Law Reform (Vicarious Liability) Act 1983

The Act has a tripartite impact: on private employers, on the Crown (including its various agencies), and on police officers and claimants against them.

Private masters and servants fall under s 7. Any employer whose employee performs a statutory or common-law function independently of the employment contract (for example, a registered medical practitioner employed by a hospital who owes independent duties under health legislation, or a licensed transport operator) may find themselves vicariously liable even where the function is not strictly within the scope of employment as traditionally understood. The broad interpretation of "in the course of the servant’s service" or "incident of the servant’s service" in s 7(a) captures a wide class of public-sector and regulated professionals.

The Crown in right of New South Wales is directly affected in two capacities. First, as the ultimate employer of persons "in the service of the Crown" (expressly excluding servants – see s 5(1) and s 6), it is exposed to liability under s 8 for the acts of a broad range of statutory office-holders, board members, and public servants performing independent statutory functions. Second, and most significantly since 2003, the Crown is the mandatory defendant in virtually all police tort claims. Because a police officer is deemed "a person in the service of the Crown and not a servant of the Crown" (s 6), the procedural funnel created by Part 4 channels almost all civil claims arising from police conduct through the State.

Police officers themselves are relieved of personal exposure in the vast majority of cases. Section 9B(2) prohibits claims against them except in the narrow circumstances preserved by s 9E. However, officers remain potentially liable to the Crown for contribution or indemnity (s 9E(b)), and may still be joined where the Crown denies liability. The definition in s 9 extends the Part to torts committed "whether or not acting in a personal or official capacity", provided the officer was a police officer at the time.

Claimants are affected by the procedural straitjacket. Litigants cannot simply sue an individual officer; they must plead against the Crown and can join the officer only after a denial of liability. The mandatory early determination under s 9C and the strike-out rules in s 9D can result in summary termination of claims against one or other party before a full hearing on the merits. The two-month limitation extension in s 9B(4) provides some procedural relief but is tightly confined.

Courts and tribunals (defined broadly in s 5(1)) are required to manage proceedings in a particular sequence, making an "initial determination" on vicarious liability at the earliest practicable moment. Legal practitioners advising any of the above classes must master the interaction between the Act, the Civil Procedure Act 2005, the Limitation Act 1969, and the common law of vicarious liability.

The Act creates no new primary duties of care; it is concerned solely with the secondary liability that arises once a tort is established. Nevertheless, it confers important rights and imposes corresponding burdens.

Rights of claimants include the statutory right to proceed directly against the Crown in police tort claims (s 9B(2)) and the right to join the individual officer where the Crown denies liability (s 9B(3)). Claimants also benefit from the disregard of statutory exemptions when vicarious liability is assessed (s 10(2)), which prevents the Crown from sheltering behind immunities granted to the individual officer. The two-month limitation grace period in s 9B(4) is a significant procedural right that overrides the ordinary operation of the Limitation Act 1969.

The Crown enjoys the right to an early judicial determination of its vicarious liability (s 9C) and the right to have claims against it or the officer struck out once that determination is made (s 9D). It retains its common-law rights to seek contribution or indemnity from the officer (s 9E(b)) and to join the officer as a cross-defendant.

Police officers gain a statutory shield against personal liability in most circumstances. The prohibition on claims against them (s 9B(2)) and the mandatory strike-out where the Crown accepts liability (s 9D(1)) represent a significant protection, although the savings in s 9E(f) preserve personal liability for torts committed outside the s 8(1) circumstances.

Masters and servants outside the Crown context obtain the expanded vicarious-liability rule in s 7, which removes the former common-law distinction between acts done in the course of employment and acts done in performance of an independent statutory function. The definition of "function" in s 5(2) expressly includes powers, authorities, duties, and failures to exercise them, thereby broadening the scope of conduct that can trigger liability.

All parties are subject to the overarching obligation to plead and argue vicarious-liability questions at the threshold stage in police cases. The Act’s supremacy clause in s 9F ("have effect despite any other Act or law") ensures that these procedural duties prevail over inconsistent rules.

The Act contains no criminal penalties; it is purely civil. Enforcement occurs through the ordinary machinery of tort litigation, but with enhanced judicial management powers.

The most significant enforcement mechanism is the mandatory strike-out or dismissal required by s 9D. Once the court has made an initial determination under s 9C, or the Crown has conceded liability, the court "must make such orders as it considers appropriate" to strike out or dismiss the claim against the inappropriate party. This is not a discretionary case-management power but a statutory command, breach of which would constitute jurisdictional error.

Costs consequences flow indirectly. A claimant who persists in suing an officer after the Crown has accepted liability risks an adverse costs order on the struck-out claim. Conversely, the Crown that improperly denies liability may face costs on an application to join the officer and on any subsequent contribution proceedings.

The Act interacts with the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules. Practitioners should note that the power to amend originating process without filing fresh proceedings (s 9B(4)(a)–(b)) is supported by the court’s general powers but is given statutory force and a specific limitation extension. Failure to comply with the two-month window for amendment would leave the claimant exposed to a limitation defence.

Section 9F’s supremacy provision ensures that the Part 4 regime cannot be circumvented by reliance on other statutes or the common law. The only express carve-out is the continued operation of the Limitation Act 1969 except to the extent modified by s 9B(4).

The Act is expressly stated to operate "notwithstanding any law to the contrary" (ss 7 and 8) and, in the case of Part 4, "despite any other Act or law (whether written or unwritten)" (s 9F). This gives it paramountcy over inconsistent common-law rules of vicarious liability and over other statutes.

Its most important interaction is with the Limitation Act 1969. Section 9F preserves that Act’s operation except for the two-month extension granted by s 9B(4) when amending to join a police officer after a Crown denial. Section 9G also contains transitional rules that allow Part 4 to apply to pre-commencement torts in pending proceedings only if no hearing on the merits has begun.

The Act sits alongside the Crown Proceedings Act 1988 (NSW), which provides the procedural vehicle for suing the Crown. Because the Law Reform (Vicarious Liability) Act deems police officers to be persons in the service of the Crown (s 6), claims routed through s 9B are brought under the Crown Proceedings Act nomenclature.

Common-law vicarious-liability principles from cases such as New South Wales v Lepore (2003) 212 CLR 511 continue to inform the content of "course of service" and "incidental to carrying on any business" tests in ss 7 and 8, but the statute has superseded the former distinction between servant and independent contractor in the independent-function context.

The Police Act 1990 (NSW) is also relevant. While that Act governs the discipline and powers of police, the Law Reform (Vicarious Liability) Act determines civil liability for torts committed in the exercise of those powers. The two statutes must be read together when assessing whether a particular police function is an "independent function" within the s 5(1) definition.

Section 10’s treatment of statutory exemptions interacts with every other Act that grants immunities to public officials. Those immunities are disregarded for the purpose of fixing the Crown with vicarious liability, but remain available to shield the individual from personal suit in the limited circumstances where personal suit is still possible.

Although the provided text reflects the Act as amended, the most significant changes occurred in 2003 via the Law Reform (Vicarious Liability) Amendment Act 2003 (No 74). That Act inserted the new Parts 2, 3 and 4 (with consequential renumbering and heading insertions), introduced the comprehensive police-tort-claim regime in ss 9–9G, and expanded the definitions in s 5.

The impetus for the 2003 reforms was a series of high-profile police misconduct cases and the perceived inefficiency of claimants suing individual officers who were often judgment-proof while the State defended on the basis that the officer was not acting in the course of employment. The legislature wished to channel liability to the State, reduce the personal financial risk to officers, and force early determination of the vicarious-liability question so that litigation resources were not wasted on dual defendants.

A further amendment in 2013 (No 56, Sch 3.3) made minor adjustments to the definition section. Earlier, the Police Service (Amendment) Act 1990 (No 48) had refined the status of police officers for the purposes of the Act.

The 2003 changes transformed what was a relatively concise substantive-liability statute into a hybrid substantive-procedural code. The policy rationale was to provide certainty for both claimants and the State, to protect individual officers from personal bankruptcy arising from performance of their duties, and to ensure that the State, which ultimately controls police training, equipment and procedures, bears the financial consequences of systemic failings.

No major amendments have occurred since 2013, but the Act continues to be cited in cases involving police shootings, wrongful arrests, and institutional child-sex-abuse claims where vicarious liability of the State is contested.

The leading authority on the pre-2003 version of the Act remains Enever v The King (1906) 3 CLR 969 (though that case predates the statute) and the later decision in New South Wales v Ibbett (2006) 229 CLR 638, which considered the interaction between the Act and exemplary damages. The High Court in Ibbett confirmed that the statutory vicarious liability imposed by s 8 does not automatically extend to exemplary damages; separate principles apply.

Post-2003 litigation has centred on the procedural provisions. In State of New South Wales v Ball [2012] NSWCA 322 the Court of Appeal examined the timing of the s 9C "initial determination" and held that it must occur as soon as reasonably practicable even if some factual overlap with the merits exists. The decision emphasised that the statutory command is not lightly displaced by the impracticability exception in s 9C(b).

Controversy has arisen over the breadth of "police tort claim". In several District Court decisions (unreported but widely circulated among practitioners), claimants have attempted to characterise purely personal assaults by off-duty officers as falling outside s 9B(1). The courts have generally applied the broad language of s 9 ("whether or not acting in a personal or official capacity") but still require a nexus to the performance or purported performance of police functions.

The interaction with the Civil Liability Act 2002 (NSW) has produced debate. Because the Law Reform (Vicarious Liability) Act is expressed to operate despite any other law, it appears to prevail over the proportionate-liability regime in Part 4 of the Civil Liability Act where police tort claims are concerned, although this has not been definitively settled by an appellate court.

Another live controversy concerns the retrospective application of Part 4 under s 9G. Defendants have argued that the procedural changes unfairly prejudice them in long-running proceedings, but the statutory preconditions (proceedings pending and no hearing on the merits commenced) have been strictly enforced.

Academic and practitioner commentary has criticised the mandatory strike-out provisions as potentially forcing claimants to run two sets of proceedings where the Crown’s concession is belated or conditional. The two-month limitation window in s 9B(4) has been described as "generous but tightly gated".

Most practitioners assume that once the Crown concedes vicarious liability the individual officer is automatically removed from the proceedings. Section 9D(1) does require strike-out, but only "such orders as [the court] considers appropriate". In complex multi-defendant litigation involving joint tortfeasors who are not police, courts have occasionally kept the officer as a nominal party for evidentiary purposes, a nuance easily missed.

The definition of "independent function" in s 5(1) is broader than many realise. It captures not only obvious statutory duties but any function "conferred or imposed … independently of the will of the servant’s master". This has been used successfully in cases involving coronial officers, registered surveyors and even certain local-government inspectors. Conversely, the exclusion of "servant of the Crown" from the definition of "person in the service of the Crown" is a trap; many public employees are technically servants and fall under different common-law rules unless s 7 applies directly.

Section 9E(f) is frequently overlooked. It preserves the right to sue a police officer personally for torts committed "otherwise than in the circumstances referred to in section 8(1)". In practice this means that if the tort is wholly unconnected to the officer’s service or the Crown’s activities, personal liability remains live. Drafting pleadings that carefully plead the alternative is critical.

The interaction between s 10 and specific immunities (for example, under the Mental Health Act 2007 or the Surveillance Devices Act 2007) is another gotcha. While s 10(2) requires the exemption to be disregarded for vicarious-liability purposes, the individual officer may still plead the immunity in any residual personal claim. Claimants who fail to appreciate this duality can find their judgment against the Crown reduced while the officer escapes personal liability.

Finally, the "initial determination" under s 9C is not a final determination. It is made on the assumption that the tort has been committed ("if it were established that the tort was committed"). Parties sometimes treat the s 9C ruling as dispositive of the whole case, only to discover that the court remains free to find at trial that no tort occurred at all. This two-stage analytical requirement is counter-intuitive and has led to unnecessary appeals.

Compliance for the Crown requires robust early assessment of vicarious-liability issues. Upon receipt of a police tort claim, solicitors for the State should immediately evaluate whether the alleged conduct falls within s 8(1)(a) or (b). If liability is clear, a formal concession should be filed promptly to trigger the mandatory strike-out of the officer under s 9D(1). Internal guidelines should mandate that counsel’s advice on the s 9C determination be obtained within 28 days of joinder.

For police officers, compliance is largely passive: they should refer all civil claims to the Crown Solicitor and refrain from entering personal appearances unless served after a Crown denial. Officers should maintain detailed incident reports that address both the factual circumstances and the statutory or common-law basis of their actions, as these will be crucial to the Crown’s assessment of whether the conduct was in the performance or purported performance of a function.

Private employers should review contracts and position descriptions to identify roles that involve independent statutory functions (for example, licensed professionals, safety officers, or holders of statutory offices). Insurance policies should be checked to confirm that cover extends to vicarious liability under s 7; many older policies contain exclusions for "statutory duties" that may no longer be effective.

Claimants’ solicitors must plead police tort claims against the Crown in the first instance. Originating process should expressly reserve the right to join the individual officer should the Crown deny liability. When amending under s 9B(4), the two-month window must be strictly observed; diary systems should flag the Crown’s defence as the trigger date. In mixed claims involving both police and non-police defendants, separate causes of action should be pleaded to preserve the savings in s 9E(d).

All parties must be alive to the court’s obligation under s 9C. Where both Crown and officer are joined, interlocutory applications should include a request for the s 9C determination to be listed as a preliminary issue. Failure to do so risks judicial criticism and costs orders.

Organisations should implement training on the distinction between "servant of the Crown" and "person in the service of the Crown", and maintain registers of employees who hold independent statutory offices. Regular legal audits of high-risk functions (use of force, arrests, mental-health apprehensions) will reduce the incidence of claims that test the outer boundaries of s 8(1).

In conclusion, compliance is achieved by treating the Act as a procedural code as much as a substantive-liability statute. Early identification of the correct defendant, prompt concessions or denials of vicarious liability, and careful attention to the statutory sequencing of determinations are the hallmarks of sophisticated practice under this legislation.