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Australian organisations may now be accountable for deliberate acts of criminality involving childhood sexual abuse committed by their employees, subcontractors or volunteers, following a High Court decision that was handed down yesterday.
Previously, the law’s “vicarious liability” principles only covered employees and did not include acts of deliberate criminality by persons who were not classed as employees.
But in a decision called “AA v”, five of seven High Court judges overturned the law under “non-delegable duty” principles.
This means that liability may arise even when the organisation or institution itself is not negligent.
Three liability scenarios
Bill Madden of Carroll & O’Dea Lawyers, who has more than thirty years’ experience in civil liability litigation, says organisations can be liable on three different bases.
“The first is where the defendant (the organisation) has done something wrong themselves – often called direct negligence.
“The second is where they have an employee who’s been negligent, in which case, the organisation can be vicariously liable for them.
“And there is another special category, whereby an organisation is accountable for the actions of someone it delegates a task to – someone who is not an employee,” he said, ahead of the Medico Legal Conference.
Various contexts
While the AA decision concerned a religious organisation, Mr Madden says that non-delegable duties have broader applications, including hospitals.
“In a hospital setting, it could be an employee, such as a nurse, sexually assaulting a patient. Or it could be someone who is not an employee – a subcontractor or a volunteer – who sexually assaults a patient.
“A more complex scenario is where a patient sexually assaults another patient.”
Mr Madden says the AA decision warrants a rethink of the potential liability hospitals face.
“It is a significant turning point in the law,” he said.
The type of scenario matters
However, Mr Madden says that the case sits at the “pointy end of a complicated law” and that the type of scenario will make a difference in each ruling.
“Each organisation has a unique relationship with its people,” he said. “Broadly, a school takes responsibility for its students, a hospital takes responsibility for its patients – these are the two settings where non delegable duties are most often argued.”
But what is less clear cut is the sort of steps those organisations can take to protect themselves legally.
“In a large public hospital with lots of resources, you’d expect to find detailed policies and security guards, but in smaller private hospital, that might be different. Different again in a medical centre, where you only have two doctors and a receptionist.
“Even if steps are taken, it may be that the organisation remains legally liable if the ‘delegate’ has been negligent or intentionally acted wrong. In this case, the organisation may have to pay compensation for the injury or loss suffered by a victim.”
Navigating the legal landscape
Given the complexities of the law, Mr Madden says it is crucial that organisations understand what is expected of them and take protective measures, if possible.
Giving a more thorough account of the 200+ page High Court decision, Mr Madden, along with with Professor Cockburn and Ms Brell, will present at the upcoming Medico Legal Conference, hosted by Informa at the Swissotel Sydney.
This year’s event will be held 17-18 March 2026.
Learn more and register your tickets here.
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