New Rights For Victim-Survivors In Victoria

On 24 February 2026, the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Bill 2025 commenced and amended the Wrongs Act 1958 in relation to vicarious liability and the Limitation of Actions Act 1958 in relation to setting aside certain settlements or judgments.

The Bill strengthens the ability of child abuse survivors to sue institutions for abuse committed within those institutions.

Bird v DP

In 2024, the High Court decision of Bird v DP (a pseudonym) [2024] HCA 41 (‘Bird’) confirmed that vicarious liability did not extend beyond relationships of employment to relationships “akin to employment” (i.e. volunteers).

The primary effect of the decision was that institutions could only be held liable for abuse by employees in circumstances where the Plaintiff could prove the employer was vicariously liable for the abuse, or if the institution breached the duty of care owed in circumstances where it knew or ought to have known the employee was a risk to children.

Main changes

The Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2025 effectively overturns the impact of Bird and confirms the following:

1. Institutions can now be held legally responsible not only for employees, but also for individuals in roles “akin to employment” (e.g. volunteers).
2. Retrospective effect: The law applies to past cases, allowing some survivors to reopen or set aside previous settlements or judgments affected by the earlier legal position.

Akin to employment

Under the Bill, an institution will be held vicariously liable for an individual akin to an employee (i.e. “non-employee”) where:

1. The institution supplied the individual with the occasion for the abuse; and
2. The individual takes advantage of the occasion to abuse the child.

Under the common law, it is not sufficient that a role provided a ‘mere opportunity’ for the abuse to take place; it needs to have provided the wrongdoer with the very occasion for the abuse.

In considering whether the institution supplied the individual with the occasion for the abuse the Courts will need to consider whether the institution placed that individual in a position or role in which that employee or individual has:

1. authority, power or control over the child; or
2. the trust of the child; or
3. the ability to achieve intimacy with the child.

The Bill also clarifies that an independent contractor is not an individual akin to an employee. The second reading speech of Harriet Shing read on 4 December 2025 explained that: “As independent contractors do not resemble employees, they are explicitly excluded from the akin to employee test.”

Enabling affected victim-survivors to set aside judgments and settlements

The Act amends the Limitation of Actions Act 1958 to allow affected victim-survivors whose vicarious liability claims were resolved in the period between 13 November 2024 (the date of the High Court’s decision in Bird v DP) and the commencement of the reforms on 26 February 2026, to apply to the court to have a judgment or settlement set aside and commence another action.

Courts in Victoria can now set aside judgments or settlements where it considers this just and reasonable.

Conclusion

The Bill broadens institutional responsibility for child abuse, rectifies the legal irregularity exposed by Bird, and improves access to justice for historical survivors of abuse. The reform also ensures that victim-survivors whose claims were weakened or rendered unviable, following Bird, can benefit from the reforms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.