New South Wales v Lepore

What happened?

Three appeals were heard together, all about sexual abuse of pupils by teachers at State schools.

In the first, a pupil at a New South Wales primary school alleged that his teacher had assaulted him in 1978, when he was seven. On his account the assaults happened in the context of supposed misbehaviour and corporal punishment: he was sent to a storeroom, told to remove his clothing, smacked, and then touched indecently ([7]). The teacher had pleaded guilty to a number of charges of common assault and resigned ([8]). The trial judge found that assaults had occurred but did not accept all of the pupil's evidence, and left the nature and extent of them unresolved ([9], [11]); he found no failure by the State to exercise proper care ([10]), and the case was never put on the basis of vicarious liability ([12]). A majority of the Court of Appeal (Mason P and Davies AJA, Heydon JA contra) nonetheless held the State liable on a non-delegable duty, Mason P putting its extent as an obligation "to ensuring that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally)" ([4]).

In the other two, girls aged between seven and ten alleged sexual assaults between 1963 and 1965 by the teacher at a one-teacher school in rural Queensland; no evidence had been taken, so the circumstances were not apparent ([13]). Each statement of claim alleged only a duty "to ensure that reasonable care was taken of [the appellant] whilst she was at the school", breached by the assaults, with no allegation of fault by the school authority at all ([14]). The Queensland Court of Appeal struck both out and declined to follow the New South Wales decision ([6], [15]).

So the Court had a conflict between two intermediate appellate courts, and one question squarely raised. Note its shape: the authority's own negligence was not in issue. Gleeson CJ deals with that at [2] — an authority may be negligent in employing a person, in failing to supervise staff, or in failing to respond to complaints — and says the concern here is "liability in the absence of such fault" ([3]).

What did the Court decide?

The two courts below could not both be right, and in 2003 it was the Queensland court that was.

In Lepore, the appeal was allowed in part and a new trial ordered, because the trial had miscarried on the facts. In Rich and Samin, the appeals were dismissed. Six judgments, and the disposition of each matter has to be read against the matter it disposes of — Gummow and Hayne JJ, for instance, would allow the Lepore appeal in part and order a new trial ([190]) while dismissing Rich and Samin ([271]).

On the question the appeals were brought to settle, the Court split four to two, with one judge standing aside. McHugh J held that the teacher's assault "constituted a breach of the employer's non-delegable duty to take reasonable care for the safety of the plaintiff" ([163]), and Gaudron J would have recognised a duty of that kind too. Kirby J agreed the pleaded claim was "legally unavailable" ([336]) but reserved his position on the principle behind it ([293]) — so he is with the majority on the result and not on the reasoning.

Why does this case matter?

Because this was a majority holding, binding until the High Court itself removed it, and what persuaded the Court to remove it is set out in its own reasons. Be careful with that distinction: a four-judge majority states a rule, and divided reasoning does not mean there was no rule. It meant this rule was a candidate for re-opening. The Court found that the decision did not rest on a principle "carefully worked out in a significant succession of cases", that "there were significant differences in the reasons of the majority", and that the exclusion "reflected judicial policy choices which are unable to be sustained consistently with principle, have not led to any useful result but rather have created incoherence in the common law, and have not been independently acted upon". So reading the disagreement here is how you understand why the line did not hold. A student who can say which four judges drew it, on what reasoning, and what the two who refused would have done instead, has the 2026 decision as the end of an argument rather than a bolt from nowhere.

The second reason is the half of the case nobody overturned. The judges who rejected the pleaded claim did not agree on the alternative. Gleeson CJ would ask whether "the nature of the teacher's responsibilities, and of the relationship with pupils created by those responsibilities" makes the misconduct fairly within the course of employment, and thought that where the relationship is "invested with a high degree of power and intimacy" the use of that power may supply a sufficient connection ([74]). Gaudron J reached for estoppel ([130]). Gummow and Hayne JJ asked what the employee "was actually employed to do and held out as being employed to do" ([232]) and answered it on the facts: "[h]e had no authority to assault the appellants" ([243]). Kirby J would apply the close-connection test of Lister v Hesley Hall ([337]). Three routes, no majority for any of them, and that is still where vicarious liability for institutional abuse begins — Prince Alfred College is where it went next.

Exam and application relevance

Date the question before you answer it. For a claim decided now, the 2026 position governs and this case is the history of it; for an exam question that asks what Lepore decided, the answer is the four-judge limit and the reasoning for it. Saying which you are doing costs one sentence and is the difference between a good answer and a wrong one.

Keep the two doctrines apart either way. A non-delegable duty asks whether the defendant failed to ensure that reasonable care was taken. Vicarious liability asks whether the defendant answers for someone else's wrong. Running them together is the error the New South Wales Court of Appeal made, and it is the commonest one in this area.

On current law, work the non-delegable duty first and ask what the institution undertook: whether it had the care, supervision or control of the plaintiff, or was so placed as to assume a particular responsibility for their safety. Then ask what the delegate did. An intentional criminal act by the delegate is now capable of breaching the duty — but the duty is still not absolute liability.

Then treat damages as a separate statutory question, and do not assume the answer. AA's damages were cut from $636,480 to $335,960 because the Civil Liability Act 2002 (NSW) applied to the Diocese's liability "in accordance with their terms", the Court resolving that s 3B(1)(a) was not engaged ([136]). That is a holding about one Act and one exclusion. Whether a civil liability Act reaches the claim in front of you is a question about that Act's own coverage, its exclusions and its transitional provisions, and the answer differs between jurisdictions.

If you reach vicarious liability, establish the relationship first: in Bird v DP the High Court held that employment is required and that "akin to employment" is not enough. And check the statute, because Parliaments have legislated in this field since the institutional abuse inquiries and the schemes are not uniform. The common law stated above does not tell you what the Act of your jurisdiction says.

Check your understanding

A pupil is assaulted by a teacher. The school took reasonable care in appointing and supervising him, and nothing about the assault was foreseeable to anyone at the school. On the reasoning of the four judges in the majority here, why did that claim fail — and which single step in their reasoning did the Court reject in 2026?