What it does
The Law Reform (Vicarious Liability) Act 1983 (NSW) fundamentally alters the common-law principles governing when one party is held responsible for the tortious acts of another. At its core, the Act imposes vicarious liability in circumstances where traditional master-servant doctrine might otherwise have provided a defence, particularly where the tortfeasor is performing an "independent function".
Section 7 provides that, notwithstanding any law to the contrary, a master is vicariously liable for a tort committed by their servant in the performance or purported performance of an independent function if that performance (a) occurs in the course of the servant's service or as an incident of it (whether or not expressly required by the contract of service), or (b) is directed to or incidental to the carrying on of any business, enterprise, undertaking or activity of the master. The term "independent function" is defined in s 5(1) as a function conferred or imposed upon the servant (whether as holder of an office or otherwise) by common law or statute independently of the will of the servant's master.
Part 3 extends parallel liability to the Crown. Section 8(1) states that the Crown is vicariously liable for torts committed by a person in the service of the Crown (expressly distinguished from a "servant of the Crown" by s 5(1) and s 6) in the performance or purported performance of a function, including an independent function, where the same two-limb test is satisfied. Subsection 8(2) carves out liability where the tort occurs in the conduct of a business, enterprise, undertaking or activity carried on by the person on their own account or by a partnership of which they are a member.
The most significant operational expansion appears in Part 4 (inserted by the 2003 amendments). This Part creates a statutory scheme for "police tort claims". Section 9B(1) defines such a claim as one for damages for a tort allegedly committed by a police officer in the performance or purported performance of the officer's functions (including independent functions) as a police officer. Critically, s 9B(2) provides that, except as provided by the Part, a person may not make a police tort claim against the individual police officer in any legal proceedings but must instead claim against the Crown. Joinder of the officer is permitted only where the Crown denies vicarious liability (s 9B(3)), and specific machinery allows amendment of originating process without fresh proceedings, supported by a two-month extension under the (s 9B(4)).