We have previously written about the landmark decision of Cullen v State of New South Wales [2023] NSWSC 653 in which the Court held that police officers owe a duty of care to members of the public attending protests. This decision was appealed by the State.
In this post, Kate Vanrenen, Associate in the Police Misconduct Team, provides an overview of the New South Wales Court of Appeal’s decision on appeal.
Background
Ms Cullen was a bystander at an Invasion Day Rally in January 2017. She was seriously injured when, during a scuffle involving police officers and protesters, she was knocked to the ground by a police officer as that officer arrested a protestor for assault.
The primary judge held in favour of Ms Cullen on the basis of negligence by the police officers who attended the rally and awarded Ms Cullen damages. On appeal by the State, the Court of Appeal was asked to consider again whether police officers owed Ms Cullen a duty of care and, if so, whether it was breached.
Summary
Importantly, the Court of Appeal (Gleeson, Kirk and White JJA) agreed that the police officers owed a duty to take reasonable care for the safety of bystanders at the rally.
On the issue of breach and causation the majority judgment of the Court held that the duty must be set aside as it conflicted with the obligations of police officers to prevent breaches of the peace and that the chain of causation from the police officers’ actions to Ms Cullen’s injuries was broken by the criminal actions of another protestor.
In his final judgment before retirement, White JA dissented and held:
- police officers’ duty to prevent a breach of the peace and a duty to take reasonable care for the safety of bystanders who might be affected by a breach of the peace are congruent;
- the police officers’ actions which caused the mêlée in the crown were legally causative of Ms Cullen’s injuries on the basis that the criminal actions of the protestor and the resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the police officers’ actions.
Duty and breach with respect to police officers
Gleeson and Kirk JJA held that when determining the scope of a duty of care, the issues of who is owed the duty of care and the risk of harm necessitating reasonable steps to be taken to avoid are linked: [68]. Their Honours stated that the duty of care owed by the police officers was a duty to take reasonable care to avoid the risk of the officers’ actions inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march: [72], [79].
As to breach, Gleeson and Kirk JJA emphasised the conflicting obligations of police officers to prevent breaches of the peace, even in crowded situations: [81], [82]. In that context, their Honours found that the precautions which the primary judge suggested the police officers should have taken were impractical and ignored those conflicting obligations. It was therefore held that the finding of breach of duty by the officers must be set aside.
In his dissenting judgment, White JA stated that:
- bystanders at the rally were vulnerable to the risk of injury if the police officers provoked violence: [182];
- police caused the mêlée that led to Ms Cullen’s injury: [182];
- police used their powers to intervene in a field of activity that increased the risk of harm to bystanders (in the words of McHugh J in Graham Barclay Oysters): [182];
- no authorities cited by the State of NSW suggested that the existence of a duty of care on the part of the police officers was negated because the duty would be inconsistent or incompatible with the statutory powers or duties imposed on the police: [183]-[197];
- police officers’ duty to prevent a breach of the peace and a duty to take reasonable care for the safety of bystanders who might be affected by a breach of the peace were congruent: [199];
- the actions of police were calculated to inflame the situation and create a mêlée, they therefore breached their duty of care to the bystanders: [226].
Duty and breach with respect to the arresting officer
For the purpose of the appeal Gleeson and Kirk JJA accepted that the arresting officer who knocked over Ms Cullen owed a duty to take reasonable care to avoid the risk of inflicting physical injury on persons in the immediate vicinity of the arrest of another person: [91].
However, the Court agreed that the was no breach of the duty by the arresting officer. It was held that the evaluation of police conduct in effecting an arrest must be conducted by reference to ‘the pressure of events and the agony of the moment’, rather than hindsight. In this case, the arresting officer had no time to evaluate the circumstances, reacted instinctively, and used no more force that was reasonably necessary to effect the arrest: [209]-[212]. The arresting officer therefore did not breach the duty of care owed: [230].
Causation
Unfortunately for Ms Cullen, Gleeson and Kirk JJA agreed that it was the distinct, significant criminal action of the protestor that caused her injuries. Their Honours held that the decision of the protestor to commit an assault could not be characterised as occurring in the ordinary course of things which might flow from the actions of the police officers at the rally: [105]. Rather it was the difficulty of effecting a lawful arrest which led to Ms Cullen being injured. The chain of causation from the police officers’ actions to her injuries was broken: [109].
White JA did not agree and held that:
- the police foresaw the risk that sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered, and such a situation could clearly also result in injury to participants in the rally.
- It is enough that the incident leading to Ms Cullen’s injury was of a kind or class which might normally be foreseen or contemplated.
- The criminal actions of the protestor and the resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the police officers’ actions.
- The chain of causation was therefore not broken by the unlawful actions of the protestor, and the negligence of the police officers was causative of Ms Cullen’s injuries: [243]-[247].
Author: Kate Vanrenen
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An experienced litigator, Kate is dedicated to achieving the best possible outcomes for people who have been treated unlawfully by Victoria Police and for families involved in coronial investigations.
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