Police officers’ duties of care at protests

In Cullen v State of New South Wales [2023] NSWSC 653, the Supreme Court of New South Wales awarded $800,000 to a bystander at a rally who suffered a significant head injury after being knocked to the ground by a police officer.

The result follows the Court’s findings that the police officers owed the bystander a common law duty of care, breached that duty of care by their conduct, and in doing so, caused the injury to the plaintiff.

The case is notable in that the successful plaintiff was merely a bystander. The police were pursuing entirely unrelated persons. Nonetheless, the police owed the bystander a duty of care in performing their duties.


In January 2017, the plaintiff was a spectator at an Invasion Day Rally in Sydney’s CBD.

The organisers of the rally had agreed with police that there would be no burning of Australian flags at the rally. At the Invasion Day rally the year prior, an Australian flag had been ignited.

During the 2017 rally, which was proceeding through Sydney’s CBD, a protestor drew a crowd around him and made a speech which included some inflammatory suggestions, including that he would burn an Australian flag. The protestor then doused a small Australian flag in an accelerant, however, the flag was not ignited by the protestor.

Police officers of the Operations Support Group (OSG) then moved through the crowd towards the protestor with the flag while discharging fire-extinguishers. Upon noticing a police officer filming the incident, another protestor (Mx Hayden Williams) knocked the camera out of the officer’s hand.

This caused another officer, Sgt Livermore, to rush forward and attempt to apprehend Mx Williams. In the course of that interaction, Sgt Livermore and Mx Williams fell to the ground and knocked over the plaintiff, who struck her head on the ground and suffered a significant injury.

The plaintiff’s case

The plaintiff contended that:

  1. the police owed her a duty of care; and
  2. the actions of the police were negligent, breaching that duty.

The plaintiff further argued that the arrest of Mx Williams was unlawful and that she was the victim of assault and battery. Ultimately, the Court did not need to consider this argument in granting judgment for the plaintiff.

The position advanced for the defendant was that the police owed no duty of care to the plaintiff, and if a duty of care was owed, there was no breach of that duty and the actions of the police were lawful. The defendant relied on the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) to justify the polices’ actions and said that the plaintiff had not met the standard required by s 43A(3) of the Civil Liability Act 2002 (NSW) (CLA), which provides:

… any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.


His Honour Acting Justice Elkaim was satisfied that a duty of care was owed by the police to the public present at the rally, including the plaintiff. That duty was breached, which caused the injury to the plaintiff: [133], [150].

When considering whether the OSG police officers owed the plaintiff a duty of care, Elkaim AJ made the following observations:

  • in reference to Sullivan v Moody (2001) 207 CLR 562 at [60], it was held that a duty of care may exist provided that the duty is not irreconcilable with other duties, in particular statutory duties, imposed upon the alleged tortfeasor: [110];
  • the question of whether or not a duty of care exists can vary according to the factual circumstances of the case: [115]; and
  • in the context of police officers:
    • while a duty of care to a person being investigated may be denied (as it was in Tame v State of New South Wales (2002) 211 CLR 317) that does not mean there is no duty of care to an entirely innocent person that is not being investigated: [117]; and
    • police do not have a general immunity from civil liability; there is scope for the existence of a duty of care owed by police to the general public: [118].

In considering the salient features of this case, Elkaim AJ observed:

  • while police are called upon to make quick decisions, that does not give them permission to intervene where intervention is either not necessary or can be achieved in a non-violent manner. Police do not have carte blanche to act as they please: [128];
  • the participants in the rally, and the bystanders, were persons entitled to protection from injury or death: [129];
  • although the police were understandably apprehensive about the protestor burning an Australian flag, the police did not have an effective immunity to charge through and amongst innocent persons to prevent the lighting of the flag: [130]. His Honour separately noted that, without more, it was not an offence to burn the Australian flag: [30]; and
  • the facts were closely analogous to those in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736. In this case, not only was the risk of injury to the crowd reasonably foreseeable but so too was the chaos and panic that was likely to arise by the sudden arrival of the officers, together with the discharging of the fire extinguishers. This in turn created the circumstances in which Mx Williams reacted in assaulting the police officer and then came to be arrested by Sgt Liversmore: [132].

In finding that the OSG breached its duty of care, his Honour considered:

  • section 5B of the CLA and found (at [134]):
    • the risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating was plain;
    • the risk was not insignificant so that a reasonable person would have taken precautions to avoid the risk; and
    • other actions which were likely available to the police officers which were less drastic would have sufficed to achieve the objects the OSG team seems to have had in mind.
  • section 43A of the CLA, extracted above. His Honour noted that there was no dispute that the police force was a ‘public authority’. His Honour then outlined how he had ‘easily reached’ the conclusion that the OSG officers acted recklessly or unreasonably in the terms of that section: [136]–[141].

As to his finding that the breach of duty by the OSG officers caused the injury to the plaintiff, his Honour:

  • found that the actions of Mx Williams in assaulting the police office were not an intervening act which broke the chain of causation (at [143]–[149]). This is because the panic created by the OSG officers initiated the actions of Mx Williams and the chaos was the catalyst for Mx Williams’ attack upon the police officer. His Honour observed ‘[i]n this way, the OSG officers initiated a domino effect, culminating in the injury to the plaintiff’, or, applying the common law terminology ‘but for the actions of the OSG officers’ the plaintiff would not have been injured: [144];
  • observed that proof of causation is not dependent upon there being only one causative act—there may be more than one such act: [147]; and
  • emphasised that but for the police intervention, no issue would have arisen with Mx Williams and in turn, there would have been no need to apprehend Mx Williams and no confrontation would have occurred leading to the plaintiff being knocked to the ground: [149].

Further considerations

Lawful arrest of Mx Williams?

Although it was not necessary to consider the balance of the allegations against the defendant, his Honour proceeded to do so in the event that he was incorrect on his findings of liability.

In summary, his Honour found that, despite his suspicions, he could not reject Sgt Livermore’s evidence that he had a subjective belief that it was ‘reasonably necessary’ for the arrest of Mx Williams to occur: [158], [162].

This finding was sufficient to satisfy section 99(1)(b) of the LEPRA which, in effect, deemed the arrest to be lawful.

Did the arresting officer owe the plaintiff a duty of care when arresting Mx Williams?

His Honour observed that the finding that the arrest of Mx Williams was lawful did not necessarily exclude liability arising from the arrest if a duty of care was owed by Sgt Livermore and that duty was breached: [163].

Having considered the submissions of the parties and the salient features of the matter, his Honour found that Sgt Livermore owed the plaintiff a duty of care which made him susceptible to an allegation of negligence for the manner in which he arrested Mx Williams: [170].

His Honour also found that the arrest of Mx Williams was carried out negligently: [171]. In particular, as to:

  • section 5B of the CLA, a risk of harm of colliding with persons when taking physical action within a small crowd was foreseeable and not insignificant: [172]; and
  • section 43A of the CLA, the arresting officer’s conduct was reckless because it ignored the strong potential of harm to persons close by: [173].

On that basis, the plaintiff was again entitled to judgment in her favour derived from the negligence of Sgt Livermore.

Position in Western Australia

As was observed by Acting Justice Elkaim, whether a duty of care arises will depend on the facts of the relevant case.

However, there is no reason that the analysis which his Honour undertook to reach a finding that the police officers in NSW owed a duty to a bystander could not apply to factual situations in Western Australia.

Notably, Western Australia’s statutory equivalent to the NSW CLA (also known as the Civil Liability Act 2002 (WA) (WA CLA)) contains a substantively identical section 5B. The WA CLA does not have a provision directly comparable to section 43A of NSW CLA, however, section 5Y of the WA CLA provides:

  1. This section applies to proceedings to which this Part applies that are based on an alleged breach of a statutory duty by a public body or officer in connection with the exercise of or a failure to exercise a public function of the body or officer.
  2. For the purpose of proceedings to which this section applies, the public body or officer cannot be liable for damages for harm caused by fault in the exercise of, or a failure to exercise, the statutory duty unless the provisions and policy of the enactment in which the duty is created are compatible with the existence of that liability.


The case has broader implications for other public officers in the performance of their duties. It suggests that all public officers should give consideration to bystanders when performing their duties.

The key takeaway may be framed even more broadly: a member of the public not immediately connected to a public officer’s duties may be owed a duty of care, provided the person has some of proximity to the officer’s duties.

Shemali Samaraweera

Principal Associate

Dillon Wong


Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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