NSW Supreme Court awards $800,000 to an ‘Invasion Day’ rally attendee injured by police officers

24 July 2023

A common law duty of police officers is not inconsistent with statutory duties, and applied to allow a significant damages award to a protester at a rally.

In issue

  • Whether law enforcement officers owe a duty of care towards individuals attending public demonstrations.

The background

In January 2017, the plaintiff attended an Invasion Day rally as a spectator along Broadway in Sydney’s CBD. The organisers of the rally had entered into an agreement with the police that there would not be any burning of Australian flags at the rally.

One of the protesters, Mr Birrugan Dunn-Velasco, made a speech in which he stated he would burn an Australian flag and then proceeded to douse a small flag in an accelerant.

Sergeant Amy Lowe, a police officer, documented the unfolding events with a handheld video recorder until a participant in the rally, Mx Williams, knocked the camera out of Sergeant Lowe's hand. In response, another officer, Sergeant Damien Livermore, rushed forward to physically apprehend Mx Williams, resulting in them both falling to the ground. The collision caused the plaintiff to also be knocked over. The plaintiff sustained a severe head injury as a consequence of the fall.

The plaintiff commenced legal proceedings against the State of New South Wales. The main issue in the case was whether the police owed a duty of care to the plaintiff. The parties had agreed on quantum in the event that the plaintiff was successful on liability.

The decision at trial

The plaintiff argued that the police were responsible for ensuring the safety of all participants at the rally. The defendant argued that a duty of care was incompatible with the statutory frameworks governing the actions of the police and that a duty of care could not coexist with the duties imposed regarding an alleged wrongdoer.

Video footage exhibited throughout the proceeding showed that the officers’ actions were reckless and out of proportion to the danger possibly threatened by crowd. The court noted in this regard that the risk of injuring members of the crowd by either coming into contact with the officer or through panic and confusion was significant, and considered that the arrest of Mx Williams was carried out negligently.

The court determined that the duty of care owed by the police officers did not conflict with existing statutory obligations, and held that a duty of care was owed by the officers to the public, including bystanders like the plaintiff, who were present at the rally.

The court awarded the plaintiff $800,000.00 in damages and ordered the defendant to pay the plaintiff’s costs of the proceedings.

Implications for you

The decision is significant as it confirms that the police owe a duty of care to bystanders in public regardless of any provisions in the legislation governing them.

Cullen v New South Wales [2023] NSWSC 653

Harriet Haig (with the assistance of Vacation Clerk Mia Foley)

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