In a significant legal decision, the NSW Court of Appeal has overturned a landmark ruling that awarded $800,000 in compensation to an Invasion Day marcher injured during a 2017 protest in Sydney. The protester, Laura Cullen, has not only lost her substantial damages claim but must now repay over $100,000 in legal costs.
Duty of care to protesters overruled
The original Supreme Court judgment in 2023 had established that NSW police owed a duty of care to rally attendees, even if they were bystanders to an arrest. The judge determined that the actions of the officer who knocked down and injured Cullen while arresting another protester were “reckless or unreasonable.”
However, the Court of Appeal has now rejected this interpretation in a 2-1 split decision. Justices Fabian Gleeson and Jeremy Kirk stated that it was the “distinct, significant criminal action” of a different protester that led to the arrest and Cullen’s injuries. They argued this broke the chain of causation from the police’s actions to her harm.
“No doubt the respondent would not have been injured as she was if the [Operational Services Group] officers had not acted as they did, but for legal purposes, the chain of causation from their actions to her injuries was broken.”
– Justices Fabian Gleeson and Jeremy Kirk
Wider implications for protests
The decision is expected to have significant ramifications for how police operate at protests and the legal protections afforded to demonstrators. While the court maintained that officers still have a general duty to “take reasonable care to avoid the risk of harm,” it has seemingly raised the bar for proving police liability for injuries.
Protest groups are deeply concerned that this ruling could embolden heavier-handed policing tactics at rallies, as it may be more difficult to hold law enforcement accountable for reckless actions. There are fears it will have a chilling effect on free expression and the right to protest.
Protester faces huge legal bill
For Laura Cullen personally, the Court of Appeal’s judgment is devastating. Not only has she lost her $800,000 compensation, but she has been ordered to repay $103,000 in legal costs already awarded to her, plus cover the state’s legal fees for the appeal. As someone who suffered significant injuries and amnesia from the incident, it is a bitter blow.
The case highlights the risks protesters face, both physically and legally, when exercising their democratic rights. It remains to be seen whether this decision will face a further High Court challenge, but for now it reshapes the landscape of police powers and public demonstrations in Australia. Activists will be watching closely to see how this plays out at future protests and examining the legal avenues still available to them.
The decision is expected to have significant ramifications for how police operate at protests and the legal protections afforded to demonstrators. While the court maintained that officers still have a general duty to “take reasonable care to avoid the risk of harm,” it has seemingly raised the bar for proving police liability for injuries.
Protest groups are deeply concerned that this ruling could embolden heavier-handed policing tactics at rallies, as it may be more difficult to hold law enforcement accountable for reckless actions. There are fears it will have a chilling effect on free expression and the right to protest.
Protester faces huge legal bill
For Laura Cullen personally, the Court of Appeal’s judgment is devastating. Not only has she lost her $800,000 compensation, but she has been ordered to repay $103,000 in legal costs already awarded to her, plus cover the state’s legal fees for the appeal. As someone who suffered significant injuries and amnesia from the incident, it is a bitter blow.
The case highlights the risks protesters face, both physically and legally, when exercising their democratic rights. It remains to be seen whether this decision will face a further High Court challenge, but for now it reshapes the landscape of police powers and public demonstrations in Australia. Activists will be watching closely to see how this plays out at future protests and examining the legal avenues still available to them.
