State of New South Wales v Cullen

1. [1]

   GLEESON AND KIRK JJA: The respondent in this matter, Ms Laura Cullen, suffered serious injuries whilst watching an “Invasion Day” protest march, on 26 January 2017, on Broadway just outside the Sydney CBD. She was knocked down by a police officer, Leading Senior Constable Damian Livermore (referring to his position at the time), in the course of his arresting a person who identifies themselves as Mx Hayden Williams. Williams had just assaulted another police officer, Constable Amy Lowe. The respondent brought proceedings in the Supreme Court claiming against the State of New South Wales – bearing liability on behalf of the police involved – in the torts of negligence and battery. She alleged that officers of the Operational Services Group (“OSG”) had breached a duty of care extending to her when they rushed into a crowd to prevent an Australian flag being set alight with lighter fluid. The melee that followed prompted Williams to assault Lowe to prevent her videoing what was occurring. The respondent further alleged that Livermore (a) breached such a duty of care in the manner in which he sought to arrest Williams and (b) committed the tort of battery against her.

2. [2]

   The parties agreed that if either tort was made out then damages of $800,000 would be payable. The primary judge, Elkaim AJ, held that the State was liable on the basis that the officers of OSG and Livermore had each, in different ways, breached a duty of care that they owed to the respondent: Cullen v State of New South Wales [2023] NSWSC 653 (“PJ”; references here to his Honour’s decision are to the version online at NSW Caselaw). His Honour rejected the battery claim on the basis that Livermore’s arrest of Williams was lawful.

3. [3]

   The State now appeals from that decision. It argues that: neither the OSG officers nor Livermore owed a duty of care as found (grounds of appeal 1-3); that in any event no breach of such a duty was made out (grounds 4-7); and that even if the OSG officers had breached such a duty the causal chain to Ms Cullen’s injuries was broken by the intervening actions of Williams (grounds 8-9). The breach issues raise a question as to whether s 43A of the Civil Liability Act 2002 (NSW) (“CLA”), which lowers the required standard of care for exercise of certain special statutory powers, applies to the actions of the OSG and Livermore. The primary judge had held that it did but that its stringent requirements were met. Ms Cullen has filed a notice of contention claiming that the primary judge erred in finding that s 43A applied (ground 3), and further asserting that on the factual findings made by the primary judge she was entitled also to succeed in her battery claim as regards Livermore (grounds 1-2).

4. [4]

   For the reasons that follow we conclude that s 43A of the CLA Act did not apply; that while the OSG officers and Livermore may have owed a duty of care to a class of persons which included the respondent it was not in the terms found by the primary judge, and that any duty they did owe was not breached; that even if the primary judge had been correct on the issues of duty and breach the causal chain would have been broken as regards liability for the actions of the OSG officers; and that the claim in battery is not made out. The appeal must therefore be upheld.

5. [5]

   It is convenient to address the issues raised in the following order:

   1. (1)

      facts (at [6]-[33]);

   2. (2)

      whether s 43A of the CLA applied to the actions of the OSG officers and Livermore (at [34]-[55]);

   3. (3)

      the alleged breach of duty by the OSG officers (at [56]-[88]);

   4. (4)

      the alleged breach of duty by Livermore (at [89]-[92]);

   5. (5)

      causation as regards the actions of the OSG officers (at [93]-[110]); and

   6. (6)

      the claim in battery (at [111]-[116]).

Facts

1. [6]

   A core duty of a trial judge is to resolve relevant disputes about, and make findings as to, the pertinent facts. That duty was only partially fulfilled in this case. Under a heading “Evidence” the primary judge referred to the evidence in the order in which it was given but did not resolve disputes of fact on some material points. Neither party suggested that there should be a retrial. Thus to the extent his Honour failed to find facts relevant to the issues raised on appeal, the task falls to this Court.

2. [7]

   The background facts are set out in the judgment of White JA at [136]-[150] below and will not be repeated here save to the extent necessary.

3. [8]

   As noted there, it was a condition of the police authorisation of the rally that “[t]here will be no flag or effigy burning”. The following points are relevant to place in context the concern of the police about such occurring:

   1. (1)

      There had been a similar “Invasion Day” rally held on 26 January 2016. On that occasion there had been an attempt to burn an Australian flag on the steps of Redfern Town Hall, and a participant had taken burning leaves into Redfern Police Station activating smoke alarms and causing a fire hazard.

   2. (2)

      The police officer responsible for planning and coordinating the police preparations for the 2017 rally was Acting Inspector Luke Baker who was based at Redfern Police Station. He was acting under the supervision of Superintendent Luke Freudenstein. It was Baker who drafted the letter of 18 January 2017, signed by Freudenstein, which indicated that the police were prepared to approve the application to hold the march so long as various conditions were agreed to, including that there be no flag or effigy burning. The letter referred to the previous burning incident at Redfern Police Station as one of “a number of safety concerns”. Baker gave unchallenged evidence that his overriding objective in drafting the letter was the safety of the community.

   3. (3)

      The main organiser of the march was Mr Raul Bassi. He did not give evidence. It is implicit that Bassi agreed to the proposed conditions. It is apparent that Bassi did a poor job of making these conditions known to other organisers of the march, let alone to participants. Another condition imposed had been that the conditions of the march be published on the organisers’ Facebook page. Yet Mr Kenneth Canning, another organiser of the march, had not seen the conditions the police imposed and was unaware of the condition relating to flag and effigy burning. Nor was another organiser of the rally, Mr Padraic Gibson, aware of the conditions.

4. [9]

   It is apparent that Baker had a particular concern about fire, taking account of what had happened the previous year. That concern was motivated by considerations of safety. Canning gave evidence that he was “shocked” to see some of the police officers at the rally were carrying fire extinguishers. Similarly, Gibson gave evidence that the Australian flag had been burned during the equivalent 2016 march “close to Town Hall”, without incident. In this context he said “I expected it to be the same at the 2017 Rally. That is the flag would be burned and everyone just moves on”. Given the conditions that had been placed upon the march, and the letter sent to Bassi, neither should have been surprised by the police concern.

5. [10]

   Baker prepared “Operational Orders” for the rally to direct police operations. He included information in those orders about the fire incident at Redfern Police Station in 2016. He gave unchallenged evidence that he did so because he was concerned that participants in the rally would attempt to start a fire and that this could pose a safety issue for participants, police and the general public. Annexure F to the Operational Orders was the “Actions On” document, addressing “a list of potential issues that may impact on this event”. One of those issues was “Fire – burning flags, effigies or other articles, flares etc”, under which the following was stated:

6. [11]

   It is not apparent which person or persons constituted the “Team/Field Supervisor”. At the least it would have included Baker, who was designated the “Forward Commander” in the Operational Orders, with Freudenstein termed the “Police Commander”. The term likely included others. The Orders identified other people as, for example, “Traffic Supervisor” and “team leader”.

7. [12]

   Bassi had told police he expected some 1,500 participants. The Operational Orders noted that some 2,000 people had indicated that they would attend, seemingly through Facebook. Witnesses gave various estimates of the actual attendance of between 2,000 and 10,000 (which was Gibson’s estimate). Baker’s estimate of 5,000 people seems likely to be about right, given his experience and that it is in the middle of the range.

8. [13]

   The agreed plan for the rally was that it would stop in certain places in order to allow speeches to be delivered. The stop on Broadway near the University of Notre Dame Australia, where the events in question occurred, was not planned. Canning gave evidence that as far as he knew it was not pre-planned that Mr Birrugan Dunn-Velasco would speak. Dunn-Velasco’s speech was videoed by Lowe, who had been allocated the role of videoing the rally. She had been directed to pay particular attention to any person committing offences or breaching conditions of the march. Lowe gave evidence that Dunn-Velasco had been pointed out to her earlier in the rally by a police sergeant unknown to her. Dunn-Velasco was carrying a red container at the time which the sergeant told her contained lighter fluid. The sergeant told her to film him. Lowe’s video ends when the camera was knocked out of her hand by Williams, after the OSG officers had used their fire extinguishers. Part of Dunn-Velasco’s speech was also videoed by someone apparently working for Buzzfeed.

9. [14]

   Dunn-Velasco spoke using a microphone, amplified through some portable loudspeakers. Part of the crowd was gathered around him. There was some space around him as he spoke, in which he was pacing. At that point Baker was informed by police that Dunn-Velasco may light a flag. Consistently with Lowe’s evidence about a sergeant having warned her earlier about Dunn-Velasco having lighter fluid, Baker gave the following evidence:

10. [15]

    It is relevant to note at this point that Baker was not challenged in cross-examination on this evidence, or indeed on most of his statement. The cross-examination mainly focused on the issue of what police had been told in their pre-rally briefing and whether the Operational Orders had been distributed to police. There is no reason to doubt the substance of Baker’s evidence of what occurred. It is supported by an “Operations Log” which, Baker explained, was recorded contemporaneously by a Sergeant Muscat who was monitoring radio and phone communications together with Freudenstein in the Police Operations Centre. None of the OSG officers gave evidence.

11. [16]

    Baker’s evidence then was that at 1:12pm and again at 1:14pm he spoke to Bassi, asking him to speak to Dunn-Velasco to ensure there was a peaceful protest and, by plain implication, to ask him not to burn a flag or effigy. Bassi said on the first occasion that “I will talk to him but I don’t think he’ll listen to me”. Whether or not Bassi attempted to do so, at around 1:16pm Dunn-Velasco ended his speech with the words “I am going to do something about it”, after which he bent down twice (as shown on the Lowe video). The Buzzfeed video shows him bending down (being the second time he did so on the Lowe video) and squirting liquid onto an Australian flag, which is about the size of a pillow case. Other people are in close proximity. At that point the OSG officers rapidly entered the crowd. The Buzzfeed video suggests no fire had been lit. The primary judge considered that two fire extinguishers had been discharged (PJ [75]). It is not clear to us that that is so, and the respondent said in submissions to this Court that “[a]t least one of those officers discharged the fire extinguisher”. In any event, this detail does not seem to matter.

12. [17]

    Baker explained that OSG police officers were “trained in riot and public order management” and were “basically a support group to the public order and riot squad”. He said that to the best of his recollection they were a team of seven, with one or two carrying fire extinguishers, of which he thought one had been deployed during this incident. Baker said the OSG officers walked into the crowd. Livermore said they “move[d] quickly”, which is a better description judging from what can be seen on the video Lowe took. They seem to have pushed through the crowd fairly rapidly in order to get to Dunn-Velasco. The fire extinguisher/s emitted a chalky, smoky cloud. Gibson gave evidence, which can be accepted, that the air “became thick with gas and a chemical smell”. He also said that he did not hear the police give any warning or announcement that they were about to run into the crowd, and there is no evidence suggesting to the contrary.

13. [18]

    The Buzzfeed video indicates that Dunn-Velasco seems to have tried to keep the flag away from the OSG officers. In any event, within a few seconds there was significant pushing going on – by officers against Dunn-Velasco and people around him, and vice-versa. Many members of the crowd in the area became angry. It may be that some of them were also somewhat panicky.

14. [19]

    Lowe estimated that she was 10-15 metres away from Dunn-Velasco when he knelt down. Williams gave evidence that it was about 30 metres. Lowe’s upper estimate of 15 metres appears consistent with the video footage she took (even accepting that videos can zoom in) and can be accepted.

15. [20]

    There is no video footage showing the course of events between Williams, Lowe, Livermore and the respondent, although there is some footage of the respondent being on the ground afterwards. The respondent herself had no memory of the relevant events due to her injuries. There were otherwise five witnesses who gave evidence about this set of events: Williams; Lowe; Livermore; Ms Eimhear Glackin, who was a friend of the respondent attending the rally with her; and another police officer standing near Lowe, Constable Melissa Halstead. The primary judge made no clear findings about these events, despite the fact that the accounts differ somewhat and the details may be important.

16. [21]

    There is no dispute that Williams saw Lowe videoing what was occurring as the OSG officers went to use the extinguisher/s. Williams “slapped the camera out of Constable Lowe’s hand” (to quote Williams’ evidence), causing the camera to fall and the battery to separate from the camera. Livermore’s evidence was that he (Livermore) had been standing “a couple of metres” away from Lowe at this point, and there is no reason to doubt that. There is no dispute that Livermore then moved towards Williams to effect an arrest, that Williams moved away and Livermore followed and sought to grab and arrest Williams, with them eventually both falling down, knocking over the respondent as they did so. The respondent fell heavily, with her head hitting the ground, causing the injuries for which she seeks damages.

17. [22]

    Williams was charged later that day with three offences: assault police in the execution of duty contrary to s 60(1) of the Crimes Act 1900 (NSW), resisting Livermore in the execution of duty, and damage to property. Williams seemingly pleaded guilty to the property charge, was found guilty of the assault charge, and was found not guilty of the resist charge. It seems that a bond was imposed without a conviction being recorded for the two offences of which Williams was found guilty. Whether or not that was an appropriate penalty is not a matter for this Court. On any view Williams’ action was a significant, unprovoked criminal assault of a police officer whilst acting in the exercise of her duty. The primary judge held that Livermore’s arrest of Williams was lawful in compliance with the requirements for exercising the power of arrest set out in s 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) (PJ [152]-[162]). That conclusion was not challenged by the respondent.

18. [23]

    Material matters on which there was some conflicting evidence were whether Williams was running to get away, how Livermore sought to execute the arrest, and whether and to what degree members of the crowd intervened in the attempted arrest.

19. [24]

    Williams claimed to have only taken a few steps away from Lowe immediately after the assault (moving “into the crowd”). Williams claimed not to have been running or trying to flee, but said in cross-examination they were having a “fight or flight” response “before and during this entire encounter”, and were “trying to get away from feelings of fear and anger towards me”. Glackin said Williams “looked like he was trying to get away”. Halstead did not give evidence on this issue. Lowe’s evidence was that Livermore walked in front of her to grab hold of Williams, who then pushed back and sought to run away. Livermore’s evidence was that Williams “went to run back into the crowd” and “I was concerned he was running away and would disappear into the crowd”. Taking account of what Williams accepted in cross-examination, it is reasonable to conclude that Williams was seeking to get away from the scene as quickly as possible, even if never managing to get into a run.

20. [25]

    As to what occurred when Livermore sought physically to arrest Williams, Glackin said she had seen no violence towards the police (thus she had not seen Williams hitting Lowe). She said the police officer then “rugby tackled the young lad to the ground”. She used the phrase “rugby tackle” repeatedly in cross-examination. That oft-repeated phrase does not throw much light on the detail of what occurred.

21. [26]

    Halstead’s view was partially obstructed “by a number of protesters”. She said she saw Williams swing around (but was not sure how this had occurred), making firm contact with the respondent, causing her to fall. Halstead’s evidence, too, does little to resolve precisely what occurred.

22. [27]

    Williams did not give a detailed description of the manner of arrest, but said that Livermore without warning “grabbed me and swung me around”; “I had no control over my body as I was swung”; and in being swung, came into contact with the respondent. Williams was asked if other people had tried to assist them getting away from Livermore but did not recall that, saying “I don’t know” when asked if it was possible.

23. [28]

    Lowe said in her written statement for the proceedings that there had been protestors trying to pull Williams away from Livermore and it was that which caused the two of them to fall. She had prepared a statement on the day itself for the purpose of the charges against Williams. In that statement she said people in the crowd were pulling Williams “which made it difficult for Livermore to get him out of the crowd”. The statement then says Livermore did manage to pull Williams to the edge of the crowd but this resulted in the knock to the respondent. This statement does not mention the crowd being the immediate cause of the fall. In cross-examination Lowe said she could not recall the actual fall.

24. [29]

    Livermore gave evidence that the crowd had been seeking to pull Williams away, but did not suggest this was the immediate cause of the fall. He said this in his statement in the proceedings:

25. [30]

    In cross-examination Livermore accepted that he had issued no warning or request to Williams. He described what he did as a “grab” and did not accept it was a “tackle”.

26. [31]

    In submissions to this Court senior counsel for the respondent said that “we are content to rely on Livermore’s own description of what he did”. That was a sensible position to adopt. It is the most detailed description of any of the witnesses and Livermore seemed to have a better memory of events than Williams. Livermore’s statement that he tried to turn Williams around is consistent with the evidence of Williams being swung, though Livermore himself preferred to describe it as a “turn” and not a “swing”. The description is consistent with what Lowe said in her contemporaneous statement. The description of events by Livermore just quoted thus should be accepted. Although this description does not suggest that pulling by the crowd was the immediate cause of the fall, it seems likely that the time between Livermore first trying to grab hold of Williams and them both falling was no more than a matter of seconds. That understanding is consistent with the evidence of all of the relevant witnesses.

27. [32]

    It is apparent that there were a number of people in the immediate vicinity when the arrest of Williams occurred. Halstead referred to her view of the arrest being obscured by protesters. There were protesters seeking to pull at Livermore and Williams. And the respondent and Glackin were themselves close by.

28. [33]

    The respondent gave evidence that she had attended the rally “as a spectator” together with Glackin and members of Glackin’s family. Glackin simply gave evidence that she and the others had “attended the rally”. There is no particular reason to distinguish here between people who considered themselves participants or spectators in the rally. Either way, such people were voluntarily attending a legal public event.

The application of s 43A

1. [34]

   Section 43A of the CLA provides:

2. [35]

   The section is within Pt 5 of the CLA. Pursuant to s 40(1) that part applies to “civil liability in tort”, subject to the particular provisions in s 40(2) and (3). It was not disputed that Pt 5 applied here. There was also no dispute that members of the police force fell within the notion of “a public or other authority” (noted PJ [136]).

3. [36]

   The primary judge took the view that s 43A applied to the impugned actions of both the OSG officers and those of Livermore (PJ [138] and [173]), though no reasons were given for that conclusion. The respondent challenges that conclusion in her notice of contention. The primary judge went on to hold that the impugned actions failed the attenuated standard set by the provision. That conclusion is challenged by the appellant, which argued that his Honour had misapplied the provision.

4. [37]

   The appellant pleaded in its defence that s 43A applied with respect to the arrest undertaken by Livermore, but it did not raise the actions of the OSG officers. However, the section was invoked in relation to both aspects of the case in the appellant’s closing submissions below and the respondent has not objected to the appellant relying on it in this way on appeal.

5. [38]

   Section 43A articulates two connecting notions between the claim made and the exercise of, or failure to exercise, a special statutory power. Section 43A(1) says that the section applies to “proceedings” for civil liability to which the Part applies “to the extent that the liability is based on” the authority’s exercise or non-exercise of such a power conferred on the authority. Then the operative provision, subs (3), applies the standard identified there to “any act or omission involving” an exercise/non-exercise of such a power. It is not immediately apparent that there is any substantive difference between the two connecting notions: note Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [173]; cf Gales Holdings Pty Limited v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 at [196].

6. [39]

   If there were to be any material difference between the two then it is the “based on” criterion which at first blush would be more demanding. That notion looks to the acts or omissions giving rise to the cause of action: Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [244]. This Court has recently said that “[i]f a special statutory power is exercised negligently, or if it is alleged that it was negligent not to exercise a special statutory power, then the action for negligence is one that is based on the exercise or failure to exercise a special statutory power”: Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227 at [179]. It is implicit in this understanding that it is necessary that a special statutory power has been exercised in a way which the claimant impugns, or has not been exercised where the claimant asserts it should have been. In other words, the acts or omissions impugned for the purposes of the cause of action must involve the exercise or non-exercise of the special statutory power. No doubt the exercise or non-exercise must be a material or significant aspect of the claim for the standard specified in the section to be applicable. Put simply, the “based on” requirement can be understood as whether the acts or omissions said to found the civil liability in question were ones which involved, in a significant way, the exercise of a special statutory power. So understood, the two connecting notions coalesce.

7. [40]

   A special statutory power is one that satisfies the two criteria in s 43A(2). It is not enough that a statutory power was being exercised for the section to apply. It is necessary that that power fall into a particular class of such powers, being powers of a kind that persons generally are not authorised to exercise without specific statutory authority. That requirement will commonly direct attention to what ordinary persons are legally able to do at common law (in the sense of general law) without requiring statutory authorisation. Given that in our legal system natural persons are free to do anything not contrary to law, the issue will often hinge on whether there is a common law restriction on doing the type of thing in question. However, in some cases there will be a general statutory prohibition on doing that kind of thing. If a person was specially authorised by statute to do the kind of thing despite that prohibition then the requirement in s 43A(2)(b) would be satisfied: see eg Curtis at [254].

8. [41]

   Some governmental actors are created by statute and derive their powers and functions entirely from statute: note NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 at [53]-[54]. That characteristic does not mean that all the actions of such a body would fall within the scope of s 43A. For example, if such a body made a public statement (not being one given special legal effect by some statutory provision) it would be exercising a power to do something that any person could do without the need for statutory authorisation, thus it would not satisfy the requirement in s 43A(2)(b): note Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [364]-[370]. Similarly, when a fire brigade unit drives to a fire it is doing something that does not require specific statutory authorisation: note Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961] HCA 71.

9. [42]

   Turning to the facts here, the impugned acts of the OSG officers were, in the words of the primary judge, “rushing unannounced into the crowd with fire extinguishers operating” (PJ [134]). The appellant did not clearly identify any statutory powers being exercised by those officers in doing so. It referred to the actions being a response to an apprehended breach of the peace. But the officers’ power in that regard is derived from the common law, not statute. As the appellant itself emphasised, s 4 of LEPRA implicitly recognises (without conferring) such powers in providing that that Act does not limit “the functions, obligations and liabilities that a police officer has as a constable at common law” or “the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property”. Section 14(1) of the Police Act 1990 (NSW) provides to a similar effect.

10. [43]

    The appellant referred to s 230 of LEPRA, which provides that it is “lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing … to use such force as is reasonably necessary to exercise the function”. The State had earlier spoken of ss 230-231 “conditioning … the conferral of powers” (s 231 relates to police using force to make an arrest). That is an appropriate characterisation of the provisions. They presuppose power is granted elsewhere and authorise a particular manner of acting when such a power is exercised. It is not necessary here to resolve whether the police should be characterised as exercising statutory power when using reasonable force as authorised by s 230 in exercising a common law power to respond to an apprehended breach of the peace. Even if it were so characterised, what was impugned about the actions of the OSG officers was not any use of force. Rather, what was impugned was their rushing towards Dunn-Velasco and using one or more fire extinguishers on the flag, which it was said caused a crowd reaction, which led to the actions of Williams, which led in turn to the harm to the respondent. Thus invocation of s 230 is not to the point.

11. [44]

    The State made a vague allusion to the police acting to enforce the conditions of the authorisation of the march, saying that “participating in an assembly not authorised pursuant to Pt 4 of the Summary Offences Act 1988 (NSW) could constitute an offence pursuant to s 545 of the Crimes Act”. Section 545 of the Crimes Act was repealed in 1974. Presumably the State meant to refer to s 545C(1) of that Act, which provides that anyone who “knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly” and commits an offence. However, it has long been held that the term “unlawful assembly” is exclusively defined for the purposes of s 545C in subs (3) of that section: Ex parte Aubin; re Munday (1930) 30 SR (NSW) 169; Corkery v Black (Court of Appeal, 2 August 1989, unreported, BC8901886). It is not the case that an assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act is, by that reason alone, an “unlawful assembly” for the purposes of s 545C. It should also be noted that one of the consequences of not being an “authorised public assembly” is that the police power to issue “move-on” type directions under Pt 14 of LEPRA is restricted. On no view were the OSG officers exercising such a power.

12. [45]

    The State also invoked s 6(2) of the Police Act which states that the “NSW Police Force has the following functions…”. The enumerated functions include “to provide police services for New South Wales”, being a term defined in s 6(3) to include “the protection of persons from injury or death, and property from damage”. If this is a grant of powers to police officers at all – an issue it is not necessary to consider – it is of a very generic kind.

13. [46]

    In any case, even if the OSG officers were exercising statutory power, rushing forward and using a fire extinguisher to put out or prevent a fire are actions anyone can do without specific statutory authority. And that is so regardless of whether or not the actions are characterised as responding to a breach of the peace. There was thus no special statutory power being exercised. The primary judge erred in implicitly finding to the contrary.

14. [47]

    With respect to the actions of Livermore, despite the prolixity of the respondent’s particulars of negligence the gravamen of her case was simple. As it was put by the primary judge, “there was a duty of care which made him susceptible to an allegation of negligence in the manner in which he arrested Mx Williams” (PJ [170]). His Honour’s conclusion on the issue was expressed in this way: “The forceful arrest of Mx Williams within the crowd and without a need to prevent further offending, or stop current offending, amounted to a reckless exercise of the power of arrest” (PJ [175]). His Honour had earlier held that the arrest was a lawful exercise of the power of arrest granted to police officers by s 99 of LEPRA (PJ [152]-[162]).

15. [48]

    An arrest is a deprivation of liberty. Any such deprivation requires specific lawful authority – “[n]o person is entitled to impose any physical restraint upon another except as authorised by law”: Bales v Parmeter (1935) 35 SR(NSW) 182 at 188; see also eg Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12. Subject to consideration of common law powers of arrest, such a power is of a kind that persons generally are not authorised to exercise without specific statutory authority.

16. [49]

    The respondent noted that s 100 of LEPRA confers a power of arrest on persons other than police officers to arrest someone without a warrant if the person has just committed an offence under an Act. However, as the respondent accepted, the argument merely illustrates the need for specific legal authorisation. The issue posed by s 43A(2)(b) is not whether the power conferred by statute on the public authority is only conferred on public authorities.

17. [50]

    The respondent’s main argument was that any person could have arrested Williams for having just committed a breach of the peace by assaulting Lowe, relying on powers granted by the common law. The case law cited related to taking steps to prevent an apprehended breach of the peace: Albert v Lavin [1982] AC 546 at 565; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [10]. Williams was not arrested because of any such apprehension, nor because of any breach of the peace per se, but because of the criminal assault of Lowe that had just occurred. Livermore’s evidence – implicitly accepted by the primary judge in upholding the lawfulness of the arrest – was that “I formed the view that Mr Williams had assaulted Constable Lowe by striking her arm and that he should be arrested”. More to the point thus is case law relating to an ordinary person’s power of arrest with respect to a crime that has just been committed. This was an issue not explored in any depth by either party.

18. [51]

    At common law police officers could arrest a person whom they suspected, with reasonable cause, of having committed a felony: Bales v Parmeter at 188-189; Robinson v State of New South Wales (2018) 100 NSWLR 782; [2018] NSWCA 231 at [137]. The New South Wales Law Reform Commission summarised the common law position more generally as follows (Criminal Procedure: Police Powers of Detention and Investigation after Arrest, Report No 66, 1990; citations omitted):

19. [52]

    It is not necessary to address the extent to which an assault just committed in the presence of a person will also enliven a power of arrest for having committed a breach of the peace in circumstances where there is no basis to apprehend a renewal of the breach: note R v Howell [1982] QB 416 at 426. It is sufficient to address the power to arrest for a felony.

20. [53]

    Section 580E(1) of the Crimes Act abolished the distinction between felony and misdemeanour in this State. Under s 580E(4) a reference in any statute to a felony is taken to be a reference to a “serious indictable offence”, which term is defined in s 4(1) of that Act to mean a crime punishable by imprisonment for life or for a term of 5 years or more. In this context, it is appropriate to treat any “serious indictable offence” as equivalent to a felony in considering the common law power of arrest. Under s 60(1) of the Crimes Act the offence of assaulting a police officer while in the execution of the officer’s duty, without causing actual bodily harm, is liable to a term of imprisonment of up to 5 years. That was the offence of which Williams relevantly was found guilty. Williams thus committed a crime that was a serious indictable offence and which can be characterised as a felony. It would therefore have been open to an ordinary member of the public to arrest Williams. Thus it was not the case that when Livermore was arresting Williams he was exercising a power that persons generally are not authorised to exercise without specific statutory authority. Section 43A therefore did not apply.

21. [54]

    Ground 3 of the respondent’s notice of contention should thus be upheld. Neither the OSG officers nor Livermore was exercising a power to which s 43A of the CLA applied.

22. [55]

    For completeness it should be noted that if the contrary conclusion had been reached then it would be clear that the primary judge misapplied s 43A. The respondent made little effort to argue to the contrary. His Honour asked himself if the OSG officers and Livermore had acted “recklessly” in doing what they did (PJ [138], [141] and [173]). That is not the standard set by s 43A.

The alleged breach of duty by the OSG officers

1. [56]

   The parties diverged at trial and on appeal as to the existence and scope of any duty of care owed to the respondent by either the OSG officers or Livermore, for whose conduct the appellant was vicariously liable. The State further contended that the primary judge erred in finding that the OSG officers breached any duty of care owed by them to the respondent by their response to Dunn-Velasco’s attempt to burn a flag during the “Invasion Day rally” (ground 4). It is said that this finding contained error because the primary judge considered the wrong risk of harm, and wrongly judged the OSG officers’ actions with hindsight. It is convenient to address the issues of the existence, scope and breach of duty together.

2. [57]

   The respondent pleaded in par 19G of her amended statement of claim that a duty of care was owed where the relevant risk of harm was a foreseeable risk that the respondent might suffer injury by reason of:

3. [58]

   The State did not admit any duty, nor this articulation of the risk of harm.

4. [59]

   In closing submissions, the appellant took the position that although the respondent put the risk of harm in two ways, it was only the first of those risks which actually applied to the factual situation of this case, given the relationship between the respondent’s injury and Livermore’s arrest of Williams.

5. [60]

   The respondent’s closing submissions departed from the pleaded risk and identified the risk of harm with respect to the conduct of the OSG officers as the risk that the crowd would react unfavourably and become unruly such that the police would lose control of the situation when it escalated with the result that people could be knocked over in the chaos and attempts to control the same.

6. [61]

   The primary judge reasoned at [132] that the circumstances of the present case were closely analogous to those in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; [2018] UKSC 4. Robinson involved the arrest of a suspected drug dealer in a public place, during which two police officers and the suspect who were struggling with one another knocked over a frail and elderly lady. Lord Reed speaking for the plurality said (at [74]):

7. [62]

   Lord Mance said of the duty of care owed by the police in circumstances of direct physical interface between the police and the public in the course of an arrest (at [97]):

8. [63]

   Having referred to Robinson, the primary judge stated:

9. [64]

   The risk of harm identified by the primary judge was “a risk of harm consequent upon the OSG officers rushing unannounced into the crowd with fire extinguishers operating” (at [134]). His Honour stated that such risk was not insignificant, and that the precautions which a reasonable person (in the position of the OSG officers) would have taken to avoid the risk were as follows (at [134]):

10. [65]

    The primary judge found the duty breached, albeit applying the standard set by s 43 of the CLA, concluding that the OSG officers acted “recklessly or unreasonably”: at [138]. With reference to the “Actions On” document (see above at [10]), his Honour said:

11. [66]

    His Honour then found:

12. [67]

    We agree with White JA that the primary judge was correct to reject the appellant’s submission that the OSG officers owed no duty of care to any class of persons with respect to the “Invasion Day” protest march held on 26 January 2017. We agree generally with his Honour’s reasons for that conclusion subject to what follows.

13. [68]

    Two key issues arise as to the scope of the duty: to whom was it owed, and what did it involve in the sense of what risk of harm did they need to take reasonable steps to avoid? The issues are linked: note further Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135 at [9]-[14].

14. [69]

    The importance of the correct identification of the relevant risk of harm when identifying the scope of a duty of care has been repeatedly emphasised in the authorities. In Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102], Leeming JA (Basten and Simpson JJA agreeing) said:

15. [70]

    Similarly, in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 at [106], the joint judgment of Gordon, Edelman and Gleeson JJ stated:

16. [71]

    White JA is of the view that the duty of care owed by the OSG officers was to the class of persons described as “bystanders who might be affected by a breach of the peace” (see [199] below). We respectfully differ with the breadth of that description. The ascertainment of the persons to whom the OSG officers owed a duty of care is closely connected with the identification of the risk of harm in regard to the conduct of the OSG officers, being a risk that is foreseeable, not insignificant, and in response to which a reasonable person in the position of the OSG officers would have taken precautions (which we discuss further below): s 5B of the CLA.

17. [72]

    We prefer to state the duty of care owed by the OSG officers as a duty to take reasonable care to avoid the risk of harm (as identified below) to the class of persons in the immediate vicinity of an operational response by OSG officers during the protest march, thus linking the identified class to the relevant risk. Doing so is also not far-removed from how senior counsel for the respondent described the duty in oral submissions to this Court, namely a duty “to take reasonable care, when performing that function, not to cause harm to those who are in close physical proximity to where Mr Dunn-Velasco was”. The “function” he referred to had earlier been identified as “the functions being performed at the relevant time”.

18. [73]

    The parties diverged on appeal as to the degree of specificity of the risk required to be considered under s 5B of the Civil Liability Act. The State points out, correctly, that the risk identified by the primary judge is a different risk to that pleaded by the respondent, and that the risk of which the primary judge spoke – “a risk of harm consequent upon the OSG officers rushing unannounced into the crowd with fire extinguishers operating” – did not in fact specify what risk of harm the primary judge was referring to.

19. [74]

    The appellant submitted that the relevant risk of harm which ought to have been considered was the risk of the respondent being injured during an arrest of a person who had assaulted a police officer (not being one of the OSG officers). It is said that risk of harm was not a “foreseeable” risk of the OSG officers’ actions, in the sense that the OSG officers knew, or ought to have known, of the risk and the risk was not insignificant. According to the submission, the primary judge ought to have found applying s 5B that the OSG officers were not negligent.

20. [75]

    The respondent submitted that the risk of harm identified by the appellant was erroneous because it identified at too high a degree of specificity the risk required to be considered under s 5B. We agree with that criticism to the extent that the risk of harm identified by the appellant is in regard to the conduct of the OSG officers. Accepting that the OSG officers owed a duty of care to the class of persons in the immediate vicinity of an operational response by OSG officers during the protest march, the appellant’s identification of the risk of harm is directed to the conduct of Livermore in making the arrest, not the relevant conduct of the OSG officers.

21. [76]

    The respondent also submitted that it was readily foreseeable that, in rushing into the crowd as they did, the OSG officers would create a situation of panic leading to further physical interactions between police officers and members of the crowd. It is said that the risk, in those circumstances, that members of the crowd would be knocked to the ground was hardly farfetched. The difficulty with identifying the risk of harm in regard to the OSG officers as “that members of the crowd would be knocked to the ground” is that it is too general or high level.

22. [77]

    That difficulty was compounded in oral argument. Senior counsel for the respondent identified the risk of harm variously as:

23. [78]

    He then went on to submit that the identification of the risk of harm in par 19G of the pleading is probably sufficient for the respondent’s purposes.

24. [79]

    In our view the primary judge erred in identifying the relevant risk of harm in regard to the conduct of the OSG officers in the way he did. Mindful of not expressing the risk of harm at a level which is either too general or too specific, we would identify the risk of harm as the risk of the OSG officers’ actions inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march.

25. [80]

    There are several difficulties with the primary judge’s finding at PJ [141] that “the actions of the OSG team 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”. Those difficulties arise even if the risk of harm is not identified in precisely the terms just stated.

26. [81]

    First, his Honour failed to have regard to the obligations of OSG officers to take action to prevent breaches of the peace, even in crowded situations. That was in circumstances where his Honour accepted the evidence of Baker which justified the OSG being put on alert and being ready to extinguish any fire: at PJ [77]. As explained above, Baker’s evidence was that he did have concerns about the risk posed to the crowd by an attempt to light a flag, that he requested the OSG officers to respond to that threat, and that he asked the organisers of the protest march to prevent the lighting of the flag, but was told by Bassi that he did not think Dunn-Velasco would “listen to me” (see also PJ [76]). It was never suggested to Baker in cross-examination that he did not genuinely have concerns about the risk posed to the crowd by an attempt to light a flag. Moreover, the respondents’ expert, Mr Halpin, a former general police duty officer with six years’ experience, accepted in cross-examination that it was reasonable for the police to exercise their powers decisively and pre-emptively to prevent the lighting of the object.

27. [82]

    Second, the precautions which his Honour suggested the OSG officers should have taken in responding to the risk of harm suffer from two difficulties. One is they ignored the conflicting obligations of the OSG officers to prevent breaches of the peace even in crowded situations. The other is that the suggested precautions were impractical.

28. [83]

    The first suggestion that the OSG officers simply announce their arrival to the crowd (surrounding Dunn-Velasco) ignored the reality of the situation confronting Baker and the OSG officers having decided to act to prevent the lighting of the flag in the presence of a crowd which were part of the protest march. That reality was that Baker had asked the organiser to prevent this occurring but was told that he was unable to do that.

29. [84]

    The second suggestion that a “single officer with a fire extinguisher walking through the crowd to arrive at the scene of the possibly impending ignition” ignored the competing considerations when police decide to undertake an operational response to prevent a danger to the public, here, by reason of the attempted lighting of the flag in the presence of a crowd which were part of the protest march. Plainly, there were risks to the safety of the police officer(s) concerned in such a response. The OSG officers needed to make a rapid decision in the field as to the appropriate number of police officers that should attempt to push through the crowd to prevent the attempted lighting of the flag. That operational decision involved the balancing of the risks to the safety of one or more police officers involved in that response and the possibility of an overreaction by the crowd to the presence of the police. The OSG officers were best qualified and best placed to make that assessment. The evidence did not permit the primary judge to conclude that a single officer with a fire extinguisher would have sufficed.

30. [85]

    Third, although the primary judge considered some of the conclusions of Mr Halpin as based on “common sense” (at PJ [104]), as the appellant submitted, his Honour failed to consider various concessions concerning the OSG officers’ conduct which Mr Halpin made in cross-examination. Those concessions could equally be described as “common sense”, and they illustrate the nature of the difficult circumstances facing the officers in deciding how to respond. Mr Halpin accepted that rallies are dynamic situations and at times decisions have to be made quickly; that whilst general instructions can be given to officers to assist them in making decisions, ultimately, it is a matter for individual officers to make decisions based on what they see or experience in front of them, coordinating with team members; that in assessing the risk posed by the lighting of a fire in a crowd, there is a level of danger, the extent of which is influenced by matters such as the accelerant to be used and absent knowledge of the accelerant, and it is difficult to assess what in fact is the risk posed by the use of an accelerant; and that if a person is about to light a fire and people get closer to the place where the fire is to be lit, that has a potential to increase the risk for those persons who have moved closer.

31. [86]

    Mr Halpin also accepted that if the forward commander saw the possibility that a fire was going to be lit and had concerns about safety that might cause, then a first reasonable step would be to ask the organiser to prevent that. He accepted that if the organiser could not, or would not, prevent the lighting of the fire, that would be a cause for concern for the forward commander. He accepted that if that forward commander – being the most senior officer in attendance at the protest – formed the opinion that there was a threat posed to public safety, then it would be appropriate for that person to do something about it. Mr Halpin also agreed that upon an officer concluding the best action to take, it would need to be decisive, in order to prevent the risk that one was trying to prevent from actually unfolding. The acceptance of a need for “decisive” action is consistent with responding immediately, with use of fire extinguishers, and with the involvement of more than one officer.

32. [87]

    Fourth, the primary judge erred in assessing the OSG officers’ actions with hindsight, particularly focusing on the fact that there was no fire: at PJ [136(a)], [137], [140]. As the appellant emphasised, this is what the OSG officers were trying to prevent. Given the threat to public safety, there was social utility in the OSG officers taking decisive action and pre-emptively to prevent the lighting of the flag, given the unknown risk of harm had a fire been lit. By contrast, had the OSG officers taken either of the precautions suggested by the primary judge, that would have been inconsistent with a decisive pre-emptive response and a fire may have been lit.

33. [88]

    For the above reasons, we do not agree with the primary judge’s assessment that the actions of the OSG officers were calculated to inflame the situation and create a melee as happened. The finding of breach of duty by the OSG officers must be set aside. We would reach that conclusion even if the risk of harm was as articulated by either the primary judge or the respondent.

The alleged breach of duty by Livermore

1. [89]

   The primary judge found that Livermore owed a duty of care to the respondent when arresting Williams because the respondent “must have been standing very close to him as a member of a crowd surrounding him”: at PJ [170]. The primary judge said that this was “a duty of care which made [Sgt Livermore] susceptible to an allegation of negligence in the manner in which he arrested Mx Williams”: ibid.

2. [90]

   The pleaded risk of harm and the appellant’s response at trial has been referred to at [57]-[60] above. The primary judge found that the risk of harm with respect to the arrest of Williams by Livermore was “a risk of harm of colliding with persons when taking physical action within a small crowd”, that such risk was foreseeable and not insignificant, and in response to that risk, precautions were available, including attempting a verbal arrest, an arrest not involving a forceful grabbing, or not arresting Williams at all: at PJ [172]. The primary judge found that the arrest of Williams was carried out negligently: at PJ [171]-[175]. There was no issue at trial that if Livermore owed a duty of care to the respondent, and if he breached that duty in the manner he effected his arrest of Williams, his negligence was causative of the respondent’s injuries: at PJ [176].

3. [91]

   The primary judge did not expressly state the nature of the duty of care owed by Livermore. It is sufficient for the purposes of this appeal to accept (without deciding) that Livermore 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.

4. [92]

   The State contends that the primary judge erred in finding that the actions of Livermore in arresting Williams breached any duty of care he owed to the respondent (ground 6). We agree with White JA for the reasons given by his Honour that the primary judge erred in finding that Livermore breached any duty to bystanders, or as we would prefer to state the persons to whom any duty might be owed, the class of persons in the immediate vicinity of the arrest of Williams.

Whether any breach by OSG caused Ms Cullen’s injuries

1. [93]

   Lest our conclusions about the nature of the duty of care and the issue of breach are in error, it is appropriate to go on to consider the State’s argument on grounds 8-9 of its notice of appeal. That argument is to the effect that even on the position as found by the primary judge, the causal chain between the actions of the OSG officers and the injuries to the respondent was broken by the actions of Williams. As already noted, the risk of harm pleaded by the respondent at [19G] of the amended statement of claim did not encompass the actions of the OSG officers but rather focused on the risks of carrying out an arrest. However, the primary judge spoke of “a risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating” (PJ [134]). For the purposes of this analysis we will assume in favour of the respondent that that is the relevant risk of harm. For the avoidance of doubt, our conclusions on causation would be the same if the risk of harm was as we have identified it above.

2. [94]

   The primary judge acknowledged that the State had argued below that even if the actions of the OSG officers were negligent, “the actions of Mx Williams in assaulting Sgt Lowe were an intervening act which broke the chain of causation” (PJ [143]). It is plain that the primary judge erred in addressing this argument. His Honour said that “the OSG officers initiated a domino effect, culminating in the injury to the plaintiff” (PJ [144]), and that “proof of causation is not dependent upon there being only one causative act” (PJ [147]). He concluded that “but for the police intervention no issue would have arisen with Mx Williams” (PJ [149]). Thus his Honour’s purported answer to the argument was to find that “but for” causation was made out at least to the extent of being a materially contributing cause. So much satisfies the requirement in s 5D(1)(a) of the CLA, which is labelled “factual causation”. Yet s 5D(1)(b) provides that a determination that negligence caused particular harm requires not only that factual causation is made out but that “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability)”. Referring to factual causation is no answer to the State’s argument that the chain of causation was broken for legal purposes by Williams’ criminal action. That is a legal, normative question: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14] and [21]; Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [86].

3. [95]

   The High Court said in Wallace v Kam that in a case “falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent” (at [22]). Arguments that the chain of causation is broken by what has traditionally been called a novus actus interveniens invoke a well-established type of limitation on legal causation. Whether or not the chain of causation is broken is “very much a matter of circumstance and degree”: Chapman v Hearse (1961) 106 CLR 112 at 122; [1961] HCA 46; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 524; [1985] HCA 37. This aspect of causation is distinct from whether or not the type of injury that occurred is reasonably foreseeable: ibid.

4. [96]

   Hart and Honoré addressed the issue of deliberate acts in Causation in the Law (2nd ed, 1985, Clarendon Press), saying (at 136):

5. [97]

   This statement was quoted approvingly by McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 429-430; [1992] HCA 27.

6. [98]

   The respondent argued that “the undoubtedly free, deliberate and informed act of Mx Williams” was not intended to exploit the situation created by the OSG officers. She invoked Home Office v Dorset Yacht Co Ltd [1970] AC 1004 to the effect that causation is not broken if the tortious or criminal action by a third party is the “very kind of thing” likely to happen as a result of the impugned negligence (per Lord Reid at 1030). She said that in this case “antagonistic behaviour, be it criminal or otherwise, is the ‘very kind of thing’ which is likely to happen as a result of overreaching and forcefully intrusive policing into a crowd liable to be sensitive to such action”.

7. [99]

   The primary judge identified why Williams had taken the action in question:

8. [100]

   When asked in cross-examination if “[y]ou were worried that Indigenous people would be charged with the events that were transpiring”, Williams answered “yes”. Williams also said that “my intent in disrupting the filming was motivated by fear for Aboriginal people being unfairly persecuted”. It is evident that Williams was seeking to impede Lowe gathering evidence for the possible purpose of use to support police charges against those involved in the melee that was transpiring around Dunn-Velasco.

9. [101]

   Addressing causal scope of liability can involve considering “the nature of the duty and the policy that underlies its imposition”: Wallace v Kam at [36]. It is that type of notion which Lord Reid evoked in speaking in Dorset Yacht of “the ‘very kind of thing’ which is likely to happen”. The putative duty here was for OSG officers to take reasonable care to avoid a risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating. The primary judge found that “the matters raised by Inspector Baker certainly justify the OSG being put on alert and being ready to extinguish any fire” (PJ [77]) and that “police were understandably apprehensive about Mr Dunn-Velasco burning a flag” (PJ [130]). He seemed to accept that a “single officer with a fire extinguisher walking through the crowd to arrive at the scene of the possibly impending ignition” would not have breached the duty (PJ [134]). Thus his Honour accepted the legitimacy of some police action being taken; his concern was how this was done. The purpose of the duty accepted by the primary judge appears to have included not provoking the crowd.

10. [102]

    Williams was not part of the crowd into which the officers rushed but was some 15 metres away. Williams was not participating in the melee said to have been provoked by this breach of duty. Williams was not caught up in, nor participated in, the pushing and shoving that occurred in connection with the OSG officers going in towards Dunn-Velasco to prevent the flag being lit. Williams, Lowe, Livermore and the respondent were all outside of that group. The primary judge himself said in the course of his reasoning towards accepting a duty of care that “the plaintiff was a bystander, who fell victim to the actions of the police in their pursuit of entirely unrelated persons and events” (PJ [114]).

11. [103]

    It is difficult to accept that breach of the putative duty renders the State, standing in for the OSG officers, liable for the consequences of all criminal actions that were sparked by the officers’ actions, including actions by persons not physically proximate nor involved in the melee provoked by the actions of the OSG officers. It may be reasonably arguable that pushing, shoving and so forth was the “very kind of thing” which was likely to happen and which the putative duty was intended to avoid. But we do not accept that a decision by a person who was outside the relevant crowd to commit a criminal assault in order to impede the gathering of evidence of possible offences is in the same class. It would be surprising were the law to impose a duty of care the purpose of which extended to preventing the undertaking of such action.

12. [104]

    In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 518-519; [1991] HCA 12, Mason CJ said (emphasis added):

13. [105]

    As noted, there is an element of fact and degree involved in the characterisation exercise required. We do not consider that Williams’ actions (leading to the respondent’s injury) can be characterised as occurring in the ordinary course of things which might flow from the actions of the OSG officers, taking account of the independent, free, deliberate choice made by Williams at a place materially distant from the melee catalysed by the action of the officers.

14. [106]

    Home Office v Dorset Yacht involved three youths in custody escaping then causing damage to property. The defendant was held to have been negligent in taking insufficient steps to exercise control and supervision of the youths. Lord Reid himself said that “no doubt it is easier to infer novus actus interveniens in the case of an adult” than of a child or other person lacking in capacity (at 1030). That points to the significance of a free, deliberate and informed act or omission of a person with full capacity.

15. [107]

    In Mahony the High Court held that a negligent tortfeasor cannot generally escape liability for the consequences of the plaintiff’s injury being negligently treated, save that grossly negligent medical treatment or advice would ordinarily break the chain of causal responsibility (at 528-530). That gross but unintended negligent action can break the chain again reinforces the significance of deliberate action.

16. [108]

    As for the respondent’s argument that “the undoubtedly free, deliberate and informed act of Mx Williams” was not intended to “exploit” the situation created by the OSG officers, the words of Hart and Honoré (quoted above at [96]), however respected, are not to be read as though in a statute. The respondent sought to distinguish between a third party exploiting a situation and merely responding to it. The authors’ reference to exploitation was not limited to cases where the third party acted for their own gain or amusement. So much is shown by one of the examples they gave in support of the principle: “When defendant wrongfully instituted proceedings against plaintiff he was not responsible for the injury to plaintiff when a policeman, transporting him after his arrest, wrongfully shot him” (at 137). In any event, as we have noted, the issue is one of fact and degree in all the circumstances.

17. [109]

    Here, we do not consider that it is appropriate for the scope of liability arising from a duty of care of the kind found by the primary judge to extend to harm caused by the actions of another adult person in the crowd, some 15 metres away from the conduct found to be in breach, undertaking a free and deliberate act of assaulting a police officer in order to impede her gathering evidence in the execution of her duty. That is not the very kind of thing the putative duty was imposed to prevent. It is not the kind of thing which reasonably can be characterised as occurring in the ordinary course of things after the putative breach. It was the distinct, significant criminal action of Williams that led to Livermore undertaking the arrest. And it was the difficulty of effecting that lawful arrest which led to the respondent being injured. No doubt the respondent would not have been injured as she was if the OSG officers had not acted as they did. But for legal purposes the chain of causation from their actions to her injuries was broken.

18. [110]

    Thus even if we had reached a different view with respect to the issues of duty and breach to that expressed above we would still have upheld the appeal, insofar as it related to liability arising from the actions of the OSG officers, because causation was not established.

The claim in battery

1. [111]

   The primary judge dismissed the respondent’s claim for battery on the basis that Livermore’s arrest of Williams was lawful (PJ [162]). The respondent challenges that conclusion in grounds 1 and 2 of her notice of contention. She asserts that the (unchallenged) finding that the arrest of Williams by Livermore was lawful was not of itself sufficient to dispose of the action in battery, “the relevant test being whether Senior Constable Livermore was ‘utterly without fault’ in the direct contact he made with the plaintiff”. In response the appellant argued that the lawfulness of the arrest combined with s 231 of LEPRA was sufficient to answer the claim, and that in any case the arrest was utterly without fault. The appellant said that s 43A of the CLA affected consideration of the fault issue. We have concluded that s 43A did not apply to the arrest of Williams, so that issue falls away. It is sufficient to address the fault issue. It is not necessary to determine whether or not s 231 of LEPRA is of itself an answer to the plaintiff’s claim in battery: note State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 at [227]-[234], [357] and [360], relating to s 230. However, s 231 is part of the context in which fault falls to be assessed.

2. [112]

   The parties agreed that the State could avoid liability for battery if Livermore was found to have acted without negligence, in the sense of being “utterly without fault”, in colliding with the respondent: see Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21]. The parties did not address in any detail what the notion of “utterly without fault” means in this context. The respondent sought to rely on Fede v Gray (2018) 98 NSWLR 1149; [2018] NSWCA 316, especially at [188]-[190]. That discussion related to what was involved in the notion of an action being intentional; it was not directed to the notion of not being negligent in the relevant sense. Somewhat differing views have been expressed in this Court on that issue of negligence: note State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225; see generally the discussion in D Rolph et al, Balkin & Davis: Law of Torts (LexisNexis, 6th ed, 2021) at [2.24]-[2.69]. In Ouhammi Brereton JA stated the relevant standard in this way (at [102]):

3. [113]

   However, Basten JA and Simpson AJA assessed the issue in a manner consistent with what would be involved in addressing the tort of negligence (at, respectively, [31]-[37] and [187]-[202]). It is neither necessary nor appropriate to seek to resolve that issue here, as this case can be resolved by applying the more demanding standard articulated by Brereton JA. If the lower standard adopted by the other members of the Court was applied here then the claim in battery would fail on the basis that the conduct of Livermore did not breach any duty of care, as addressed above.

4. [114]

   As explained above (at [29]-[31]), the respondent was content to accept Livermore’s own description of what occurred. To reiterate, Livermore was attempting to restrain Williams in circumstances where Williams was resisting by pulling away from him with the assistance of some members of the crowd. Livermore managed to pull Williams away from the crowd but Williams was still attempting to evade his grasp. To repeat Livermore’s evidence as to what then occurred:

5. [115]

   It is apparent that Livermore was not conscious of the presence of the respondent and that he did not intend to make any contact with her. He was undertaking a lawful arrest under s 99 of LEPRA of someone whom he suspected was attempting to flee. Pursuant to s 231 of LEPRA he was entitled to use such force as was reasonably necessary to make the arrest. It was not argued that he could or should have tried to check around him as he was wrestling with Williams to ensure he was not about to bump into anyone. Any such suggestion would have been rather unreal in a context where members of the crowd had been seeking to assist Williams escape, Livermore was seeking to get away from those people whilst effecting the arrest of Williams, and all of this happened in the course of a few seconds.

6. [116]

   In these circumstances we consider that Livermore, in lawfully exercising his power to arrest Williams, could not possibly have prevented the impact with the respondent by the exercise of ordinary care and caution. His actions were utterly without fault. Grounds 1 and 2 of the notice of contention thus do not establish an alternative basis for upholding the orders made below.

Orders

1. [117]

   The appeal must be upheld. It was not suggested that costs should not follow the event both in this Court and in the proceedings below.

2. [118]

   The Court was informed that a part payment of $103,000 towards the respondents’ costs had been made by the appellant to Ms Cullen. It sought an order for restitution. We did not understand there to be any opposition to such an order being made if the appeal was upheld.

3. [119]

   The orders of the Court will be as follows:

   1. (1)

      Appeal upheld.

   2. (2)

      Set aside orders (1) and (2) made in the Common Law Division on 15 June 2023, along with orders (a) and (b) made on 21 June 2023, and in lieu thereof order as follows:

   3. (3)

      The respondent is to repay the sum of $103,000 paid by the appellant in part payment of the respondent’s costs and disbursements of the proceedings below.

   4. (4)

      The respondent is to pay the appellant’s costs of the appeal.

4. [120]

   WHITE JA: The respondent, Ms Laura Cullen, was a bystander at an Invasion Day Rally held in Sydney on 26 January 2017. She was seriously injured at the rally when she was knocked over by a police officer, Leading Senior Constable Livermore, when he was effecting the arrest of a Mr Hayden Williams. She sued the State of New South Wales for the actions of LSC Livermore and of other police officers at the rally. She claimed that her injuries were caused by negligence of the police. She also alleged that LSC Livermore committed the torts of assault and battery.

5. [121]

   Police officers are not personally liable for injury or damage caused by an act or omission in the exercise in good faith of their functions under any Act or law, including the common law (Police Act 1990 (NSW), s 213).

6. [122]

   The Crown is liable for damages for a tort committed by a police officer in the performance or purported performance of the officer’s functions (Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B).

7. [123]

   The primary judge held that the appellant, the State of New South Wales (“the State”) was liable for damages for the injuries suffered by Ms Cullen on the ground that her injuries were caused by negligent acts of the police (Cullen v State of New South Wales [2023] NSWSC 653).

8. [124]

   The negligence found by the primary judge fell into two categories. The procession at the rally progressed up Broadway towards Victoria Park when it stopped at Buckland Street. A Mr Dunn-Velasco addressed the crowd and appeared to be about to set fire to an Australian flag. At this point, police officers from the Operational Services Group (“OSG officers”) charged through the crowd towards Mr Dunn-Velasco. At least two were carrying fire extinguishers, which they discharged. These actions created a mêlée. Leading Senior Constable Lowe was filming the procession using a Sony Handycam which she held above her head. Hayden Williams struck her left arm and knocked the camera to the ground. LSC Livermore witnessed the assault on LSC Lowe and attempted to arrest Williams. There was a struggle and, to effect the arrest, LSC Livermore tackled Williams. In doing so, they collided with Ms Cullen.

9. [125]

   The primary judge held that both the OSG officers and LSC Livermore owed Ms Cullen a duty of care ([107]-[133]; [163]-[170]). [1] His Honour held that the OSG officers breached their duty of care when they rushed, unannounced, into the crowd with fire extinguishers operating ([132], [134]).

10. [126]

    Section 43A of the Civil Liability Act 2002 (NSW) provides:

11. [127]

    The primary judge accepted that s 43A of the Civil Liability Act 2002 (NSW) applied. His Honour held that the actions of the OSG officers were reckless and so unreasonable that the exception to s 43A(3) (“… unless the act was so unreasonable etc”) was satisfied ([135]-[141]). His Honour found that the OSG officers’ breach of their duty of care caused Ms Cullen’s injuries and the chain of causation was not broken by Williams’ assault on LSC Lowe and his arrest by LSC Livermore ([141]-[149]).

12. [128]

    The primary judge rejected Ms Cullen’s claim that LSC Livermore committed the torts of assault or battery on the ground that LSC Livermore was effecting a lawful arrest ([152]-[162]). His Honour held that the arrest was carried out negligently ([171]-[175]). There was no issue that if LSC Livermore owed a duty of care to Ms Cullen, and if he breached that duty owed in the manner he effected his arrest of Williams, his negligence was causative of her injuries.

13. [129]

    By its notice of appeal, the State challenges the findings that the OSG officers and LSC Livermore owed Ms Cullen a duty of care. It challenges the findings of breach of duty and the finding that the OSG officers’ actions were causative of Ms Cullen’s injuries.

14. [130]

    By notice of contention, Ms Cullen challenges the primary judge’s finding that s 43A of the Civil Liability Act applies either to the acts of the OSG officers or of LSC Livermore on the ground that none was exercising a “special statutory power” within the meaning of s 43A(2).

15. [131]

    Ms Cullen also contends that she was entitled to judgment on her cause of action in battery against LSC Livermore on the ground that, irrespective of whether his arrest of Williams was lawful, he was not “utterly without fault”.

16. [132]

    For the reasons which follow, I have concluded that the primary judge was correct to conclude that all of the police officers concerned owed Ms Cullen a duty of care and that his Honour was correct also to conclude that the OSG officers breached that duty. I conclude that the primary judge was also correct to conclude that the chain of causation between the OSG officers’ breach of duty and Ms Cullen’s suffering of her injuries was not broken.

17. [133]

    I would uphold Ms Cullen’s notice of contention that s 43A was inapplicable because, although the police officers were exercising statutory powers, they were not exercising a “special statutory power” as defined in s 43A(2).

18. [134]

    I conclude that the primary judge erred in finding that LSC Livermore breached his duty of care. I do not accept Ms Cullen’s contention that she should have succeeded on her cause of action against LSC Livermore in battery.

19. [135]

    Because of the conclusions at [132] and [133] I would dismiss the appeal.

Background Facts

1. [136]

   On 18 January 2017, Superintendent Luke Freudenstein, commander of the Redfern Local Area Command, gave approval to Mr Raul Bassi, secretary of the Indigenous Social Justice Association, for the holding of a public assembly and procession on 26 January 2017, commonly known as Australia Day, but also sometimes called Invasion Day.

2. [137]

   Superintendent Freudenstein’s approval of the assembly and procession included a condition that “there will be no flag or effigy burning”.

3. [138]

   Although this condition was stipulated, it could not readily be enforced. The organisers of the procession could not control the behaviour of all of the participants in it.

4. [139]

   Acting Inspector Luke Baker prepared Operational Orders for the Invasion Day Rally. He anticipated that a crowd of 2,000 people would attend the rally. He gave detailed instructions for the responsibilities of the numerous police officers who were engaged for the supervision of the rally.

5. [140]

   Approximately 65 police were to be deployed for the event. The Operational Orders noted that 2,000 people had indicated they would attend. Some estimates put the size of the actual crowd at approximately 5,000. An annexure to the Operational Orders (Annexure F) was entitled “Actions On”. It listed potential issues that might have an impact on the event. The document stated that every incident might have unique factors which affect or influence the planned operational response. The potential issues identified included detection of an offence during a static gathering or mobile procession. The document stated “any offences detected are to be brought to the attention of the Team/Field Supervisor via VKG”. I understand this to be a radio call sign used by the police. The document stated that, depending on the nature and seriousness of the offence, the Team/Field Supervisor was to provide advice to the officers in regard to an appropriate response considering all the circumstances. Questions to be addressed included the seriousness of the offence, whether the police could follow the Person of Interest and intervene at a more appropriate time and initiate an investigation, and whether immediate action was required to prevent a serious risk to public safety that was occurring or was imminent. It posed the question: “Would police intervention result in officers being assaulted or hindered and do they have sufficient back-up if they were to intervene?”

6. [141]

   The document also stated that:

7. [142]

   Under the heading “Fire – Burning flags, effigies or other articles, flares etc”, the document stated that any incidents were to be brought to the attention of the Team/Field Supervisor. If required, immediate and appropriate action to prevent or respond to a serious incident where there was a serious risk to public safety was to be taken. This included action taken to contain or isolate the hazard.

8. [143]

   The rally proceeded without incident until the procession reached the corner of Buckland Street and Broadway.

9. [144]

   When the march stopped on Broadway near the intersection with Buckland Street, Inspector Baker was informed by a Sergeant Hogan from the OSG that a Mr Dunn-Velasco had been seen with what appeared to be lighter fluid in his right pants pocket. He told Sergeant Hogan that if Mr Dunn-Velasco tried to burn the flag and there was a risk to public safety “you should extinguish the fire”.

10. [145]

    Mr Dunn-Velasco addressed the crowd and invited them to move in closer and form a tight circle. Inspector Baker asked Mr Bassi, the organiser of the rally, to intervene. Mr Bassi said that he would, but he did not think that Mr Dunn-Velasco would listen to him.

11. [146]

    Mr Dunn-Velasco addressed the crowd and appeared to be about to set fire to an Australian flag. At that point, the OSG officers intervened. At least some of them (more than one) were carrying small fire extinguishers. The fire extinguishers were deployed. A mêlée ensued.

12. [147]

    LSC Lowe had been filming the rally using a handheld Sony Handycam. Constable Lowe stated:

13. [148]

    The strike to LSC Lowe’s left arm was made by Williams. He stated that he was standing near the median strip, about 30 metres from where an Aboriginal man (Mr Dunn-Velasco) was speaking to the crowd via a microphone and was surrounded by the crowd. He saw a group of police in dark coloured uniforms charge into the crowd towards Mr Dunn-Velasco and observed a cloud of what he first thought was white coloured dust which he later considered came from a fire extinguisher that a policeman was holding. He then said that he noticed a police officer holding a small hand-held video recorder standing near where he was standing next to the median strip. The police officer was holding the recorder with her arm elevated so that the camera seemed to be looking down on the crowd of people. He said that, with his open hand, he slapped the camera out of Constable Lowe’s hand.

14. [149]

    His action was witnessed by LSC Livermore, who stated:

15. [150]

    In grabbing Mr Williams (as he put it), or in tackling him (as other witnesses described it), LSC Livermore collided with the plaintiff, causing her to fall where she hit her head on the road and suffered serious injury.

16. [151]

    At this point, it should be noted that when Williams gave evidence he said that he did not use male-gendered pronouns or titulars and wished to be referred to as “they” and “them” and that the titular Mx be used in reference to him.

17. [152]

    The primary judged indulged these wishes. This does not make his Honour’s judgment easier to read. For example, referring to the evidence of another witness, a Ms Glackin, who was a friend of the plaintiff and accompanied her to the rally, the primary judge said ([48]):

18. [153]

    With reference to Ms Glackin’s written evidence and her oral evidence it is apparent that the primary judge intended to convey that her evidence was that the officer was much larger than Williams.

19. [154]

    The biological sex, age and size of Mr Williams are all relevant matters when considering whether LSC Livermore breached the duty of care that the primary judge found he owed to Ms Cullen. The fact that it was an action of an individual and not more than one person that led to LSC Livermore’s effecting the arrest is also a relevant fact. These matters are obscured by the primary judge’s indulgence of Williams’ wish that he be referred to as “they” and that his gender not be referred to.

Primary judge’s findings of fact

1. [155]

   There was little dispute about the facts. No OSG officer gave evidence. There was video evidence that the OSG officers charged through the crowd towards Mr Dunn-Velasco as he was stooping and commenced pouring lighter fluid onto what appeared to be an Australian flag. The flag was not large. The primary judge accurately described it as the size of a pillowslip with “all the attributes” of the Australian flag ([129]).

2. [156]

   The primary judge accepted the evidence of witnesses called by Ms Cullen ([58]). The primary judge found that one police officer could have made his or her way through the crowd with an extinguisher to put out any fire that may have emanated from the small flag if it were lit ([62]).

3. [157]

   It was common ground, and admitted on the pleadings, that there was no law prohibiting Mr Dunn-Velasco from burning his own Australian flag.

4. [158]

   The burning of a flag, if it had occurred, would have been a breach of the agreed conditions for the march. It would not, on that account, have been unlawful.

5. [159]

   The primary judge made no adverse finding against Inspector Baker for having told Sergeant Hogan that if Mr Dunn-Velasco tried to burn the flag there would be a risk to public safety and he should extinguish the fire. Nor did Ms Cullen seek an adverse finding against Inspector Baker on appeal. The primary judge found that this instruction justified the OSG officers being put on alert and being ready to extinguish a fire. He said that this was very different from the OSG officers rushing into the crowd, discharging at least two fire extinguishers and doing so in the absence of a fire ([77]).

6. [160]

   The primary judge also observed that the actions of the OSG officers in discharging the fire extinguishers before they reached Mr Dunn-Velasco were useless if they intended to extinguish the apprehended fire and were also dangerous ([77]).

7. [161]

   The primary judge referred to the “Actions On” document referred to at [140] above which provided that, in the case of the burning of a flag, the incident was to be brought to the attention of a superior and that immediate action was not to be taken unless there was a serious imminent risk to public safety or property ([71]). His Honour found that none of the conditions was present.

8. [162]

   Inspector Baker had authorised the extinguishment of a fire if Mr Dunn-Velasco attempted to burn the flag and there was a risk to public safety. To this extent, the written protocol had been superseded. But the State did not seek to demonstrate that there was in fact a risk to public safety if the “flag” had been lit. The primary judge did not make such a finding. In commenting on the evidence of LSC Lowe, his Honour said that it was notable that she did not say that the crowd was standing close to Mr Dunn-Velasco ([61]). The State did not contend on appeal that his Honour should have made such a finding.

9. [163]

   In any event, the gravamen of the primary judge’s finding of negligence that amounted to recklessness was that the OSG officers unnecessarily charged into the crowd with at least two of the officers carrying fire extinguishers as they did so. This created a mêlée of a kind that the instructions prepared by Inspector Baker had sought to avoid.

10. [164]

    There was conflicting evidence as to how far from the crowd that had formed a circle around Mr Dunn-Velasco LSC Lowe was standing when she was struck by Williams. In oral evidence, she said that she was “10 to 15 metres, max” away from Mr Dunn-Velasco. That would place her fairly close to the perimeter of the crowd, as would be expected as she was attempting to film the events.

11. [165]

    Williams stated that he was “…about 30 metres back from where an Aboriginal man was speaking to the crowd via microphone. He was surrounded by the crowd”. He noticed a police officer holding a small hand-held video recorder standing near where he was standing, next to the median strip.

12. [166]

    The primary judge did not resolve this discrepancy. As noted above, his Honour found the witnesses called for Ms Cullen, including Williams, to be impressive witnesses. But it is difficult to accept that LSC Lowe, if she were attempting to film the events, would have been as far as 30 metres away. The video evidence does not suggest that the crowd surrounding Mr Dunn-Velasco would have been more than four or five metres deep, nor that LSC Lowe was 30 metres away.

13. [167]

    In relation to the arrest of Williams by LSC Livermore, the primary judge summarised LSC Livermore’s evidence in cross-examination as follows (at the time of trial, LSC Livermore was Sgt Livermore and LSC Lowe was Sgt Lowe and were so referred to in the judge’s reasons):

14. [168]

    The primary judge found:

15. [169]

    The primary judge did not identify any other avenue available to LSC Livermore to effect Williams’ arrest other than by the actions he took.

Did the police owe Ms Cullen a duty of care?

1. [170]

   The State submitted at trial and on appeal that ss 6 and 13 of the Police Act 1990 (NSW) (as at 26 January 2017) were inconsistent with a common law duty of care on the part of the OSG officers to the respondent. Section 6 relevantly provided:

2. [171]

   Section 13 relevantly provided:

3. [172]

   The prescribed form of oath or affirmation was as follows:

4. [173]

   The State contended that the OSG officers were exercising statutory powers under ss 6 and 13 of the Police Act. It submitted that the OSG officers were engaged in keeping the peace and acting to protect persons from injury that might arise from the lighting of the flag.

5. [174]

   It does not appear that the primary judge accepted that submission. His Honour said:

6. [175]

   However, Inspector Baker’s evidence that he told Sergeant Hogan that if Mr Dunn-Velasco tried to burn the flag and there was a risk to public safety “you should extinguish the fire” was accepted by the primary judge ([76(ii)] and [77]). His Honour found that this matter justified the OSG officers being put on alert and being ready to extinguish a fire, but said that this was very different from the OSG officers rushing into the crowd, discharging at least two fire extinguishers and doing so in the absence of a fire ([77]).

7. [176]

   But the first salient consideration in deciding whether the OSG officers owed the respondent a duty of care is whether they were acting in exercise of a statutory power under the Police Act.

8. [177]

   The question whether the OSG officers were exercising their statutory power to keep the peace does not depend upon whether, in hindsight, it can be said that their actions were not conducive to the keeping of the peace, but whether they were acting for the purpose of keeping the peace. I accept that the OSG officers were exercising a statutory power when they charged into the crowd.

9. [178]

   This does not negate the existence of a duty of care.

10. [179]

    In Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54, McHugh J said (at [76], [81]) that if a statutory authority uses its powers to intervene in a field of activity and increases the risk of harm to persons, it will ordinarily come under a duty of care, citing Knightley v Johns [1982] 1 WLR 349 at 357-358; [1982] 1 All ER 851 at 857-858; Marshall v Osmond [1983] QB 1034 at 1038; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 460; [1985] HCA 41; and Capital & Counties Plc v Hampshire County Council [1997] QB 1004 at 1031, 1042.

11. [180]

    The fact that the statutory authority (or in this case, the police) was exercising statutory power does not mean that a common law duty of care only arises if the statute affirmatively indicates an intention that such a duty exists (Graham Barclay Oysters at [148] (Gummow and Hayne JJ). Their Honours said that:

12. [181]

    As noted above, police officers are not personally liable for the exercise of their functions if they act in good faith. Rather, the State has a statutory liability for an alleged tort committed by a police officer. As Basten JA observed in Fuller-Wilson v State of New South Wales [2018] NSWCA 218 at [51], these provisions militate against a conclusion that no duty of care might be owed by a police officer because the imposition of such a duty could have the tendency to inhibit the effective discharge of the officer’s duty.

13. [182]

    Bystanders at the rally were vulnerable to the risk of injury if violence were provoked. The OSG officers had control over the risk of harm that eventuated. The primary judge found, correctly, that it was the actions of the OSG officers that caused the mêlée that led to the respondent’s injury. In the words of McHugh J in Graham Barclay Oysters, it was the use by the OSG officers of their powers to intervene in a field of activity that increased the risk of harm to bystanders.

14. [183]

    The State submitted that the existence of a duty of care on the part of the OSG officers was negated because, so it was said, the existence of the duty would be inconsistent or incompatible with the statutory powers or duties imposed on the police, and would be incoherent with the statutory framework (Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 580 [50], 581 [55]-[56], 582 [60], [62]; Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [57], [125] and [298]).

15. [184]

    There have been many cases, in materially different circumstances, where it has been found that such inconsistency negates the existence of a duty of care, sometimes accompanied by other reasons.

16. [185]

    In Hill v Chief Constable of West Yorkshire [1989] AC 53, the plaintiff sued the West Yorkshire Police in negligence on behalf of her deceased daughter’s estate for having failed to apprehend one Peter Sutcliffe (the Yorkshire Ripper) who committed numerous murders of young women. Ms Hill was the last of his victims. Her mother contended that had the police exercised reasonable care in the conduct of their investigation of the crimes, Sutcliffe would have been arrested before Ms Hill was murdered. The basis for the decision in Hill was that the police owed no duty of care to the public, or a wide section of the public (young women) who might become a victim of an unknown criminal, where the claim concerned the strategies and resources to be adopted in attempting to arrest the criminal (State of New South Wales v Tyszyk [2008] NSWCA 107 at [123]).

17. [186]

    Hill was cited in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [57] where the High Court observed that it was there held that:

18. [187]

    This was the basis for the decision in Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92, where it was held that the police (and the DPP) owed no duty of care to an accused on remand who was arrested for possession of drugs where they failed to tell the testing laboratory that the accused was in custody (at [42], [70]).

19. [188]

    No such issue arises in this case.

20. [189]

    In Sullivan v Moody, medical practitioners and social workers were sued for negligence by parents of children who were taken into State care as a result of their reports that the children appeared to have been sexually abused. In upholding the summary dismissal of the proceedings, the High Court said:

21. [190]

    The High Court held that the statutory scheme which required the defendants to treat the interests of the children as paramount, and imposed statutory and professional responsibilities for reporting apprehended sexual abuse of children, negated the existence of any duty of care owed to the children’s parents.

22. [191]

    The same conclusion was reached by the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

23. [192]

    In Tame v New South Wales, the High Court held that a police officer did not owe a duty of care to avoid psychiatric injury to a driver when completing a report on the accident where the police officer had mistakenly recorded that the driver had an elevated blood alcohol level which, when later disclosed to the driver, caused her to develop a psychiatric disorder. The principal basis for the majority’s decision was that it was not reasonably foreseeable that a driver would suffer a recognisable psychiatric injury from such a mistake. But it was also held that police officers investigating possible contravention of the law did not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct was being investigated (Hayne J at [298], McHugh J at [125], Gaudron J at [57]).

24. [193]

    McHugh J said that:

25. [194]

    In Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577, Mason P (with whom Handley JA and Pearlman AJA agreed) held (at [153]) that the police owed no duty of care to the land owners (Mr and Mrs Thompson) to prevent an alleged breach of the peace by a Mr McLeod, who was in dispute with Mr Thompson about his entitlement to remove chattels owned by him from Mr Thompson’s land, over which Thompson claimed a lien. The asserted duty was to take positive action to prevent McLeod enforcing what he (correctly) contended was his civil right to remove the property. The police did attend to ensure that there was no breach of the peace. This led to Mr Thompson’s arrest. The arrest was held to be lawful. There is no analogy between the finding in Thompson v Vincent that the police did not owe a duty to take positive steps against Mr McLeod with the issue in this case, as to whether the police owed a duty of care to bystanders in the exercise of their powers at the rally.

26. [195]

    In Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52, the Court of Appeal of the ACT held that the police did not owe a duty of care in apprehending an armed person. In that case the plaintiff, who suffered from schizophrenia, was armed with a kendo stick. The police attempted to apprehend him for the protection of the public and, in doing so, he was shot. The Court of Appeal considered that the imposition of a common law duty of care to a suspect whom the police are attempting to apprehend or arrest would be inconsistent with their statutory duty (at [287]).

27. [196]

    There are many other cases. In Jennings v Police (2019) 133 SASR 520; [2019] SASCFC 93, Kourakis CJ said:

28. [197]

    Contrary to the State’s submission, none of the authorities cited suggests that a duty of care is negated in this case.

29. [198]

    In the case of the OSG officers, the question is whether they owed a duty of care to Ms Cullen or to a class of persons, namely, bystanders, which included her. Similarly, in the case of LSC Livermore, the question is not whether he owed a duty of care to Williams when effecting Williams’ arrest, but whether he owed a duty of care to bystanders (including Ms Cullen) when he effected the arrest.

30. [199]

    In the case of the OSG officers, there was no incompatibility between their duty to act to prevent a breach of the peace and their duty to take reasonable care for the safety of the bystanders who might be affected by a breach of the peace (Sullivan v Moody at [60], quoted at [188] above). To the contrary, the duties were congruent.

31. [200]

    Whether LSC Livermore owed a duty of care to Ms Cullen raises a different question. In effecting the arrest, LSC Livermore was exercising his power of arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Under s 99(1), LSC Livermore was entitled to arrest Williams because he suspected on reasonable grounds that Williams had committed an offence and was satisfied that the arrest was reasonably necessary to stop Williams from fleeing, and to ensure that he appeared before a court in relation to the offence (s 99(1)(b)(ii) and (iv)).

32. [201]

    Consistently with the decision of the Court of Appeal of the ACT in Australian Capital Territory v Crowley, LSC Livermore owed no duty of care to Williams in effecting the arrest. That is not the present issue. The question is rather whether he owed a duty of care to the surrounding bystanders when he effected the arrest, including to Ms Cullen.

33. [202]

    That issue was considered by the Supreme Court of the United Kingdom in Robinson v Chief Constable of West Yorkshire Police [2018] 1 AC 736. There, two police officers attempted to arrest a suspected drug dealer who endeavoured to escape. In effecting the arrest, the men fell and knocked over an elderly woman who suffered injury as a result. In the Supreme Court (overturning the decision of the Court of Appeal) it was held that the police officers in the circumstances of that case owed a duty of care to the plaintiff and acted in breach of that duty.

34. [203]

    Lord Reed JSC said that the police are subject to liability for causing personal injury in accordance with the general law of tort and do not enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime (at [45] and [55]). There was no “general immunity” (at [56]-[68]).

35. [204]

    In Robinson, the person to be arrested was also called Williams. In addressing the question whether the police officers owed a duty of care to Ms Robinson, Lord Reed JSC said:

36. [205]

    In finding that the duty of care was breached, Lord Reed JSC said (at [77]):

37. [206]

    In separate reasons for upholding the appeal, Lord Mance DPSC said (at [97]:

38. [207]

    In Fuller-Wilson v State of New South Wales, Basten JA said:

39. [208]

    Whether LSC Livermore did or did not owe a duty of care to the surrounding bystanders when he effected his arrest of Williams is not an easy question. It may be said that as he exercised his power of arrest in the public interest, the law would not ordinarily subject him to a duty to have regard to the interests of another class of persons (Sullivan v Moody at [60], quoted at [188] above).

40. [209]

    In answering the question, it should be recognised that whether a police officer in the position of LSC Livermore is liable for breach of a duty of care (if it exists) if his or her action causes injury to a bystander is to be assessed having regard to “the pressure of events and the agony of the moment”, not by hindsight (Woodley v Boyd [2001] NSWCA 35 at [37]).

41. [210]

    In Robinson, the arresting officers had time to evaluate the circumstances to assess the risk of injury to a passer-by. Their negligence was in failing to notice the elderly plaintiff, who was in close vicinity to the man to be arrested.

42. [211]

    LSC Livermore had no such time to evaluate the circumstances. He reacted instinctively to the assault on LSC Lowe and, as the primary judge found, used no more force than was reasonably necessary to effect Williams’ arrest.

43. [212]

    I conclude that LSC Livermore owed Ms Cullen a duty of care as a surrounding bystander, but did not breach that duty. Whether a duty of care was owed can be considered by taking a more extreme case. If an officer in LSC Livermore’s position used unreasonable force by attempting to shoot Williams but missed and hit an innocent bystander, I would have difficulty accepting that the State would not be liable in negligence to the bystander because the officer owed no duty of care to the bystander. I would accept Lord Mance’s reasons for finding that a duty of care existed.

44. [213]

    For these reasons, the primary judge was correct to conclude that both the OSG officers and LSC Livermore owed a duty of care to Ms Cullen.

Section 43A

1. [214]

   Section 43A of the Civil Liability Act has been quoted above at [126].

2. [215]

   By notice of contention, Ms Cullen challenges the primary judge’s finding that s 43A was applicable to the circumstances of this case.

3. [216]

   That contention should be upheld.

4. [217]

   Section 43A applies only to a “special statutory power”, being a power conferred by or under statute that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

5. [218]

   The OSG officers were exercising a statutory power to prevent what they considered would be a breach of the peace. That is not a special statutory power. A member of the public has the same right to intervene to prevent an apprehended breach of the peace (Albert v Lavin [1982] AC 546). Lord Diplock there said (at 565):

6. [219]

   The primary judge did not consider that when the OSG officers intervened, there was a breach of the peace. But the OSG officers considered there was an apprehended breach of the peace. A member of the public with the same apprehension would have had the same power as the police to intervene. Likewise, a member of the public would have been entitled to take reasonable steps to apprehend Williams after his assault on LSC Lowe.

7. [220]

   Section 43A is concerned with the exercise of powers by a statutory authority of a kind which the public generally are not authorised to exercise (Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 at [125]-[130]; Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321 at [20]).

8. [221]

   In both cases a member of the public would have had the power to intervene to prevent Mr Dunn-Velasco from lighting the flag (if that could reasonably have been apprehended as being a breach of the peace), and have used reasonable force to arrest Williams, whose assault on LSC Lowe was unquestionably a breach of the peace.

9. [222]

   In neither case did s 43A apply.

Breach of Duty of Care

1. [223]

   Consideration of breach of the duty of care requires consideration of the risk of harm (Civil Liability Act, s 5B).

2. [224]

   Ms Cullen pleaded:

3. [225]

   The State did not take issue with this identification of the risk of harm.

4. [226]

   In the case of the OSG officers, I agree with the primary judge for the reasons he gave that they breached their duty of care to the bystanders. For the reasons his Honour gave, their actions were calculated to inflame the situation and create a mêlée as happened.

5. [227]

   On the other hand, I do not accept that LSC Livermore breached a duty of care to bystanders in effecting his arrest of Williams. In Woodley v Boyd, Heydon JA, with whom Davies AJA and Foster AJA agreed said (at [37]) that in evaluating police conduct where a police officer has decided to effect an arrest “…the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight”. His Honour approved the observations of Connor J in McIntosh v Webster (1980) 43 FLR 112 at 123 that:

6. [228]

   Those observations were made in the context of consideration of the lawfulness of an arrest. But they are equally applicable to the question whether the lawful arrest is made negligently if a duty of care is owed to bystanders (or to the person arrested).

7. [229]

   One of the primary judge’s reasons for finding that LSC Livermore breached his duty of care to Ms Cullen was essentially that LSC Livermore should not have effected the arrest which created the risk of injury because there was no further threat to LSC Lowe’s safety or any further threat of violence by Williams. His Honour said:

8. [230]

   I do not agree. If Williams’ arrest had not been made, Williams would have escaped into the crowd. The tackle that LSC Livermore effected on Williams was only necessary because Williams, aided by the crowd, attempted his escape.

9. [231]

   This was not the finding of the primary judge. He said that Williams was not “fleeing” from police but was walking away. He was not asked to halt and, according to the primary judge, there is no reason to conclude that he would not have stopped had he been asked. The primary judge said that Williams could have been asked before physical capture took place. He said that LSC Livermore’s motivating factor was that he was annoyed at the actions of Williams (at [160]).

10. [232]

    Thus the judge’s alternative proposition was that Williams could have been asked to stop and it should be concluded that he would have done so if asked and then been arrested.

11. [233]

    Williams’ own evidence was that, after he struck LSC Lowe, he moved into the crowd where a tussle between police officers and participants in the rally was ongoing. He said he had taken five or six steps at most when he was grabbed from behind and swung around. Williams’ own evidence negates the primary judge’s finding that LSC Livermore could have walked up to him and asked him to stop and told him that he was under arrest. In cross-examination he said:

12. [234]

    Contrary to the judge’s finding that “all of the plaintiff’s witnesses were impressive and doing their best to tell the truth” ([58]), Williams’ answers to these questions were evasive and self-justificatory. Although he denied that he was seeking to flee, his self-described “sympathetic nervous-system response” was admittedly to take steps to get away.

13. [235]

    I do not accept the primary judge’s finding that LSC Livermore could have effected Williams’ arrest by detaining him without tackling him. Nor do I accept his Honour’s finding that, acting reasonably, LSC Livermore should not have effected the arrest because of the risk of injury to bystanders. The latter finding depends upon hindsight.

14. [236]

    For these reasons, in so far as Ms Cullen’s cause of action against the State depends upon proof of breach by LSC Livermore of a duty of care owed to her, her cause of action fails. That does not mean that the appeal should be allowed.

15. [237]

    I would dismiss Ms Cullen’s notice of contention that, but for s 213 of the Police Act, LSC Livermore would have been liable to her in damages for battery. Contrary to Ms Cullen’s submission, I accept that LSC Livermore was “utterly without fault” in his arrest of Williams (Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 at [21], [24]).

Liability for negligence of OSG officers: causation

1. [238]

   Section 5D of the Civil Liability Act relevantly provides:

2. [239]

   Section 5D(1)(a) expresses the “but for” test for factual causation. In this case, as the primary judge found, the negligence of the OSG officers satisfied the “but for” test. Were it not for their actions, Ms Cullen would not have been injured.

3. [240]

   The primary judge did not address s 5D(1)(b).

4. [241]

   The State submitted that it was not appropriate for its liability to extend to the harm so caused. The immediate cause of the harm was the action of Williams in striking LSC Lowe which led to his being tackled by LSC Livermore, which resulted in Ms Cullen’s injuries.

5. [242]

   The police foresaw the risk of harm alleged by Ms Cullen. They foresaw that sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered and that if an incident inflamed a situation the inflammation could result in injury to the police (see [140] above).

6. [243]

   Clearly such a situation could also result in injury to participants in the rally. If injury were inflicted to the police or to participants in the rally that would likely be the result of violent and unlawful actions directed towards the police as a result of police intervention.

7. [244]

   The State submitted that the voluntary and unlawful actions of Williams broke the chain of causation. That will not be so where such conduct is the very thing for the prevention of which the duty of care is owed (Home Office v Dorset Yacht Co Ltd [1970] AC 1004).

8. [245]

   The voluntary and unlawful actions of Williams and his resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the OSG officers’ intervention.

9. [246]

   It is not necessary that the particular circumstances be foreseeable. 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 (Knightley v Johns at 360-361).

10. [247]

    For these reasons the primary judge was correct to conclude that the negligence of the OSG officers was causative of Ms Cullen’s injuries.

11. [248]

    The appeal should be dismissed with costs.