NSW Supreme Court awards $800,000.00 to protestor injured by police officers: Cullen v State of New South Wales [2023] NSWC 653

William Deicke

Legal Practitioner

The Supreme Court of New South Wales has recently awarded damages in the sum of $800,000.00 to a protestor whom was injured by police officers at an ‘Invasion Day’ protest in 2017.

Background

In January 2017, the Plaintiff, Laura Cullen, attended an ‘Invasion Day’ rally in the Sydney CBD as a spectator. Prior to the holding of the protest, the organisers of the rally had reached agreement with the police that Australian flags would not be burnt as part of the protest.

As the protest group made its way along Broadway, one of the protestors made a speech, stating that he would burn the Australian flag, prior to dousing a small flag in an accelerant. Police rushed forward to impede the impending ignition. As they did so, another protestor, Mx Hayden Williams, knocked a camera from the hands of a police officer, with a separate officer attempting to apprehend Mx Williams. In doing so, the officer and Mx Williams fell to the ground, knocking over the Plaintiff. As a result, the Plaintiff struck her head on the ground, sustaining a significant injury.

Position of Parties at Trial

Prior to the commencement of trial, the parties had agreed upon the quantum of the matter in the event that the Plaintiff was successful on liability.

The Plaintiff alleged that the police owed her a duty of care, and that their actions were in breach of that duty and were negligent. The Plaintiff further alleged that the arrest of Mx Williams was unlawful, and that she was the victim of an assault and battery.

The Defendant, the State of New South Wales, alleged that no duty of care was owed to the Plaintiff, but if one was found to exist, it was not breached by the police officers, and that the officer’s actions were lawful. The Defendant relied upon the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), in justification of the actions taken by officers. The Defendant further relied upon s 43A of the Civil Liability Act 2002 (NSW), arguing that the Plaintiff had not met the high standard imposed by this provision.

Decision

The Court found in favour of the Plaintiff, opining those police at the rally owed a duty of care to the public, including bystanders such as the Plaintiff. The Court further opined that this duty of care did not conflict with existing statutory obligations, stating that the body of case law on the subject, and in particular Sullivan v Mioody (2001) 207 CLR 562, made it clear that police do not have a general immunity from “suit in respect of anything done by them in the course of investigating or preventing crime.”

Elkaim AJ relied on video footage from the rally in concluding that the actions of the officers present at the rally were “reckless and out of proportion to the danger possibly threatened and certainly in comparison to the risk of injuring members of the crowd either by direct contact with the rushing officers or through the panic and confusion that was likely to emerge”. Accordingly, the court was satisfied that the duty of care owed to the Plaintiff was breached by the officers’ conduct.

As to causation, Elkaim AJ was satisfied that but for the officers’ intervention in the flag burning, there would have been no need to apprehend Mx Williams, and as such, no confrontation that lead to the Plaintiff being knocked to the ground would have occurred.

Satisfied that a duty of care was owed to the Plaintiff, that duty of care was breached by the Defendant, and that breach caused the injury sustained, Elkaim AJ opined that the Plaintiff was entitled to a verdict for the amount agreed upon by the parties prior to the trial.