State of New South Wales v Cullen

The application of s 43A

1. Section 43A of the CLA provides: 43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
2. 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. 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. 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. 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. 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. 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. 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. 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. 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 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. 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. 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. 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. 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. 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. 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. 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. 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): [1.14] At common law, a police officer may arrest without warrant a person whom the officer reasonably suspects has committed a felony; a private citizen may arrest without warrant only where a felony has actually been committed. Both police officers and private citizens may arrest without warrant a person who commits a breach of the peace in their presence, provided that they act promptly. An arrest without warrant is also justifiable if it is reasonably believed that the person is about to commit a breach of the peace. Neither police officers nor private citizens have any power at common law to arrest a person without warrant for the commission of a misdemeanour, other than where the offence also amounts to an actual or apprehended breach of the peace.
19. 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. 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. 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. 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. 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.

The duty and breach identified in the proceedings below

1. 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: (a) being knocked to the ground where a participant in the rally was being arrested when participants in the rally were in close proximity to each other, and (b) the sudden and unexpected movements of participants in the rally caused by a participant in the rally being arrested when the participant (sic) were in close proximity to each other.
2. The State did not admit any duty, nor this articulation of the risk of harm.
3. 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.
4. 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.
5. 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]): The place where the officers decided to arrest Williams was a moderately busy shopping street in a town centre. Pedestrians were passing in close vicinity to Williams. In those circumstances, it was reasonably foreseeable that if the arrest was attempted at a time when pedestrians - especially physically vulnerable pedestrians, such as a frail and elderly woman - were close to Williams, they might be knocked into and injured in the course of his attempting to escape. That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care towards the pedestrians in the immediate vicinity when the arrest was attempted, including Mrs Robinson.

A duty was owed

1. 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.
2. 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].
3. 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: Central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of risk. In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330, Gummow J, with whom Heydon J agreed, observed at [59] that it is "only through the correct identification of the risk that one can assess what a reasonable response to that risk would be". His Honour had earlier observed that "the assessment of breach depends on the correct identification of the relevant risk of injury": at [18]. …
4. Similarly, in Tapp v Australian Bushman's Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 at [106], the joint judgment of Gordon, Edelman and Gleeson JJ stated: The proper assessment of the alleged breach of duty depends on "the correct identification of the relevant risk of injury", because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury. (Citations omitted.)

To whom was the duty owed?

1. 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.
2. 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".

Identification of the risk of harm

1. 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.
2. The appellant submitted that the relevant risk of harm which ought to have 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.
3. 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.
4. 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.
5. That difficulty was compounded in oral argument. Senior counsel for the respondent identified the risk of harm variously as: The risk of harm is that it will cause chaos and confusion in the crowd in close proximity to where this occurs, and that members of the crowd may react negatively, keeping in mind, may react negatively, and, thereby, excite a physical response from the police. … I would seek to put it somewhat less specifically than that [being par 19G of the amended statement of claim]. The way I seek to put it is that it undoubtedly gave rise to a foreseeable risk that there would be confusion and chaos in the crowd, in a tightly packed crowd, in circumstances where police ran into the crowd without warning to that crowd and were discharging fire extinguishers, and that people in the crowd might react negatively to those actions on the part of the police, their negative reaction also possibly involving criminal conduct and, as may be seen, in fact, that's what occurred, not only on the part of Mx Williams, but it is said that other people started throwing bottles immediately. I accept that foreseeability is to be looked at prospectively but having regard to the nature of this rally and the nature of the crowd, it is hardly far fetched or fanciful to suggest that people would react in a criminally violent manner to the actions of the OSG officers.

Breach of duty

1. 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 rushing officers or through 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.
2. 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-Valasco 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.
3. 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.
4. 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 the flag in the presence of a crowd which were part of 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.

The alleged breach of duty by Livermore

1. 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. 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. 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. 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. 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. 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].

The claim in battery

1. 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. 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 [25]. 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]): it does not suffice a defendant merely to negative negligence in the sense of a breach of duty of care or a failure to exercise reasonable care and skill, but requires at the least that the defendant show that it could not possibly have prevented the impact by the exercise of ordinary care and caution.

Orders

1. 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. 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. The orders of the Court will be as follows: 1. Appeal upheld. 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: 1. The amended statement of claim is dismissed. 2. The plaintiff is to pay the defendant's costs. 1. 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. 2. The respondent is to pay the appellant's costs of the appeal.
4. 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. 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. 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. 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. 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.

Background Facts

1. 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. Superintendent Freudenstein's approval of the assembly and procession included a condition that "there will be no flag or effigy burning".
3. 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. 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. 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?"

Primary judge's findings of fact

1. 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. 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. 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. 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. 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. 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. 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. 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.

Did the police owe Ms Cullen a duty of care?

1. 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: "6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. … (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002."
2. Section 13 relevantly provided: "13 Oath to be taken by persons exercising police functions (1) Before a person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations. ..."
3. The prescribed form of oath or affirmation was as follows: "I [oath or affirmation] that, I will well and truly serve our Sovereign Lady The Queen, as a police officer without favour or reflection, malice or ill-will, until I am legally discharged, that I will see and cause Her Majesty's peace to be kept and preserved - and that - I will prevent to the best of my power - all offences against that peace - and that - while I continue to be a police officer- I will- to the best of my skill and knowledge- discharge all the duties thereof - faithfully - according to law."
4. 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.

Section 43A

1. Section 43A of the Civil Liability Act has been quoted above at [126].
2. By notice of contention, Ms Cullen challenges the primary judge's finding that s 43A was applicable to the circumstances of this case.
3. That contention should be upheld.
4. 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. 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): "…every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will." (See also Coleman v Power (2004) 220 CLR 1 at 24 [10]; [2004] HCA 39.)
6. 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. 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. 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.

Breach of Duty of Care

1. Consideration of breach of the duty of care requires consideration of the risk of harm (Civil Liability Act, s 5B).
2. Ms Cullen pleaded: "19G. The risk of harm was that there existed a foreseeable risk that the Plaintiff might suffer injury by reason of: (a) Being knocked over to the ground where a participant in the rally was being arrested when participants in the rally were all in close proximity to each other. (b) The sudden and unexpected movements of participants in the rally caused by a participant in the rally being arrested when the participant[s] were in close proximity to each other."
3. The State did not take issue with this identification of the risk of harm.
4. 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. 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: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances".
6. 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. 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: "[173] As to s 43A I think Sgt Livermore's conduct was reckless because it ignored the strong potential of harm to persons close by, to a degree 'that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of….. its power'. [174] I refer once more to the Actions On document in support of my conclusion. Under the heading 'Detection of an offence during a static gathering or mobile procession' the first guideline is that '[a]ny offences detected are to be brought to the attention of the Team/Field Supervisor via VKG'. Mx Williams had committed the offence. Mx Williams was not on a rampage of attacking police officers. There was no need for 'immediate action required to prevent a serious risk to public safety that is occurring or imminent'."

Liability for negligence of OSG officers: causation

1. Section 5D of the Civil Liability Act relevantly provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
2. 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. The primary judge did not address s 5D(1)(b).
4. 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. 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. 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. 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. 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. 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).

Endnote

1. In these reasons, reference to the paragraph numbering in the reasons of the primary judge are to the numbering of the judgment appearing on Caselaw rather than in the Red Book. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024