AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
Territory and Victoria have either passed legislation or have draft legislation before them that will expand the doctrine of vicarious liability to include relation- ships akin to employment. New South Wales has had in place legislation to this effect since 2018. It can be expected that other states and territories may follow suit. Care damages In September 2025, the High Court of Australia was called upon to consider whether a plaintiff was entitled to recover the costs of being cared for in his home, as opposed to being cared for at a facility at a consider- ably lesser cost. In finding in the plaintiff’s favour, the High Court noted the following relevant factors: • before his accident (which left him catastrophically injured), the plaintiff had lived at home; • continuing to live at home provided the company of his dog and better access to his family, particu- larly his brother and son; • if not for the defendant’s negligence, the plaintiff would have continued to reside at home; and • as the evidence established, there would be real and physical, not merely “slight or speculative”, improvements in the plaintiff’s quality of life and mental health by living at home, rather than at a facility.
These factors led to the High Court finding that the plaintiff’s choice to live at home was reasonable, and he was entitled to recover the cost of receiving care at home. Whilst the High Court affirmed that each matter would turn on its own facts, it is plainly no longer enough for a court to commence its consideration by casting the plaintiff’s choice to one side because there is a cheaper type of care arrangement available. Defend- ants and insurers are likely to see resulting inflation in damages claimed and awarded for care in cata- strophic injury cases. The coming year – non-delegable duty In the coming year, defendants and their insurers will seek clarification of the law surrounding non-delega- ble duty (a personal/direct duty owed to ensure that reasonable care is taken). The High Court recently heard an appeal in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcas - tle , which may change the current position (identified in Lepore) that a non-delegable duty does not extend to the prevention of intentional criminal conduct by a third party.
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