State of New South Wales v Cullen

[2024] NSWCA 310

116 NSWLR 377

State of New South Wales v Cullen

[EDITORIAL NOTE: An application for special leave to appeal to the High Court was granted: [2025] HCADisp 82.]

[2024] NSWCA 310 Court of Appeal Gleeson, White and Kirk JJA 8December 2023, 20 December 2024 NEGLIGENCE — Duty of care — Public authorities — Police officers — Bystander injured during arrest of protestor at protest rally — Special statutory powers — Civil Liability Act 2002 (NSW) s 43A . Section 43A of the Civil Liability Act 2002 (NSW) relevantly provided:

• “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.

• …”  

A participant in a protest rally, who was surrounded by a crowd, attempted to set fire to a flag. Two police officers carrying fire extinguishers quickly moved into the crowd to prevent that attempt. A melee ensued, which another police officer filmed with a handheld video camera. A protester struck the officer’s arm to knock the camera out of her hand. Yet another police officer witnessed the assault and arrested the protester. In making the arrest, the police officer collided with a bystander who fell and suffered a serious injury.

The bystander successfully sued the State of New South Wales for, inter alia, negligence. In reaching this conclusion, the primary judge held that the police officers owed a duty of care to the bystander and that they were exercising a special statutory power for the purposes of s 43A of the Civil Liability Act 2002 (NSW). The State of New South Wales appealed from that decision.

Held (allowing the appeal): (1) (White JA dissenting) For s 43A of the Civil Liability Act 2002 (NSW) to be engaged, it is necessary to identify a power a person is not generally authorised to exercise without specific statutory authority. Where the source of the power a person is entitled to exercise arises at common law, s 43A will not be engaged. ([40]–[54]; [217]–[222])

(2) (Gleeson and Kirk JJA) The requirement in s 43A of the Civil Liability Act 2002 (NSW) that the civil liability be “based on” the exercise or non-exercise of a special statutory power 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. ([38]–[49])

(3) (Gleeson and Kirk JJA) The police officers owed a duty of care to avoid the risk of inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march. ([72], [79])

(4) (White JA) The police officers owed a duty of care to bystanders who might be affected by a breach of the peace. This extended to circumstances where the police officers were exercising their powers of arrest. ([182], [199], [212]–[213])

Graham Barclay Oysters Pty Ltd v Ryan(2002) 211 CLR 540;  [2002] HCA 54; Robinson v Chief Constable of West Yorkshire Police[2018] AC 736;  [2018] UKSC 4 applied.

CASES CITED

The following cases are cited in the judgments:

Albert v Lavin[1982] AC 546 Aubin, Ex parte; Re Munday(1930) 30 SR (NSW) 169 Australian Capital Territory v Crowley(2012) 7 ACTLR 142;  [2012] ACTCA 52 Bales v Parmeter(1935) 35 SR(NSW) 182 Bennett v Minister of Community Welfare(1992) 176 CLR 408;  [1992] HCA 27 Board of Fire Commissioners of New South Wales v Ardouin(1961) 109 CLR 105;  [1961] HCA 71 Bolton, Re; Ex parte Beane(1987) 162 CLR 514;  [1987] HCA 12 Capital & Counties plc v Hampshire County Council[1997] QB 1004 Chapman v Hearse(1961) 106 CLR 112;  [1961] HCA 46 Coleman v Power(2004) 220 CLR 1;  [2004] HCA 39 Collins v Insurance Australia Ltd(2022) 109 NSWLR 240;  [2022] NSWCA 135 Corkery v Black(Court of Appeal (NSW), Gleeson CJ, Priestley and Clarke JJA, 2 August 1989, unrep) Council of the Shire of Sutherland v Heyman(1985) 157 CLR 424;  [1985] HCA 41 Cran v State of New South Wales(2004) 62 NSWLR 95;  [2004] NSWCA 92 Croucher v Cachia(2016) 95 NSWLR 117;  [2016] NSWCA 132 Cullen v State of New South Wales[2023] NSWSC 653 Curtis v Harden Shire Council(2014) 88 NSWLR 10;  [2014] NSWCA 314 Della Franca v Lorenzato(2021) 250 LGERA 136;  [2021] NSWCA 321 Fede v Gray(2018) 98 NSWLR 1149;  [2018] NSWCA 316 Fuller-Wilson v State of New South Wales(2018) Aust Torts Rep 82‐413;  [2018] NSWCA 218 Gales Holdings Pty Ltd v Tweed Shire Council(2013) 85 NSWLR 514;  [2013] NSWCA 382 Graham Barclay Oysters Pty Ltd v Ryan(2002) 211 CLR 540;  [2002] HCA 54 Hill v Chief Constable of West Yorkshire[1989] AC 53 Home Office v Dorset Yacht Co Ltd[1970] AC 1004 Jennings v Police(2019) 133 SASR 520;  [2019] SASCFC 93 Knightley v Johns[1982] 1 WLR 349 Mahony v J Kruschich (Demolitions) Pty Ltd(1985) 156 CLR 522;  [1985] HCA 37 March v E & MH Stramare Pty Ltd(1991) 171 CLR 506;  [1991] HCA 12 Marshall v Osmond[1983] QB 1034 McIntosh v Webster(1980) 43 FLR 112 NEAT Domestic Trading Pty Ltd v AWB Ltd(2003) 216 CLR 277;  [2003] HCA 35 Paul v Cooke(2013) 85 NSWLR 167;  [2013] NSWCA 311 Precision Products (NSW) Pty Ltd v Hawkesbury City Council(2008) 74 NSWLR 102;  [2008] NSWCA 278 Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd(2021) 393 ALR 162;  [2021] NSWCA 206 R v Howell[1982] QB 416 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd(2009) 77 NSWLR 360;  [2009] NSWCA 263 Robinson v Chief Constable of West Yorkshire Police[2018] AC 736;  [2018] UKSC 4 Robinson v State of New South Wales(2018) 100 NSWLR 782;  [2018] NSWCA 231 State of New South Wales v McMaster(2015) 91 NSWLR 666;  [2015] NSWCA 228 State of New South Wales v Ouhammi(2019) 101 NSWLR 160;  [2019] NSWCA 225 State of New South Wales v Tyszyk[2008] NSWCA 107 Sullivan v Moody(2001) 207 CLR 562;  [2001] HCA 59 Tame v State of New South Wales(2002) 211 CLR 317;  [2002] HCA 35 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd(2022) 273 CLR 454;  [2022] HCA 11 Thompson v Vincent(2005) 153 A Crim R 577;  [2005] NSWCA 219 Transport for NSW v Hunt Leather Pty Ltd(2024) 115 NSWLR 489;  [2024] NSWCA 227 Uniting Church in Australia Property Trust (NSW) v Miller(2015) 91 NSWLR 752;  [2015] NSWCA 320 Wallace v Kam(2013) 250 CLR 375;  [2013] HCA 19 Woodley v Boyd[2001] NSWCA 35 X (Minors) v Bedfordshire County Council[1995] 2 AC 633

TEXTS CITED

The following texts are cited in the judgments:

Hart HLA and T Honoré, Causation in the Law (2nd ed, 1985, Clarendon Press) New South Wales Law Reform Commission, Criminal Procedure: Police Powers of Detention and Investigation after Arrest (Report No 66, 1990) Rolph D et al, Balkin & Davis: Law of Torts (6th ed, 2021, LexisNexis)

APPEAL

This was an appeal against a decision of the Supreme Court ([2023] NSWSC 653 (Elkaim AJ)) to award damages for negligence to a bystander who was injured by a police officer performing an arrest at a protest rally.

N Owens SC and N Newton, for the appellant. D Toomey SC and B Jones, for the respondent. Judgment reserved 20 December 2024 GLEESON and KIRK JJA. 1 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 justassaulted 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 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 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 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 It is convenient to address the issues raised in the following order:

• (1)

  facts (at [6]–[33]);

• (2)

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

• (3)

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

• (4)

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

• (5)

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

• (6)

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

Facts

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. 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. 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)

  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)

  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)

  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.

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. 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:

“• Any incidents are to be brought to the attention of the Team/Field Supervisor via VKG [police communication network].

• If required, take immediate and appropriate action to prevent or respond to a serious incident where a person has been injured or a serious risk to public safety or property is imminent. This includes taking action to contain or isolate the hazard.

• The Team/Field Supervisor is to converse with the officers on-scene, assess the situation and provide a SITREP [situation report] via VKG including the following:—

• Is police intervention required to prevent a serious injury to members of the public or prevent any burning item from spreading and causing damage to other objects or buildings in the area?

• Is an OSG Fire Team or the NSWFB [NSW fire brigade] required to extinguish any fire?

• Would police intervention to prevent injury to persons or damage to other objects/structures result in officers being hindered or assaulted?

NB: The act of burning a flag, effigy or other article by a person who owns the property is not an offence, however their actions can endanger public safety.”

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”. 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. 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, afterthe OSG officers had used their fire extinguishers. Part of Dunn-Velasco’s speech was also videoed by someone apparently working for Buzzfeed. 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:

“40. At around 1.10pm, the front of the march stopped on Broadway near the intersection of Buckland Street. While we were stopped there, I was informed by Sergeant Hogan from OSG that Mr Dunn-Velasco had been seen with what appeared to be ‘lighter fluid’ in his right pants pocket.

41. Upon receiving this information, I spoke with Sergeant Hogan, who said: ‘we are a fire team and we have fire extinguishers’. Sergeant Hogan then asked: ‘what do you want me to do?’ and I said words to the effect of: ‘if he tries to burn the flag and there’s a risk to public safety, you should extinguish the fire’.

42. I was concerned because I was not certain what liquid Mr Dunn-Velasco was carrying and how it would react if it was ignited, particularly in the densely packed crowd. I was also concerned about how the crowd would react if a fire was started in close proximity.”

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. 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 pillowcase. 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. 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 seemto 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. 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. 19 Lowe estimated that she was 10–15m away from Dunn-Velasco when he knelt down. Williams gave evidence that it was about 30m. Lowe’s upper estimate of 15m appears consistent with the video footage she took (even accepting that videos can zoom in) and can be accepted. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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:

“I ran a few steps after Mr Williams and grabbed him from behind with my left arm over his left shoulder and across the chest. I tried to pull him back away from the crowd and back towards the middle of the roadway, where there were fewer people. He resisted by pulling away from me and moving his feet in an attempt and [sic — to] move back into the crowd. I could also see and feel other peoplepulling at him and at me. It seemed to me like they were trying to assist him to get away from me. Eventually, I was able to pull Mr Williams away from the other protesters who were pulling at him, and back toward the median strip and away from the crowd.

During the course of me attempting to restrain Mr Williams and him attempting to evade my grasp and move away from me, he and I both fell onto the median strip. As we fell, I attempted to turn him around to force him to the ground so that I could better control him. As we fell, I felt myself collide with another person before landing on the ground. I can’t recall the exact position we were in when we hit the median strip but believe he landed on his stomach with me partially on top of him. I do not recall seeing where this person, who I now know to be the plaintiff, landed when we collided into her, but I do not believe that I landed on her legs. I then raised myself onto my knees.”

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”. 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. 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. 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

34 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.”

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 at PJ [136]. 36 The primary judge took the view that s 43A applied to both the impugned actions of 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. 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. 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 Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 at [196]. 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) 115 NSWLR 489; [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. 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 for example Curtis at [254]. 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 of New South Wales 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 of New South Wales v Ardouin (1961) 109 CLR 105; [1961] HCA 71. 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. 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 reasonablynecessary 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. 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 (NSW), Gleeson CJ, Priestley and Clarke JJA, 2 August 1989, unrep). It is not the case that an assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act 1988 (NSW) 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. 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. 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. 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 areckless 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]. 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 for example 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. 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. 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. 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)):

“[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.” (Footnotes omitted)

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 toapprehend 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. 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. 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. 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

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.

A. I was trying to get away from feelings of fear and anger towards me.

Q. But you were physically trying to remove yourself from the scene, where you had just knocked a camera out of a police officer’s hand?

A. I took a number of steps.

Q. To get away.

A. Yeah, I mean, to change the state I was in, yeah.”

234 Contrary to the judge’s finding that “all of the plaintiff’s witnesses were impressive and doing their best to tell the truth” (at [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. 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. 236 For these reasons, insofar 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. 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

238 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).”

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. 240 The primary judge did not address s 5D(1)(b). 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. 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. 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. 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. 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. 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. 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. 248 The appeal should be dismissed with costs.

Appeal allowed

Solicitors for the appellant: Crown Solicitor (NSW). Solicitors for the respondent: MTM Legal. SD DODD SOLICITOR 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.