Laura Cullen was among 5,000 people at a 2017 Sydney protest when she was knocked down and injured as NSW police tried to arrest a man
A landmark legal ruling that set out the duty of care New South Wales police owe people attending protests has been overturned on appeal, stripping an Invasion Day marcher of an $800,000 compensation claim and forcing her to repay $103,00 in legal costs.
The NSW court of appeal handed down the decision shortly before Christmas, overturning an earlier ruling that found police had a duty of care to a woman who attended a protest where she was a bystander to an arrest, and who was knocked down and injured during the arrest.
The woman, Laura Cullen, was among an estimated 5,000 people who attended an Invasion Day rally in Sydney on 26 January 2017.
According to the judgment, at one point in the march, the rally stopped on Buckland Street in Alexandria where a speaker tried to set fire to an Australian flag using lighter fluid.
A police officer filming the effort to extinguish the fire was struck by a protester, causing the camera she was holding to fall to the ground. Another officer, SLC Damian Livermore, tried to arrest the protester by moving through the crowd.
During the arrest, Cullen – who was not involved in these incidents – was knocked to the ground and injured, the judgment said. She experienced retrograde amnesia, which meant she had no memory of attending the rally.
A supreme court judge found in 2023 that the officer had “acted recklessly or unreasonably” when carrying out the arrest as he “ignored the strong potential of harm to persons close by”. Cullen was awarded $800,000 in damages, plus legal costs.
The decision was considered significant for clarifying the responsibility police officers had to people attending protests.
But on appeal the court found in a two-one decision that Cullen had not established that the actions of the officer had caused her injury.
Justices Fabian Gleeson and Jeremy Kirk held that “it was the distinct, significant criminal action” of another protest that led to the arrest “and it was the difficulty of effecting that lawful arrest which led to the responding being injured”.
“No doubt the respondent would not have been injured as she was if the [Operational Services Group] officers had not acted as they did,” the judgment said. “But for legal purposes, the chain of causation from their actions to her injuries was broken.”
The court also found Cullen could not claim compensation for battery, saying: “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.”
Justice Richard White dissented. He found that “the police foresaw the risk of harm alleged by Ms Cullen” in their planning for the event, which recognised “sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered”, and that the same risk applied to protesters.
All judges, however, rejected a suggestion by lawyers for the state that argued “officers owed no duty of care” to anyone who attended the protest march, saying officers were still required to “take reasonable care to avoid the risk of harm” to those “in the immediate vicinity of an operational response”.
The decision means Cullen is no longer eligible for $800,000 in compensation, with the court ordering her to repay $103,000 she had been paid to cover legal costs and to cover the state’s legal fees.
