Case Law Update: Expansion of Non-delegable Duty in Institutional Abuse Claims

On 11 February 2026, the High Court delivered its decision in the matter of AA v Diocese of Maitland-Newcastle [2026] HCA 2, significantly expanding the scope of non-delegable duty in institutional liability cases.

The AA decision has far-reaching implications for both institutions and victim-survivors, including:

• Establishing a form of strict liability, confirming that institutions cannot delegate their responsibilities towards children and other vulnerable individuals to a third party to avoid liability if that third party causes harm. Where such harm occurs, liability may attach regardless of the institution’s direct involvement;
• Widely expanding the meaning of “delegate” beyond an institution’s employees to a wide range of individuals where the institution has tasked them with the care, supervision, or control of a child;
• Overruling the earlier decision in New South Wales v Lepore [2003] HCA 4 so that victim-survivors can now make a non-delegable duty claim where a perpetrator committed an intentional criminal act against them;
• Lowering the threshold for establishing a foreseeable risk of harm, reducing the evidentiary burden required to establish a breach of duty where abuse is proven;
• Potentially putting a higher burden of proof on plaintiffs to show that the abuse occurred in contested cases.

The full implications of this decision will continue to emerge as subsequent decisions further define the scope of non-delegable duty of care.

If you would like advice in relation to an institution’s non-delegable duty of care, please contact Charlotte Cooper on 0492 216 990 or via email to charlotte.cooper@lewisholdway.com.au.