On a hot January afternoon in 2017, thousands gathered in Sydney for an Invasion Day protest. The appellant, Ms Laura Cullen, attended as a bystander. During the protest, police officers received information that a participant intended to ignite a flag using a liquid accelerant. Concerned about the risk of fire in a densely packed crowd, officers rapidly entered the crowd to prevent ignition.
The intervention by police involved a sudden and forceful movement into the crowd, with at least one fire extinguisher discharged. This triggered confusion and agitation among those nearby.
Separately, another protestor, struck a police officer filming the protest. A second officer attempted to arrest that individual, and during the ensuing struggle, the officer and the protestor collided with the appellant, who was knocked to the ground, sustaining serious head injuries.
At first instance, the Supreme Court of New South Wales found the police intervention caused a ‘melee’ and the appellant’s injuries were a consequence of that conduct. In the premises, the State was vicariously liable in negligence. Damages were assessed at $800,000.
The New South Wales Court of Appeal, however, allowed the State’s appeal, finding there was no breach of duty. The appellant appealed to the High Court.
The High Court was asked to consider:-
(a) Whether the police owed a duty of care to the appellant;
(b) Whether any such duty was breached;
(c) Whether liability should extend to the appellant’s injuries.
The High Court held that police officers owed a duty to exercise reasonable care in undertaking crowd control to avoid physical injury to ‘members of the crowd and bystanders who were foreseeably at risk’. The High Court rejected a narrower formulation of the duty adopted by the Court of Appeal, which confined the duty to persons in the ‘immediate vicinity’ of police action.
The High Court did however agree with the Court of Appeal that there was no breach of duty. Applying section 5B of the Civil Liability Act (NSW) 2002, the Court accepted that the risk of harm from crowd confusion and panic was foreseeable and not insignificant; however, the decisive question was whether a reasonable person in the position of the police officers would have taken different precautions. In this respect, the appellant argued there were three alternatives: taking no action; announcing police presence before intervening; or sending a single officer into the crowd.
These alternatives were rejected.
The High Court said doing nothing was not reasonable given the perceived risk of a fire; slower or less forceful action would not have been ‘decisive’ or effective; and a single-officer approach posed safety risks and was insufficient. The High Court also emphasized the operational context: namely that the officers acted in a ‘dynamic and unpredictable context’ involving rapidly unfolding events.
The High Court observed that the seriousness of potential harm from a fire, together with the urgency of the situation and the social utility of preventing danger to the crowd, were all factors which supported a finding that the response by police, though forceful, was within the range of reasonable conduct. As Edelman J observed (citing Leishman v Thomas (1957) 75 WN (NSW) 173 at [175]):
“Where the end to be served is the saving of life or limb, and particularly where that end is a duty of the defendant, in circumstances of urgent action considerable latitude will be afforded in the assessment of the response of a reasonable person.
… it will not be a breach of duty if, in the “agony of the moment”, a person makes an error of judgment which “wiser counsels and more careful thought would have suggested was unwise”. This is particularly so in an emergency, where a person is not required to “exercise … that mature judgment required … under circumstances where [there is] an opportunity for deliberate action”.
In other words, the assessment of what is reasonable must be considered in the context of the prevailing circumstances, and in emergencies, the law does not demand perfect judgment.
Although unnecessary to decide given the finding on breach, the High Court also addressed the role of third-party conduct, observing that intervening criminal acts may not break causation where they are ‘the very kind of thing likely to happen’ following the defendant’s conduct.
However, since no breach was established, the question of causation did not ultimately arise for determination.
This decision serves as a reminder that police are subject to the ordinary principles of negligence, particularly where their conduct creates a risk to the public. However, there is a high threshold for establishing breach in emergency situations. The High Court showed considerable deference to the realities of crowd control and emergency decision making, recognising the need to balance the accountability of public authorities with the practical pressures of maintaining public order.
Decisions made in the ‘agony of the moment’ should not be judged with the benefit of hindsight, but by reference to what was reasonable at the time.
