Non-Relegable Duty: Understanding the High Court AA Decision

CPD: 1 point (PS, SL)
Format: In-person (Hobart) and livestreamed 
Recorded: With presenter consent
Time: 1-2pm, Wednesday 5 August

Outline
In AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, the High Court overturned the now two-decade old decision of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4. However, rather than expanding the common law, those in the majority went to some length to stress they were merely removing a fetter that Lepore unduly placed on the common law doctrine of the non-delegable duty of care. In overturning Lepore, the High Court addressed the perceived gap in institutional liability, left in the wake of Bird v DP (2024) 98 ALJR 1349; [2024] HCA 41. AA now clearly articulates an alternative avenue available for establishing institutional liability for harm caused by third parties where no employment relationship exists.

Key Takeaways

• There can now be no doubt that it is possible for institutions to be held liable for a breach of a non-delegable common law duty of care, even where the relevant offending conduct involves an intentional criminal act.
• For a non-delegable duty to exist, the putative duty-holder must have undertaken the care, supervision or control of the person or property of another, or to have assumed responsibility for their or its safety.
• The scope of a non-delegable duty is to be inferred objectively from all the circumstances of a case and as such, is highly factually dependent.
• Given the unique factors that led to the Court identifying the requisite level of control in AA, care should be taken before attempting to extend the Court’s reasoning to contexts outside the specific facts of this case.

Presenter

Tristan Baker - Having practised at several of Australia’s leading commercial firms and one of the nation’s largest banks, Tristan has experience advising on a wide range of civil and commercial disputes conducted in courts of various levels across Australia. This experience includes class actions, civil litigation, Royal Commissions, and regulatory investigations. Prior to commencing practice, Tristan served as Associate to Chief Judge Pascoe of the then Federal Circuit Court of Australia. As the current serving Church Advocate to the Anglican Diocese of Tasmania, Tristan also has a keen interest in matters relating to the law of voluntary associations and institutional liability.

in-person (at the Society, 28 Murray Street) and livestreamed.

28 Murray Street, Hobart Tas 7000

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1-2pm Wed 5 August In-Person Hobart - 1-2pm Wed 5 August Livestreamed

1-2pm, Wednesday 5 August

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