Rallygoer strikes police officer

Keywords

Duty of care – public authorities – police officers owe duty to take reasonable care to avoid risk of harm to class of persons in immediate vicinity of operational response during protest march – risk of harm in police actions inflicting physical injury on identified class of person – s43A of Civil Liability Act 2002 (NSW) inapplicable.

Facts

The respondent was a bystander to an invasion day rally.  After a participant in the rally, addressing the crowd, appeared to prepare to set an Australian flag on fire, police officers (from the Operational Services Group or “OSG”) responded by pushing through the crowd to extinguish the fire. 

A police officer, LSC Lowe, was videoing the event when she was struck by another rallygoer by the name of Williams.  Another officer, LSC Livermore, witnessed the assault and, in attempting to arrest Williams, fell with him, knocking down the respondent who sustained injury.  Those parties were about 15 metres away from where the initial police officers had first entered the crowd to prevent the fire being lit. 

At first instance the respondent was successful in an action in negligence but was unsuccessful in the action in assault and battery. The State appealed the decision. 

The respondent alleged that officers of the OSG had breached a duty of care extending to her when they rushed into the crowd to prevent the flag being set alight. The respondent further alleged that Livermore breached such a duty of care in the manner in which he sought to arrest Williams and committed the tort of battery against her.

Several issues were determined on appeal, including:

• Whether provisions under the Civil Liability Act (s43A) with respect to a public authority exercising a special statutory power applied;
• The identification of the risk of harm;
• Whether the OSG Officers owed a duty of care and if so whether it was breached;
• Whether LSC Livermore in effecting the arrest, owed the respondent a duty of care and if so whether it was breached;
• Whether there was a break in the chain of causation;
• If there was a duty that was breached, whether the actions were legally causative of the injury;
• Whether the respondent’s claim in assault and battery should be upheld on the grounds that the officer arresting the rally goer was not utterly without fault.

Decision

Gleeson and Kirk JJA, and White JA delivered 20 December 2024. Appeal upheld.

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:

The Amended Statement of Claim is dismissed;

The plaintiff is to pay the defendant’s costs;

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

Ratio

The majority concluded that:

• s 43A of the Civil Liability Act did not apply;
• whilst 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;
• any duty that was owed was not breached;
• 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 relating to the actions of the OSG Officers;
• The claim in battery was not made out.

The majority determined that s 43A of the Civil Liability Act was not applicable. This provision excluded civil liability for any act or omission involving the exercise of, or failure to exercise, a special statutory power, unless the act or omission was in the circumstances so unreasonable that no authority having special statutory power in question, could properly consider the act or omission to be a reasonable exercise of, or failure to exercise its power. 

The basis for that determination was that the actions of the OSG Officers were not actions undertaken operating a special statutory power (being one conferred by or under a statute, and of a kind that people are generally not authorised to exercise without specific statutory authority).  Similarly, Livermore was not exercising a specific statutory authority when arresting Williams such that s 43A was found not apply to the respondent’s claim.

In considering the alleged breach of duty by the OSG Officers, the majority first identified the risk of harm as being the risk of the OSG Officers’ actions inflicting physical injury on people in the immediate vicinity of an operational response during the protest march.  In identifying the risk, the majority then identified the duty of care owed by the OSG Officers was a duty to take reasonable care to avoid the risk of harm to the class of people in the immediate vicinity of an operational response by OSG Officers during the protest march, thereby linking the identified class to the relevant risk.

In then rejecting the Primary Judge’s finding that the actions of the OSG Team were reckless and out of proportion to the danger, the Court identified the obligations on the part of the OSG Officers to prevent breaches of the peace and rejected suggestions by the Primary Judge of alternative precautions as being impracticable.  The majority determined the finding of a breach on the part of the OSG Officers was incorrect and must be set aside, there being no breach of the duty which was articulated.

As regards the alleged breach by Livermore, the court on appeal identified that the Primary Judge erred in finding that Livermore breached a duty to bystanders, or as the court preferred to state, persons to whom any duty might be owed, being the class of people in the immediate vicinity of the arrest of Williams.

The court in then considering causation, identified that even if the Primary Judge was correct in terms of finding a duty of care and on the issue of breach, the causal chain between the actions of the OSG Officers and the injuries to the respondent was broken by the action of Williams. 

Williams’ conduct was to impede Lowe gathering evidence, he was not part of the crowd into which the officers rushed, was some 15 metres away, and was not participating in the melee arguably provoked by the OSG Officers’ actions.  The court identified that it did not accept that a decision by a person, who was outside the relevant crowd, to commit a criminal assault in order to impede the gathering of evidence of possible offences, to be in the same class as someone who may suffer an injury being by pushing and shoving and so forth which the duty might be intended to avoid.

The court did not consider it appropriate that the scope of liability arising from a duty of care of the kind found by the Primary Judge to extend to harm caused by the actions of another adult person in the crowd, some 15 metres away from the conduct found to be in breach, undertaking a free and deliberate act of assaulting a police officer in order to impede her gathering evidence in the execution of her duty.

It was the distinct and significant criminal action of Williams that led to Livermore undertaking the arrest.  It was the difficulty of effecting that lawful arrest which led to the respondent being injured.  The chain of causation from the actions of the OSG Officers to the respondent’s injuries was accordingly broken.

The court also determined the primary judge erred in finding that Livermore breached any duty to bystanders, or as the court preferred to state, the persons to whom any duty might be owed, being the class of persons in the immediate vicinity of the arrest of Williams.

Last, in considering the claim in battery, the court identified that Livermore was not conscious of the presence of the respondent and that he did not intend to make any contact with her. He was undertaking a lawful arrest and pursuant to the relevant legislation, was entitled to use such force as was reasonably necessary to make the arrest.

The court considered that Livermore, in lawfully exercising his power to arrest Williams, could not possibly have prevented the impact with the respondent by the exercise of ordinary care and caution. His actions were considered utterly without fault with the court upholding of the dismissal of the respondent ‘s claim for battery.