64BLiability for wrongful acts of members

64B Liability for wrongful acts of members

(1) The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties as such a member or a protective service officer in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member or the protective service officer. (2) In a claim by the Commonwealth for damages in respect of a tort, an act or omission of a member or a protective service officer in the performance or purported performance of his or her duties as a member or a protective service officer may be relied on as constituting contributory negligence by the Commonwealth if the act or omission could have been so relied on if it had been done by an employee of the Commonwealth in the course of his or her employment. (3) The liability of the Commonwealth under subsection (1) does not extend to a liability to pay damages in the nature of punitive damages. (4) Without limiting the application of subsection (1), the Commonwealth may: (a) where proceedings have been instituted against a member or a protective service officer with respect to a tort committed by the member or the protective service officer in the performance or purported performance of his or her duties as a member or a protective service officer—as joint tortfeasor with the member or the protective service officer (whether or not the Commonwealth is a party to the proceedings): (i) pay to the plaintiff, on behalf of the member or the protective service officer, the whole or a part of any damages or costs (not being damages in the nature of punitive damages) that the member or the protective service officer has been ordered by the Court in the proceedings to pay to the plaintiff; and (ii) pay to the member or the protective service officer any costs incurred by him or her in the proceedings and not recovered from the plaintiff; or (b) where a member or a protective service officer has entered into a settlement of a claim by another person that has, or might have, given rise to proceedings of a kind referred to in paragraph (a)—as joint tortfeasor with the member or the protective service officer (whether or not the Commonwealth is a party to the settlement), pay to that other person the whole or a part of the amount that, under the terms of the settlement, the member or the protective service officer is liable to pay to that other person. (5) For the purposes of this section: (a) an act or omission of a member in the capacity of a constable shall be deemed to have been done in the performance of his or her duties as a member; and (b) a reference to a plaintiff includes a reference to a defendant counter‑claiming; and (c) a reference to a member includes a reference to a special member; and (d) a reference to a protective service officer includes a reference to a special protective service officer.