In a recent court decision of Cullen v State of New South Wales, the Supreme Court of NSW has awarded a judgment of $800,000 to an ‘invasion day’ attendee injured by police officers after the court found the police negligent in their duty of care. The case involved a rally where the plaintiff suffered significant injury when police officers charged into a crowd to prevent the burning of an Australian flag.
Factual background
In January 2017 the plaintiff again went to an Invasion Day rally, once more as a spectator. The organisers of the rally had agreed, with the police, to a condition that there would not be any burning of Australian flags.
The protest group made its way along Broadway, in Sydney’s CBD. One of the protesters, a Mr Birrugan Dunn-Velasco, drew a crowd around him and made a speech which included some inflammatory suggestions. He extended this theme by stating that he would burn the Australian flag. He doused a small flag in an accelerant.
The police, conscious of the condition that was about to be breached, rushed forward to impede the anticipated ignition. These police were members of a specific group, the Operations Support Group (the OSG). As the OSG officers moved through the crowd Mx Hayden Williams noticed a police officer (Sgt Amy Lowe) filming the surrounding events with a small handheld video recorder.
Mx Williams knocked the camera out of the officer’s hand causing another officer, Sgt Damian Livermore to rush forward and attempt to apprehend them. In the course of the physical contact between Mx Williams and the officer they both fell to the ground and knocked over the plaintiff. She struck her head on the ground and suffered significant injury.
Decision
The court examined whether the police owed a duty of care to the attendees of the rally. The defendant argued that no duty of care was owed, but the court disagreed. The court stated that there was no reason why a common law duty of care cannot be imposed on a police officer in such circumstances.
Furthermore, the court determined that the duty of care did not conflict with existing statutory obligations under the Police Act 1990 (NSW) and Law Enforcement (Powers and Responsibilities) Act (2002) (NSW). It held that a duty of care was owed to the public, including bystanders like the plaintiff, who were present at the rally.
The court found that the actions of the police officers, specifically the Operations Support Group (OSG), breached their duty of care. Video footage presented during the proceedings indicated that the officers’ actions were reckless and disproportionate to the potential danger. The court noted that the risk of injuring members of the crowd was significant, either through direct contact with the rushing officers or the resulting panic and confusion.
Additionally, the court addressed the arrest of another individual, Mx Williams, during the incident. While there were suspicions regarding the officer’s personal perception of the events leading to the arrest, the court concluded that the arrest was lawful based on the subjective belief of the arresting officer. This finding dismissed the plaintiff’s allegations of assault and battery against the officer.
However, the court ruled that the arresting officer owed the plaintiff a duty of care and that the arrest of Mx Williams was carried out negligently. The defendant conceded that if the arrest was deemed negligent, causation would logically follow. Therefore, the plaintiff was entitled to a judgment based on the negligence of the arresting officer as well.
The court awarded the plaintiff a judgment of $800,000.00 and ordered the defendant to pay the plaintiff’s costs of the proceedings, subject to further orders.
The decision is significant in its finding of a duty of care by the police officers to the bystanders despite the provisions of the Police Act 1990 (NSW) and Law Enforcement (Powers and Responsibilities) Act (2002) (NSW).
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