2003
2003
2004-07-06
act
government
publicspecial
act.reprint
allinforce
2003-11-13
2003-11-13
0
2004-07-06
act-2004-055
2003
none
act-2003-074
4a30f9fe-19e9-4aa8-8288-a092ee40551d
824a28b1-d2c0-4878-8312-b972dd0a3bbf
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act 2004
No 55, Sch 3 with effect from 6.7.2004.
An Act to amend the Employees Liability Act 1991 to confirm
that police officers are employees of the Crown for the purposes of that Act;
to amend the Law Reform (Vicarious Liability) Act
1983 to require persons seeking damages for torts
committed by police officers in the performance or purported performance of
their official functions generally to sue the Crown instead of the police
officers concerned; to amend the Police Act
1990 to extend the exclusion from civil liability of
members of NSW Police; and for other purposes.
1Name of
Act
This Act is the Police
Legislation Amendment (Civil Liability) Act
2003.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of
Acts
The Acts specified in Schedules 1–3 are
amended as set out in those Schedules.
Schedule 1Amendment of Employees Liability Act 1991 No
4
(Section 3)
Section
2A
Insert after section 2:
2APolice
officers
For the avoidance of doubt, a police officer is
declared to be an employee of the Crown for the purposes of this
Act.
Schedule 2Amendment of Law Reform (Vicarious Liability) Act 1983 No
38
(Section 3)
[1]Part 1,
heading
Insert before section 1:
Part 1Preliminary
[2]Section 5
Definitions
Insert in alphabetical order in section 5
(1):
court includes a tribunal, and in
relation to a claim for damages means any court or tribunal by or before which
the claim falls to be determined.
legal
proceedings means proceedings in a court.
originating process means any
statement of claim, summons, application or other process by means of which
legal proceedings are commenced.
police
tort claim—see section 9B
(1).
[3]Part 2,
heading
Insert before section 7:
Part 2Vicarious liability of masters
for independent functions
[4]Part 3,
heading
Insert before section 8:
Part 3Vicarious liability of Crown
for persons in its service
[5]Part 4
Insert after section 8:
Part 4Legal proceedings for damages
for torts by police officers
9When torts committed by police
officers
In this Part, a tort is committed, or allegedly
committed, by a police officer if the tort is committed, or allegedly
committed, by a person who was a police officer at the time of the tort or
alleged tort (whether or not acting in a personal or official
capacity).
9APart extends to former police
officers
A reference in this Part to a claim against a
police officer in respect of a tort or alleged tort includes a reference to a
claim against a person who was a police officer at the time of the tort or
alleged tort, but who has ceased to be a police officer since that
time.
9BHow can police tort claims be
made?
(1)
A police
tort claim is a claim for damages for a tort allegedly
committed by a police officer (the police
officer concerned) in the performance or purported
performance of the officer’s functions (including an independent
function) as a police officer, whether or not committed jointly or severally
with any other person.
(2)
Except as provided by this Part, a person may not
in any legal proceedings make a police tort claim against the police officer
concerned, but may instead make the claim against the
Crown.
(3)
A person who makes a police tort claim against
the Crown in any legal proceedings may join the police officer concerned as a
party to the proceedings only if the Crown denies that it would be vicariously
liable for the alleged tort if it were established that the police officer
concerned had committed the tort.
(4)
If a person seeks to join a police officer under
subsection (3) as a party to legal proceedings:
(a)
the person is not required to file a new
originating process, but may instead amend the existing originating process,
and
(b)
the court is to make such orders as it considers
appropriate to enable the existing originating process to be duly amended,
and
(c)
nothing in the Limitation Act
1969 precludes the making of a claim in the amended
originating process for damages against the police officer for the alleged
tort if the amendment to the originating process is made within 2 months after
the Crown denies that it would be vicariously liable for the alleged tort if
it were established that the police officer had committed the
tort.
9CCourt required to make initial
determination as to vicarious liability in any legal proceedings where in
issue
If the vicarious liability of the Crown is in
issue in any legal proceedings in which a claim is made for damages for a tort
allegedly committed by a police officer (whether or not it is a police tort
claim) and the Crown and the police officer are both parties to the
proceedings:
(a)
subject to paragraph (b)—the court must
make an initial determination as to whether or not the Crown would be
vicariously liable for the tort if it were established that the tort was
committed by the police officer, and
(b)
that determination is to be made as soon as is
reasonably practicable during the proceedings unless the court considers it
impracticable in the circumstances to make such a determination before it
determines whether or not the tort was committed.
9DWhen court to strike out or
dismiss claims against police officer or Crown
(1)
Subject to section 9E, a court must make such
orders as it considers appropriate to ensure that a claim before it for
damages against a police officer for a tort allegedly committed by the officer
is struck out or dismissed if:
(a)
the court makes an initial determination under
section 9C that the Crown would be vicariously liable for the tort if it were
established that the tort was committed by the police officer,
or
(b)
the Crown concedes that it would be vicariously
liable for the tort if it were established that the tort was committed by the
police officer.
(2)
A court must make such orders as it considers
appropriate to ensure that a claim before it for damages against the Crown for
a tort allegedly committed by a police officer is struck out or dismissed if
it makes an initial determination under section 9C that the Crown would not be
vicariously liable for the tort if it were established that the tort was
committed by the police officer.
9EPart does not affect certain
claims and legal proceedings
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, or
(b)
prevents the Crown from bringing legal
proceedings against, or claiming damages or a contribution or indemnity in any
legal proceedings from, a police officer for a tort committed by the officer,
or
(c)
prevents the Crown from joining a police officer
to proceedings claiming damages for a tort committed by the police officer,
or
(d)
prevents a person from bringing legal
proceedings, or claiming damages in any legal proceedings, against another
person who is not a police officer but who is jointly or severally liable for
a tort committed by a police officer, or
(e)
prevents a person from making a police tort claim
against a police officer in any legal proceedings brought against the person
by the police officer, or
(f)
prevents a person from bringing legal
proceedings, or claiming damages in any legal proceedings, against a police
officer for a tort committed by the police officer otherwise than in the
circumstances referred to in section 8 (1).
9FEffect of Part on other
laws
The provisions of this Part have effect despite
any other Act or law (whether written or unwritten). However, nothing in this
Part affects the operation of the Limitation Act
1969, except as provided by section 9B
(4).
9GApplication of Part to
pre-commencement torts
(1)
This Part extends to torts allegedly committed by
police officers before the commencement of this Part (a pre-commencement
tort).
(2)
This Part (other than sections 9B (2), 9C and 9D
(2)) also extends to any legal proceedings to which the Crown is a party
concerning a pre-commencement tort, but only if:
(a)
the proceedings are pending on the commencement
of this Part, and
(b)
the court has not yet begun a hearing on the
merits in the proceedings.
[6]Part 5,
heading
Insert before section 10:
Part 5Miscellaneous
Schedule 3Amendment of Police Act 1990 No
47
(Section 3)
[1]Section
213
Omit the section. Insert instead:
213Protection from personal
liability
A member of NSW Police is not liable for any
injury or damage caused by any act or omission of the member in the exercise
by the member in good faith of a function conferred or imposed by or under
this or any other Act or law (whether written or
unwritten).
[2]Schedule 4 Savings,
transitional and other provisions
Insert at the end of clause 2 (1):
Police
Legislation Amendment (Civil Liability) Act
2003
[3]Schedule 4, Part
20
Insert after Part 19:
Part 20Provisions consequent on
enactment of Police Legislation Amendment (Civil
Liability) Act 2003
66Application of amendment to
section 213
(1)
Section 213 (as substituted by the Police Legislation Amendment (Civil Liability) Act
2003) extends to any act or omission of a member of NSW
Police that was done, or omitted to be done, before the commencement of that
section.
(2)
However, section 213 (as substituted by the
Police Legislation Amendment (Civil Liability) Act
2003) does not extend to any proceedings in respect of any
such act or omission brought before the commencement of that
section.
Historical
notes
Table of amending
instruments
Police
Legislation Amendment (Civil Liability) Act 2003 No 74.
Second reading speech made: Legislative Assembly, 13.11.2003; Legislative
Council, 18.11.2003. Assented to 20.11.2003. Date of commencement, 1.1.2004,
sec 2 and GG No 197 of 19.12.2003, p 11267.