The exceptions are not relevant for present purposes. Nor was this provision in force when the present proceedings were commenced, in 2001.
19 Part 4 also included a new s 9E, which contains the following provision:
9E Nothing in this Part:
(a) makes the Crown vicariously liable for a tort committed by a police officer if it would not otherwise be vicariously liable for that tort … .
20 The effect of the new Part 4 of the Vicarious Liability Act, and in particular, s 9B(2), is to make the State solely liable for torts committed by police officers in the performance or purported performance of their functions. However, if, prior to the introduction of that provision, exemplary damages could not generally be obtained against the State, but only against the individual officer, the effect of that provision, so it was argued, was to extinguish any right to exemplary damages by extinguishing the right to bring proceedings against the individual tortfeasor who alone had been liable. As the Second Reading speech for that Bill indicates, the intention was to protect police officers: there is no suggestion that the Bill was intended to diminish the rights of citizens who may be the victims of conscious wrongdoing in contumelious disregard of their rights. Since there was no reason to suppose that police officers could not be liable for exemplary damages, prior to the introduction of s 9B, in circumstances where the Crown was vicariously liable pursuant to s 8(1), the Bill must have been introduced on the assumption that the Crown was liable for exemplary damages, and would remain so.
21 There remains for consideration the State's argument based on policy. The relevant policy identified by the State involved two limbs: namely, first, the basis upon which the Crown was said to be vicariously liable for the torts of police officers and, secondly, the justification more generally for the imposition of exemplary damages in the limited circumstances in which such an award is appropriate.
22 The position of employers generally, in relation to vicarious liability, may need to be distinguished in some respects from the position of the Crown with respect to police officers. Nevertheless, the comments made by the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [32]-[42] are instructive. As already noted, the joint judgment held, at [34], adopting the views of Fullagar in Darling Island Stevedoring, "that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy". As their Honours further noted:
"[41] In Bazley v Curry [1999] 2 SCR 534 at 552-555, the Supreme Court of Canada saw two fundamental or major concerns as underlying the imposition of vicarious liability. The first is the provision of a just and practical remedy for the harm suffered as a result of the wrongs committed in the course of the conduct of the defendant's enterprise. The second is the deterrence of future harm, by the incentive given to employers to reduce the risk of accident, even where there had been no negligence in the legal sense in the particular case giving rise to the claim.
[42] In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry (at 548), McLachlin J said of such cases that 'the employer's enterprise [has] created the risk that produced the tortious act' and the employer must bear responsibility for it. McLachlin J termed this risk 'enterprise risk' and said that 'where the employee's conduct is closely tied to a risk that the employer's enterprise has placed in the community, the employer may justly be held vicariously liable for the employee's wrong'."
23 This reasoning applies, perhaps with added force, in relation to the Crown and police officers. Thus, the provisions of the Vicarious Liability Act demonstrate an acceptance on the part of the Government that it is both just and practical that citizens who have been unlawfully harmed by police seeking to carry out their duties, should have a remedy against the State, as the representative of the community on whose behalf policing activities are undertaken. Further, there is logic in seeking to deter future harm by imposing on the State, which has responsibility for the appointment, training, promotion and direction of the Police Service, an incentive to take appropriate steps to avoid the risk of future tortious activity.
24 This last consideration involves acceptance that the function of tort liability is not merely to compensate the victims of tortious conduct, but also to deter potential tortfeasors. In that sense, the awarding of exemplary damages need not be seen as an anomalous addition to tort law, but may rather be seen as providing an augmented element of deterrence, in the circumstances where such damages are available. Thus, in Gray v Motor Accident Commission (1998) 196 CLR 1 at [11] the joint judgment of four members of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) commented on the view that there were apparent anomalies involved in the availability of exemplary damages, noting at [11]:
"As Windeyer J said in Uren [ v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 149-150]:
'Compensation is the dominant remedy if not the purpose of the law of torts today. But fault still has a place in many forms of wrongdoing. And the roots of tort and crime in the law of England are greatly intermingled. Some things that today are seen as anomalies have roots that go deep, too deep for them to be easily uprooted.'"