Warning: This article contains descriptions of sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.

By Sonya Parsons, Partner and Luke Geary, Partner

The High Court’s decision in AA[1] provides important clarification on the responsibilities of institutions involved in the care of children and other vulnerable people (for example, the elderly and persons with disability). The decision confirms that, in certain care relationships, organisations may bear a non‑delegable duty of care, including in relation to intentional wrongdoing by those to whom care has been entrusted.

For organisations facing historical abuse claims, the decision narrows the range of liability defences but also brings greater legal certainty and a clearer framework for assessing risk and resolving claims.

What the High Court decided

The High Court confirmed that where an institution has assumed responsibility for the care, supervision or control of children or other clearly vulnerable individuals, it may owe a non‑delegable duty of care.

Where such a duty exists:

• the organisation retains ultimate responsibility for keeping children and vulnerable individuals safe;
• the duty cannot be discharged by delegation to employees, volunteers or external carers; and
• overturning previous High Court authority to the contrary, liability is likely to arise for intentional torts, including sexual or physical abuse.

Importantly, once abuse and resulting harm are found to have occurred within the scope of the assumption of care relationship, the focus is no longer on whether the organisation acted reasonably by reference to practices or standards prevailing at the time.

Charities, not‑for‑profits and religious institutions have historically played a central role in education, care, pastoral support and community services, often relying on persons in roles other than as employees (for example, clergy, volunteers or contractors).  The High Court’s decision reflects contemporary expectations of institutional responsibility rather than looking to past norms and practices.

Key implications for historical abuse claims

1. Focus shifts away from historical standards

In claims founded on non‑delegable duty, liability is not assessed by reference to what was considered acceptable practice at the time.

While this limits reliance on ’standards of the day’ arguments, it also removes uncertainty about how historical conduct will be judged and allows organisations to focus on the available evidence rather than retrospective evaluations of past governance which have been particularly hard to put into evidence.

2. Employment status is less significant

The decision confirms that liability does not turn on whether the perpetrator was an employee, volunteer, religious worker or contractor.

For charities, not‑for‑profits and religious institutions, this simplifies the legal analysis and reduces the need for disputes about classification of employees in historical claims.

3. Clearer pathway to resolving claims

Once a non‑delegable duty is established, the legal issues in dispute are generally narrowed to:

• • whether the abuse occurred; and
  • the nature and extent of harm.

4. Ongoing importance of governance and insurance

While effective safeguarding systems do not operate as a defence to historical liability, they remain essential for:

• • meeting contemporary governance obligations and expectations;
  • supporting insurance arrangements; and
  • demonstrating institutional commitment to safety and accountability.

Organisations should continue to engage proactively with insurers, particularly in relation to historical policy coverage and contribution issues where multiple entities are involved. Of course, since the enactment of the Royal Commission’s proposed relevant reforms in this space, there is now a reverse onus of proof for institutions to demonstrate that they have in fact taken reasonable precautions to prevent child abuse.

Charities, not‑for‑profits and religious institutions may wish to:

• • review their approach to historical abuse claims in light of the clarified legal position;
  • ensure board‑level oversight of claims and related financial planning;
  • audit historical insurance coverage and record‑keeping;
  • reassess the value of contingent liabilities for liquidity purposes; and
  • consider whether existing claims processes support timely, compassionate and reasonable outcomes.

Conclusion

The High Court’s decision in AA underscores the enduring responsibility of institutions entrusted with the care of vulnerable people. The case significantly expands the scope for liability in care relationships, and so creates the need for review of actual and potential liabilities.  While it narrows certain liability defences in historical abuse claims, it also provides greater legal clarity, supporting more consistent decision‑making and resolution strategies for charities, not‑for‑profits and religious institutions.

[1] AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2