Non-delegable Duty

neilfoster

Strict liability for abuse committed by non-employees: the AA case

The High Court of Australia handed down a significant decision last week in  AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (11 Feb 2026). The decision expands the strict liability of churches and other organisations undertaking the care of children, by finding that an institution owes a “non-delegable duty” to such children, to ensure that no-one entrusted to care for them commits abuse. In reaching this decision, the court had to over-rule a previous decision in the Lepore case.

As Edelman J commented:

[341] The overruling of Lepore will have a significant effect upon the common law in this country, including upon proceedings concerning historic sexual abuse, such as this case. Any legal entity—including any unincorporated organisation like the Diocese that is required to be treated as a legal entity—which assumes responsibility to ensure that reasonable care is taken of another’s person or property (goods or land) will be liable if a third party intentionally causes injury to that other person or their property within the scope of the responsibility assumed.

I am presenting a paper at an academic conference outlining the decision, which is available for download here.

Torts Symposium 2026 Foster paper NDD AADownload
neilfoster

Church Liability for clergy child abuse

As in other parts of the Western world, the church has been in the spotlight over the last few years in Australia as the scope and impact of sexual abuse committed by clergy, and in some cases covered up by church leaders, has become more apparent. Here the Royal Commission into Institutional Responses to Child Sexual Abuse is doing what seems to be an excellent job in encouraging victims to come forward and report harm they have suffered in this way. It is painful for Christians and others who have supported community organisations like the YMCA to hear the stories of what has happened to vulnerable children who should have been cared for, but instead were in some cases exploited for sexual gratification. But it is vital for the truth to come out about these events, so that victims can feel that they are finally being heard, and where possible receive compensation for the harm they have suffered.

As well as teaching “Law and Religion” as an elective, I teach “Torts” to first year law students. Torts is about civil liability, “suing people for stuff” as I sometimes summarise it. The question of the liability of churches for the sexual abuse suffered by children at the hands of members of the clergy provides one area where two of my main academic interests co-incide. Recently I was invited to deliver a paper on the question of holding churches responsible for damages in this area, to a local law firm, Kelso’s, who are acting on behalf of a number of clients who have been harmed in this way. (The firm runs an excellent “unofficial” website connected with the Royal Commission.) The paper can be found here for those who are interested in exploring some of the legal issues.