If you were sexually abused as a child while in the care of a school, church, children’s home, youth organisation, or the State, the law can hold that institution responsible. This page explains how institutional liability works in Australia, how it has changed in recent years, and what has to be proved.
The most recent change came in 2026, when the High Court decided AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2. Koffels represented AA.
This information is general. Whether an institution is liable depends on the facts of each case.
The ways an institution can be liable
| Basis | What it means | Key point |
|---|---|---|
| Negligence | The institution failed to take reasonable care to protect the child, for example by ignoring warning signs or failing to supervise | Focuses on what the institution knew, or should have known, and did |
| Non-delegable duty | The institution had a duty to ensure care was taken, which it could not hand off to the individual | Since AA (2026), can be breached by intentional abuse, such as sexual abuse |
| Vicarious liability | The institution is liable for wrongs committed by its employee in the course of employment | Since Bird v DP (2024), limited to employment at common law. Some states have since extended it by legislation |
| Statutory duty | Legislation in several states requires organisations to take reasonable precautions against child abuse | Generally applies to more recent abuse |
How the law has changed
Time limits removed
Every Australian state and territory has removed the time limit for civil claims arising from child sexual abuse, and New South Wales and Queensland have also removed it for serious physical abuse. In most cases, a claim is not barred simply because decades have passed. Individual circumstances still matter. See our guide to limitation periods for historical abuse claims.
An institution can still ask the court to stop a claim permanently on the ground that a fair trial is no longer possible. In GLJ v Lismore [2023] HCA 32, the High Court made clear that this is exceptional, and that the death of the alleged abuser or the loss of evidence does not, on its own, justify it.
Non-delegable duty and the AA decision
For more than 20 years, New South Wales v Lepore (2003) was treated as preventing a claim for breach of a non-delegable duty where the harm was an intentional criminal act, such as sexual abuse. In AA, the High Court overruled Lepore on that point.
The Court held the Diocese of Maitland-Newcastle liable for breach of a non-delegable duty to a child who came under a priest’s care, supervision, or control through the priest’s role. It rejected arguments that the duty was limited by parish boundaries, by whether the child was Catholic, or by whether the abuse happened on church premises. If your claim was previously assessed as limited by Lepore, this decision may change your position.
Vicarious liability narrowed by Bird v DP
In Bird v DP [2024] HCA 41, the High Court held that vicarious liability only applies to employees, not to people in relationships “akin to employment”, such as many priests. That made claims against some religious institutions harder.
Two responses have followed. Some jurisdictions, including Victoria and the ACT, have passed laws extending vicarious liability for child abuse to relationships akin to employment, with retrospective effect, and other states are considering similar laws. And AA confirmed a separate route: a non-delegable duty does not depend on employment at all.
Suing unincorporated organisations
Some institutions, including some churches, were historically difficult to sue because they had no legal entity that could be held responsible, a problem known as the “Ellis defence”. New South Wales and other states have since changed the law so that survivors can identify a proper defendant with the assets to meet a claim.
What has to be proved
A civil claim is decided on the balance of probabilities, which is a lower standard than the criminal standard of proof beyond reasonable doubt. It does not require a criminal conviction, or any police involvement.
Institutional liability is often established through:
- Ignored warning signs: keeping staff, clergy, or volunteers in contact with children after complaints or concerning behaviour
- Moving known offenders: transferring them between schools, parishes, or homes without reporting them
- Poor supervision: environments without proper oversight, child-safe policies, or ways to report
- Concealment: suppressing complaints or internal investigations
- Breach of a non-delegable duty: failing to ensure a child in the institution’s care was protected
Evidence can include personnel files, transfer records, disciplinary records, police records, and complaints made at the time, as well as your own account and witness statements.
Who the claim is against
A civil claim is usually brought against the institution, not only the individual who committed the abuse. Where the person who abused you has died, or the institution has closed, merged, or restructured, a claim may still be brought against a successor body, a corporate trustee, an insurer, or a government department. Identifying the right defendant is often one of the first steps in a historical claim.
Criminal proceedings and civil claims
- A criminal prosecution is brought by police and the prosecutor to establish guilt beyond reasonable doubt. Survivors do not control prosecution decisions.
- A civil claim is brought by the survivor to recover compensation from the institution. The survivor directs the claim and decides whether to accept a settlement.
You do not need to report the abuse to police, or take part in a criminal trial, to bring a civil claim.
Civil claim or the National Redress Scheme?
A civil claim is assessed on the actual harm the abuse has done to your life and has no fixed maximum. The National Redress Scheme caps payments at $150,000, a figure rarely reached, and accepting a payment permanently extinguishes your right to a civil claim against the institution. Applications close on 30 June 2027. For a full comparison, see our guide to institutional abuse compensation.
Frequently asked questions
What did the High Court decide in AA v Diocese of Maitland-Newcastle?
In 2026, the High Court held the Diocese liable for breach of a non-delegable duty to a child who came under a priest’s care, supervision, or control through the priest’s role. It overruled the earlier Lepore decision to the extent that it excluded intentional criminal acts, such as sexual abuse, from a non-delegable duty.
Can an institution be liable if the abuser was not its employee?
Possibly, yes. Since Bird v DP (2024), common-law vicarious liability is limited to employees, although some states, including Victoria and the ACT, have extended it by legislation. An institution can also be liable in negligence, or for breach of a non-delegable duty, which does not depend on employment. Whether either applies depends on the facts.
Do I need to report the abuse to police before claiming compensation?
No. A civil claim is separate from the criminal system. You do not need to make a police statement or obtain a criminal conviction to bring a claim against an institution.
Can I claim if the abuse happened 20, 30, or 40 years ago?
In most cases, yes. Every Australian state and territory has removed the time limit for civil claims arising from child sexual abuse. A court can stop a claim only in exceptional cases where a fair trial is no longer possible.
Can I claim if the person who abused me has died?
You may be able to. A civil claim is usually brought against the institution, not only the individual, and the High Court has held that the death of the alleged abuser does not, on its own, mean a fair trial is impossible.
Can I bring a civil claim after accepting a National Redress Scheme payment?
Generally, no. Accepting a Scheme payment means signing a release that permanently extinguishes your right to a civil claim against that institution. Get independent legal advice before you accept any offer.
How do legal costs work?
Koffels acts on a no-win, no-fee basis for institutional abuse claims we assess as viable. You only pay our professional fees if your claim succeeds.
Talk to us about your claim
If you would like advice on whether an institution may be liable for what happened to you, our institutional child sexual abuse lawyers offer a free, confidential first conversation. Call +612 9283 5599 or use the form below.
