The Duty of Care in relation to Clerical Sexual Abuse in Australian Common Law after the High Court’s Overruling of 11 February 2026

Abstract

This paper undertakes a critical examination of the Australian High Court’s judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland Newcastle. In that decision, the Court departed from the majority approach in Lepore and affirmed that a non-delegable duty of care may, in principle, extend to intentional criminal acts. The Court concluded that the defendant Diocese owed a duty to ensure that reasonable care was taken to prevent foreseeable - including intentionally inflicted - injuries to a child who was under the care, supervision or control of one of its priests.