore was already doubted by the High Court in DP, as well as Willmot. ⁵² It is sufficiently clear from AA, that the Court has had Lepore in its sights for some time and that ruling has now been set aside in so far as it prevented the extension of non-delegable duty to the intentional acts of delegates. The effect will doubtless be a strong network of tortious liability applicable to institutional child abuse, and open avenues to liability in many cases that were previously in question or closed. In this way, access by victims of child abuse to legal recourse and damages has now materially improved. Bishop Bird (as nominated representative of the Catholic Diocese of Ballarat) may well be rueing his decision to take DP to the High Court. The tea leaves regarding non-delegable duty and its impact on historical child abuse claims were there to read in CCIG, where the High Court had explained the role of non-delegable duty as a cause of action and its potential relationship with vicarious liability and with the Court’s earlier ruling in Lepore. The Court’s ruling in DP suggested it was just a matter of time before Lepore would be overturned. In the meantime, vicarious liability (unavailable to abuse victims where the perpetrator of their abuse was not in a formal employment relationship) has now made or is making its way into legislation at least in the Australian Capital Territory and Victoria.

The sum impact is a blow to recent efforts by the Catholic Church to use the law as its sword against plaintiffs injured by the abuse (in particular) of paedophile priests, seeking to achieve fair compensation. AA, and the effect of DP, appears to have given rise to a strengthened and more coherent framework for claims by such victims against church and state institutions.