In the highly significant case of Cullen v State of New South Wales [2023] NSWSC 653, fundamental questions regarding the duty of care during public protests have been brought to the forefront. This dispute centres around an incident that transpired during an ‘Invasion Day Rally’ in January 2017, resulting in significant harm to the plaintiff. In this article, we delve into the details and explore the far-reaching implications of this case.
The facts of the case
During the protest, the organisers had entered into an agreement with law enforcement, stipulating that the burning of Australian flags was strictly prohibited. However, a prominent protester named Mr. Birrugan Dunn-Velasco garnered attention by publicly declaring his intent to burn an Australian flag and even proceeded to douse it in an accelerant. Recognising the violation of the agreed-upon conditions, the Operations Support Group (OSG) promptly intervened to prevent the ignition.
As events unfolded, Sergeant Amy Lowe, a police officer, documented the proceedings using a handheld video recorder. It was at this juncture that a participant in the rally, identified as Mx Williams, forcefully struck the camera out of Sgt Lowe's hand. In response, Sergeant Damien Livermore swiftly moved forward to apprehend Mx Williams, resulting in an unintended physical encounter.The collision led to both Sgt Livermore and Mx Williams falling to the ground, inadvertently causing the plaintiff to also be knocked over.
The plaintiff sustained a severe head injury as a consequence of the fall, instigating a legal battle centred on the question of whether the police owed her a duty of care.
The duty of care debate
At the heart of the case lies the critical issue of whether law enforcement officers bear a duty of care towards individuals attending public demonstrations. The plaintiff contended that the police were responsible for ensuring the safety of all participants, including herself, while the defendants argued that their actions fell within the scope of their official duties, absolving them of liability for her injury.
The defendant argued that a duty of care was incompatible with the statutory frameworks governing the actions of the police. Citing the case of Sullivan v Moody, it was contended that a duty of care could not coexist with the statutory duties imposed on the alleged wrongdoer. However, Elkaim AJ, in accordance with his interpretation of Sullivan, believed that a duty of care could be recognised as long as it did not conflict with other duties, particularly those imposed by statute.
Initially, Elkaim AJ considered the possibility that a common law duty of care might be excluded due to its inconsistency with the statutory powers granted to the police under legislation such as the Police Act 1900 (NSW) or the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). This concern was raised in the case of Hunter and New England Local Health District v McKenna. However, it should be noted that McKenna primarily dealt with the conflict between a duty of care and the Mental Health Act 2007 (NSW), not LEPRA. Elkaim AJ pointed out that the Mental Health Act differs from LEPRA as it does not contain a provision equivalent to section 4 of LEPRA.
Furthermore, the defendant argued that recognising a duty of care would impede the police's ability to fulfil their duties, citing previous cases such as Tame v State of NSW, Cran v State of NSW, and State of NSW v Klein.
However, Elkaim AJ pointed out that the circumstances in the Tame case were significantly different from the present case. In this instance, the plaintiff was not the direct subject of police action but rather an innocent bystander who suffered harm as a result of the police's actions unrelated to the plaintiff.
Elkaim AJ emphasised that the existence of a duty of care can vary depending on the specific factual circumstances of each case. Quoting Hayne J in Tame, it was affirmed that while a duty of care to a person under investigation may be disputed, this does not negate the presence of a duty of care towards an entirely innocent individual who is not under investigation.
Elkaim AJ further clarified that the cases referenced by the defendant do not grant the police blanket immunity. Instead, there is room for the recognition of a duty of care, as indicated in Sullivan v Moody at [60].
Implications and outcomes
The defendant submitted that Elkaim AJ should take into account these salient features:
- Duty of care was inconsistent with police attending crowded situations where they are required to make quick decisions whether to take action to prevent a breach to peace.
- The police were not in control of the circumstances at the protest.
- The police were responding to ‘a dynamic situation’ organised by someone else and attended by thousands of people, some of which were creating risks.
Elkaim AJ held that the answer to these points was that ‘there was no need for the OSG to take the actions they decided upon’. This is because:
- The situation was peaceful
- The flag had not been lit and there was probably little danger if he did
- While the police had to make quick decisions, ‘it does not give them permission to intervene where intervention is either not necessary of can be achieved in a non-violent manner’
- ‘Police do not have carte blanche to act as they please’
- ‘It is a crucially salient feature’ that there was no reason for the OSG to intervene with fire extinguishers ‘blazing’
- ‘The participants in the rally, and the bystanders, were persons entitled to protection from injury or death’
- While the police were understandably apprehensive about the flag burning, between the police and the flag was a crowd of innocent persons and the flag had not yet been ignited. The police did not have ‘an effective immunity to charge through and amongst innocent persons’ to prevent the flag lighting
- ‘The OSG were faced with the rear of a crowd into which they rushed, without warning, bearing at least two fire extinguishers.’ The risk to the crown was ‘reasonably foreseeable’ and so was ‘the chaos and panic that was likely to arise by the sudden arrival of the officers, together with the discharging of the fire extinguishers.’
- ‘This in turn created the circumstances in which Mx Williams reacted, by assaulting Sgt Lowe, and then came to be arrested by Sgt Livermore.’
Therefore, Elkaim AJ was satisfied that a duty of care was owed to the public, including bystanders like the plaintiff, present at the rally.
In relation to the question of whether Sgt Livermore owed the plaintiff a duty of care when arresting Mx Williams, Elkaim AJ found that although the arrest itself was lawful, it ‘does not necessarily exclude liability arising from the arrest if a duty was owed’ and it was breached.
Ultimately, Elkaim AJ found that Sgt Livermore owed the plaintiff, who was standing very close to him as a member of the crowd, a duty of care which made him susceptible to an allegation of negligence in the manner in which he arrested Mx Williams. Elkaim AJ was satisfied that the arrest of Mx Williams was carried out negligently.
Our police misconduct team helps people with civil claims and coronial inquests. We're also responsible for advocacy work and representing people in criminal matters. You should speak to a lawyer as soon as possible after any police misconduct takes place.
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How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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