High Court Overturns Lepore: Institutional Liability Significantly Expanded

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

Overturning: New South Wales v Lepore

On 11 February 2026, the High Court of Australia delivered one of the most significant institutional liability decisions in over two decades. In AA v Trustees, the Court overturned the key aspect of Lepore that had shielded institutions from liability under a non-delegable duty of care for intentional criminal acts committed by those acting within their authority structures.

The decision materially alters how historic abuse claims against institutions will be analysed and litigated.

The Position Under Lepore

Since 2003, Lepore had been understood to exclude institutional liability under a non-delegable duty where the harm resulted from deliberate criminal conduct by a delegate, such as a teacher or clergy member.

Although plaintiffs could still pursue claims in negligence or vicarious liability, the non-delegable duty pathway was effectively closed where the conduct was characterised as intentional. In practice, this provided institutional defendants with a powerful threshold argument: intentional abuse was said to fall outside the scope of any protective duty.

That argument is no longer available.

The High Court’s Recalibration

In AA v Trustees, the High Court rejected the categorical exclusion recognised in Lepore.

The majority held that where an institution has assumed responsibility for the care, supervision or control of a vulnerable person, a non-delegable duty of care may arise — and that duty is not negated merely because the harm results from intentional criminal wrongdoing.

The proper inquiry is not whether the act was intentional or negligent. Rather, it concerns:

• The existence of a special relationship marked by authority, control and vulnerability;
• The assumption of responsibility by the institution;
• The foreseeability of the relevant risk within that institutional framework;
• Whether the institution ensured reasonable care against that risk.

This represents a doctrinal shift from act-based characterisation to relationship-based responsibility.

The Facts

The plaintiff, AA, was sexually assaulted in 1969 by a Catholic priest while under the priest’s spiritual supervision.

The Diocese relied on Lepore to argue it could not be directly liable under a non-delegable duty because the abuse was intentional criminal conduct.

The High Court rejected that submission. It held that the Diocese had assumed responsibility for the child within a relationship of authority and trust. Where such a relationship exists, and the risk of abuse is reasonably foreseeable within the institutional structure, the institution may be liable for failing to ensure reasonable protection.

Not Strict Liability

The decision does not impose automatic liability on institutions.

A claimant must still establish:

1. A qualifying relationship giving rise to a non-delegable duty;
2. Foreseeability of the risk of harm;
3. Breach of the obligation to ensure reasonable care.

However, institutions can no longer defeat claims simply by asserting that intentional wrongdoing falls outside the scope of duty.

Practical Consequences for Claimants

For survivors of institutional abuse, the implications are substantial.

For more than 20 years, institutional defendants relied on Lepore to argue that they were not legally responsible for deliberate abuse committed by individuals they placed in positions of authority. That structural defence has now been dismantled.

The litigation focus will now shift to:

• The scope of responsibility assumed by the institution;
• The degree of control exercised over the claimant;
• What the institution knew or ought to have known about systemic risk;
• Whether adequate safeguards were ensured.

The characterisation of conduct as “intentional” will no longer resolve the issue.

Claims previously assessed as unviable because of Lepore may now warrant reconsideration. Each matter remains fact-specific, and evidentiary foundations remain critical. However, the legal landscape has shifted in a way that removes a longstanding doctrinal obstacle for claimants.

Conclusion

The High Court’s decision in AA v Trustees significantly reshapes the law governing institutional responsibility for historic abuse. By removing the categorical limitation recognised in Lepore, the Court has restored the central focus on assumed responsibility, vulnerability and foreseeable institutional risk.

If you are considering a claim arising from historic institutional abuse, this decision may affect how your matter is assessed. We can provide confidential advice regarding the implications of this development and the options available to you.