Cullen v New South Wales

The appellant was injured during a protest march when she was knocked to the ground as police officers arrested a third party as part of a crowd control operation. Police had intervened to prevent an apprehended risk to public safety, including in response to flag burning. The appellant was a bystander or member of the crowd foreseeably at risk of physical injury from the police operational response. The State of New South Wales was alleged to be vicariously liable for the negligence of the police officers. The trial judge and the Court of Appeal considered whether the police owed a duty of care to the appellant and whether that duty was breached. The High Court allowed the appeal, set aside the orders of the Court of Appeal, and remitted the matter for determination in accordance with its reasons.

• Whether police officers owed a duty to exercise reasonable care in undertaking crowd control operations to avoid physical injury to members of the crowd and bystanders foreseeably at risk of injury from the operational response
• Whether the scope of that duty extended to the injury suffered by the appellant, an innocent bystander knocked to the ground during the arrest of a third party
• Whether the police actions constituted a breach of that duty, having regard to the apprehended threat to public safety and the availability of alternative courses of action
• The proper characterisation of the claim as one of positive negligent police conduct rather than a failure to protect from third party harm
• The relationship between statutory police powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the common law duty of care

• ratioWhere police officers undertake an operational response to a perceived threat to public safety during a protest march or crowd event, they owe a duty of care to exercise reasonable care to avoid causing physical injury to members of the crowd and bystanders who are foreseeably at risk of injury from that operational response. This duty arises from the positive conduct of the police officers creating a foreseeable risk of physical injury, not from a general obligation to protect individuals from the criminal acts of others. — established [[1]]
• ratioThe distinction between a duty of care arising from positive conduct (an 'imposed duty' or duty arising from a careless act) and a duty arising from an assumption of responsibility (an 'assumed duty') is critical in determining police liability. Where police actively intervene in a crowd situation, the duty arises from their positive conduct creating a risk of harm, rather than from any assumption of responsibility for the plaintiff's welfare. — established [[1]]
• ratioA claim against police for negligence in the manner of conducting an operational response is to be distinguished from a claim that police failed to protect the plaintiff from harm caused by the criminal acts of third parties. The former involves positive negligent conduct by the police creating a risk of harm; the latter involves an alleged failure to act. Different duty of care considerations apply to each category. — established [[1]]
• ratioThe scope of the duty of care owed by police during crowd control extends to persons who are foreseeably at risk of physical injury from the police operational response. The duty is not limited to the person being arrested or the target of the police intervention; it extends to innocent bystanders and other members of the crowd who are in the zone of foreseeable risk. — established [[1]]
• ratioThe existence of statutory powers authorising police to arrest persons and to use reasonable force in effecting an arrest does not negate the common law duty of care owed to bystanders. The statutory powers define the scope of lawful police action but do not displace the obligation to exercise those powers with reasonable care for the safety of others. — established [[1]]
• ratioThe 'agony of the moment' or urgency of a situation faced by police officers is a relevant consideration in assessing breach of duty, but it does not excuse a failure to take precautions that were readily available and would not have significantly impeded the police operation. Urgency is accommodated within the breach assessment by adjusting the standard of care to reflect the circumstances as they appeared to the officers at the time. — refined [[1]]
• ratioIn assessing whether police have breached their duty of care during crowd control, the standard of care is that of a reasonable police officer in the circumstances, having regard to: (a) the probability that harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; and (d) the social utility of the activity that creates the risk of harm. Sections 5B and 5C of the Civil Liability Act 2002 (NSW) apply. — applied [[1]]
• ratioThe social utility of police crowd control operations and the maintenance of public safety is a significant factor in assessing breach of duty under s 5B(2)(d) of the Civil Liability Act 2002 (NSW), but it does not immunise police from liability for negligent conduct. The weight to be given to social utility must be balanced against the probability and seriousness of harm and the availability of alternative precautions. — applied [[1]]
• ratioFactual causation under s 5D(1)(a) of the Civil Liability Act 2002 (NSW) requires the plaintiff to establish that the negligence was a necessary condition of the occurrence of the harm. Where the harm would not have occurred but for the negligent manner of the police operational response, factual causation is established. — applied [[1]]
• ratioThe State is vicariously liable for the negligent conduct of police officers acting in the course of their duties, including during crowd control operations. The exercise of statutory powers does not displace this vicarious liability. — affirmed [[1]]
• ratioThe level of generality at which the risk of harm and the scope of the duty of care are described is critical to the proper analysis of a negligence claim. The risk must be described at a level of generality that is neither so broad as to encompass all possible harms nor so narrow as to describe only the precise sequence of events that occurred. — refined [[1]]
• obiterThe concept of 'assumption of responsibility' or 'undertaking of responsibility' serves as a tool of analysis in determining whether police who intervene in a situation owe a duty of care to those foreseeably affected by their intervention, rather than as a rigid doctrinal prerequisite. — observed [[1]]

• referred Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [[2009] HCA 48] — Referred to at [13] and [24] in the context of the established methodology for determining duty of care and the distinction between positive acts and omissions in police liability.
• referred Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [[2014] HCA 36] — Referred to at [169] in the Court's analysis of duty of care principles applicable to public authorities.
• referred Council of the Shire of Sutherland v Heyman [[1985] HCA 41] — Referred to at [12] and [43] in the Court's discussion of the standard of care and the duty of care framework.
• referred Chapman v Hearse [[1961] HCA 46] — Referred to at [106] in the Court's analysis of the scope of the duty of care and foreseeability of harm.
• referred Kuhl v Zurich Financial Services Australia Ltd [[2011] HCA 11] — Referred to at [22] in the Court's discussion of the methodology for determining duty of care in novel categories.
• referred Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [[2022] HCA 11] — Referred to at [106] in the Court's analysis of duty of care principles.
• referred Wyong Shire Council v Shirt [[1980] HCA 12] — Referred to at [14] in the Court's discussion of the duty of care framework.
• referred Jaensch v Coffey [[1984] HCA 52] — Referred to at [12] in the Court's analysis of the standard of care.
• referred Commissioner for Railways (NSW) v Cardy [[1960] HCA 45] — Referred to at [168] in the Court's discussion of the scope of duty and foreseeability.
• referred Young v Chief Executive Officer (Housing) [[2023] HCA 31] — Referred to at [72] in the Court's analysis of duty of care principles.
• referred Roncevich v Repatriation Commission [[2005] HCA 40] — Referred to at [79] in the Court's discussion of the breach assessment framework.
• referred New South Wales v Fahy [[2007] HCA 20] — Referred to at [6] in the Court's analysis.
• referred Board of Fire Commissioners (NSW) v Ardouin [[1961] HCA 71] — Referred to at [69] in the Court's discussion of the standard of care and breach.
• referred Rogers v Whitaker [[1992] HCA 58] — Referred to at [46] in the Court's analysis of duty of care principles.
• referred Drinkwater & v Howarth [[2006] NSWCA 222] — Referred to at [24] in the Court's discussion of police liability in negligence.
• referred State of NSW v Tyszyk [[2008] NSWCA 107] — Referred to at [150] in the Court's analysis.
• referred REED v WARBURTON [[2011] NSWCA 98] — Referred to at [21] in the Court's discussion of police duty of care.
• referred Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [[2009] NSWCA 263] — Referred to at [173] in the Court's analysis.
• referred Cullen v State of New South Wales [[2023] NSWSC 653] — Referred to at multiple paragraphs including [47], [132], [134], [135] as the decision at first instance.

• Civil Liability Act 2002 (NSW) s 5B — The Court applied the statutory test for breach of duty, including the calculus of negligence factors — probability of harm, likely seriousness, burden of precautions, and social utility — to the specific context of police crowd control operations. Social utility of police functions is significant but not determinative. [[1]]
• Civil Liability Act 2002 (NSW) s 5C — The Court considered the principles applicable to determining breach, including the 'agony of the moment' and social utility, as relevant factors in assessing the reasonableness of police conduct in dynamic operational situations. [[1]]
• Civil Liability Act 2002 (NSW) s 5D — The Court applied the statutory test for factual and scope causation. Factual causation was established because the appellant's injury would not have occurred but for the negligent manner of the police operational response. [[1]]
• Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 198, 199, 200 — The Court considered the statutory powers of police to arrest without warrant and the safeguards relating to arrest. These powers authorise police action but do not displace the common law duty of care owed to bystanders. [[1]]
• Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 230, 231 — The Court considered the statutory provisions governing use of force by police officers. The power to use reasonable force in effecting an arrest does not negate the obligation to exercise that force with reasonable care for the safety of others. [[1]]
• Police Act 1990 (NSW) ss 6, 13, 14 — The Court referred to the provisions establishing the NSW Police Force, the functions of police officers, and the duties of police officers as part of the statutory context in which the duty of care arises. [[1]]

This decision establishes for the first time in the High Court that police owe a duty of care to bystanders foreseeably at risk of physical injury from positive police operational conduct during crowd control. It clarifies the analytical framework by drawing a sharp distinction between claims based on positive police negligent conduct and claims based on a failure to prevent third party harm. The decision resolves the relationship between statutory police powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the common law duty of care, confirming that statutory authority to arrest and use reasonable force does not displace the obligation to exercise those powers with reasonable care. The Court's treatment of the 'agony of the moment' doctrine — accommodated within the breach assessment but not a blanket excuse — provides practical guidance for assessing police conduct in dynamic operational settings. The remittal for determination in accordance with the High Court's reasons signals that the lower courts erred in their approach to duty, scope, or breach.

• The duty of care owed by police in crowd control arises from positive conduct creating foreseeable risk, not from any general obligation to protect individuals from third party harm. Practitioners must correctly characterise the claim at the outset.
• Statutory police powers under LEPRA (including powers of arrest and use of reasonable force) do not displace the common law duty of care owed to bystanders. The statutory framework defines lawful action but does not immunise negligent execution.
• The 'agony of the moment' is accommodated within the s 5B breach assessment by adjusting the standard of care to reflect the circumstances as they appeared to the officers at the time. It does not provide a blanket excuse for failing to take readily available precautions.
• Social utility of police crowd control operations under s 5B(2)(d) of the Civil Liability Act 2002 (NSW) is significant but must be balanced against the probability and seriousness of harm and the availability of alternative precautions.
• The scope of the duty extends beyond the target of police intervention to all persons in the zone of foreseeable risk, including innocent bystanders. Practitioners acting for plaintiffs should frame the risk at a level of generality that captures the nature of the foreseeable harm without requiring foresight of the precise mechanism of injury.
• The State's vicarious liability for police officers is not displaced by the fact that officers were exercising statutory powers or performing statutory functions.
• The distinction between an 'imposed duty' arising from positive conduct and an 'assumed duty' arising from assumption of responsibility is critical. In crowd control cases involving active police intervention, the duty is imposed, not assumed.

• [[2009] HCA 48]
• [[2023] HCA 31]
• [[2014] HCA 36]
• [[2011] HCA 11]
• [[2022] HCA 11]
• [[2005] HCA 40]