In a recent court decision of Cullen v State of New South Wales, the High Court of NSW has dismissed the appeal after finding no breach of a duty of care by the OSG officers.The appeal to this court raised 3 issues:
- Whether the OSG officers owed a duty of care that extended to the risk of the physical injury suffered by the appellant
- If so, whether that duty was breached
- If so, whether it is appropriate for the scope of the OSG officers’ liability to extend to the appellant’s injuries caused by that breach.
Although the OSG officers were found to owe such a duty, the second limb failed as the actions of the officers was not unreasonable in the context of the apprehended threat to public safety that they were responding to.
Factual background
In January 2017 the plaintiff again went to an Invasion Day rally, once more as a spectator. The march was an authorised public assembly, and the organisers of the rally had agreed, with the police, to a condition that there would not be any burning of Australian flags for the safety of the community.
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. The police became conscious of the condition that was about to be breached and recognised that if Mr Dunn-Velasco tried to burn the flag it could cause a risk to public safety and someone would need to extinguish the fire.
Inspector Baker spoke to Mr Dunn-Velasco on 2 occasions to ensure there was a peaceful protest and by implication, asked him not to burn a flag or effigy. However approximately 2 minutes later, at the conclusion of his speech, Mr Dunn-Velasco announced that he was “going to do something about it” and proceeded to bend down and squirt liquid onto an Australian flag.
The officers 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 of Appeal held that the actions of the OSG officers were reckless and out of proportion to the danger possibly threatened. This High Court appeal re-examined the duty of care owed to the attendees of the rally. The court referred to the function of the NSW Police Force to protect individuals from injury and death and property from damage. It is lawful for a police officer to use such force as is reasonably necessary to exercise the function per Law Enforcement (Powers and Responsibilities) Act (2002) (NSW).
The court firstly observed that a duty of care was owed by the OSG officers but differed from the States contention that it was to avoid the risk of an emotional crowd or reaction. Instead, the relevant risk of harm was the reasonably foreseeable risk of physical injury to bystanders resulting from a police intervention into the march to address a threat to public safety. As a bystander, the appellant was owed a duty of care by the OSG officers in intervening in the march to avoid reasonably foreseeable risks of physical injury.
Yet the most contentious issue in the appeal to the High Court was whether there was a breach of this duty of care. This is an objective question of whether the response of the defendant was one that would have been taken by a reasonable person in the defendant’s position based upon the circumstances as they existed immediately before the event.
This assessment required the court to consider the Civil Liability act, specifically 5B, and the social utility of the activity that creates harm. In relation to s 5B, s 5B(1)(a) was satisfied given a foreseeable risk of harm. s 5B(1)(b) was also satisfied given the risk was not insignificant.
Yet the court considered s 5B(1)(c) in greater detail. The issue was whether a reasonable person in the position of the OSG officers would have taken one of the precautions identified by the primary judge being no action at all or one of two less forceful responses to the threatened setting alight of the flag.
The first suggested alternative that no action be taken at all to prevent Mr Dunn Velasco from setting fire to the flag was not accepted given the uncertainty of the liquid Mr Dunn-Velasco was carrying and how it would react if it was ignited, particularly in a dense crowd.
Further, the next suggested alternative of the OSG officers “announcing their arrival to the crowd” was not a “decisive” response considering the objective risk of danger in the circumstances of Mr Dunn-Velasco’s actions. Here, the court emphasised that Inspector baker took reasonable first steps in telling Mr Dunn-Velasco on 2 occasions prior to not start a fire.
Finally, the remaining suggested alternative limited to a single officer walking through the crowd with a fire extinguisher was deemed an unsatisfactory response under the circumstances. This included the risk that members of the crowd might attempt to injure the OSG officers.
The court then summed up that all three suggested precautions (the two involving lesser force than in fact used and the taking of no action at all) also failed to take into account the dynamic nature of the situation that presented itself.
Therefore, given the circumstances surrounding the incident, which involved a dynamic and unpredictable environment, the OSG Officer’s response was held to be a reasonable response by a reasonable person in their position. Hence, there was no breach of a duty of care.
The court dismissed the appeal.
The decision is significant in finding no breach of a duty of care by the police officers to the bystanders in the circumstances.
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