By Grant Mitchell, Partner and Madison Hornabrook, Lawyer

The High Court’s judgment in Cullen v New South Wales demonstrates that police officers owed a duty of care when intervening in a protest march, to avoid the risk of physical injury to members of the crowd, including bystanders who were foreseeably at risk of physical injury resulting from officers’ emergency responses. However, in considering whether there has been a breach of that duty, it is important to consider the context.  The High Court took into account that it was an emotionally charged, anti-authority setting where the “agony of the moment” calls for the act which created the very risk of physical injury. The acts of the officers were not unreasonable in the context. 

Facts

Cullen, the appellant, was a bystander at the Sydney Invasion Day protest march in 2017.

The police had employed a group of seven officers called the Operational Services Group who were trained in riot and public order management to be present at the protest. After a speaker’s address to the crowd, the officers witnessed the speaker douse a liquid on an Australian flag. The officers were forewarned that the speaker had been seen with what appeared to be lighter fluid in his pants pocket. Before the flag caught alight, the officers “charged through” the crowd and discharged a fire extinguisher. This caused the crowd to become angry and panicked.

A protestor struck the arm of a police Constable who was filming the speech, and the Constable’s videocam was knocked to the ground. A senior police Constable witnessed this assault and attempted to arrest the protestor. In this struggle, the protestor collided with Cullen who was standing by a median strip about 15 metres away from the speaker. Cullen was knocked to the ground and hit her head, suffering serious physical injury.

The High Court considered whether the police officers owed a duty of care to Cullen, whether the police officers breached that duty of care, and whether liability should extend to Cullen’s injuries.

Formulation of Duty

The majority of the NSW Court of Appeal considered that when the officers conducted a rushed response into the crowd, the officers were too far away from Cullen for the scope of their duty of care to extend to her. The duty of the officers to exercise reasonable care was confined to “persons in the immediate vicinity” of the police response.

The High Court rejected the Court of Appeal’s approach, holding that the criterion is reasonable foreseeability in the particular circumstances, not a fixed measure of distance. Therefore, it was reasonably foreseeable by someone in the position of the officers that their actions in conducting a rushed response into that crowd could injure anyone in the crowd, including a bystander like Cullen. This injury includes harm inflicted by the officers directly or otherwise resulting from their actions.

The scope of a duty of care is highly context sensitive. Duty of care takes into account all conduct and an imposed duty will extend to criminal conduct of third parties. This was particularly relevant in that the protestor’s assault of the Constable, which then caused the collision with Cullen, was described as the type of conduct that was likely to happen and should have been anticipated. As such, it was reasonably foreseeable and did not break the chain of causation.

The officers owed a duty of care to Cullen.

Formulation of Breach

Cullen sought to appeal the Court of Appeal’s finding that there was no breach of duty by the officers and that by implication, the State of NSW was not held vicariously liable for her injuries.

The High Court agreed with the Court of Appeal that although the officers owed a duty of care, they did not breach their duty.

The formulation of breach is an objective question turning on whether the response of the officers was one that would have been taken by a reasonable person in their position based upon the circumstances as they existed immediately before the event. Such circumstances include the degree of pressure under which a decision must be made.

Cullen’s case on breach was that the officers responded disproportionately to the flag being set alight when considered against the risks of a flag being set alight. Cullen relied on three alternative, less forceful ways that the officers could have intervened, including taking no action at all.

The High Court considered that a flag doused in accelerant in close proximity to a crowd which was densely packed in places required a rapid decision to be made in an emotional environment. Further, without the “calm satisfaction of hindsight” the High Court held that the officers acted as reasonable people in their position would have acted. The alternative measures suggested by Cullen were not precautions that a reasonable person would have taken.

The officers did not breach their duty of care to Cullen.

Key Takeaways

• A duty of care may be owed to a broad class of persons beyond the immediate vicinity of an incident. However the duty of care will not be breached if the conduct is that of what a reasonable person, under the same degree of pressure, would do.
• The issue of breach of duty must be examined against the whole of the context of the situation, and is not simply measured against whether alternative responses to an incident would have been a better alternative.