Cullen v New South Wales

High Court of Australia · 2026

Cullen v New South Wales [2026] HCA 19

Police rushed into a protest crowd and a bystander fifteen metres away was injured in a separate scuffle. The Court agreed she was owed a duty of care, and she still lost. Where was the case actually fought?

What happened?

On 26 January 2017 the appellant was watching an Invasion Day protest march of about 5,000 people in Sydney when she was knocked to the ground and suffered serious head injuries ([1]). Police planning for the march had foreshadowed a condition that there be no flag burning. At an unplanned stop a speaker was thought to be carrying lighter fluid, and he bent down twice and squirted liquid onto a flag ([10]-[12]). Officers of the Operational Services Group rushed unannounced into the crowd towards him, and at least one fire extinguisher was discharged ([12]).

Within seconds there was pushing and many in the crowd were angry ([12]). Some 15 metres away, a participant struck a constable's camera arm. An officer tried to arrest that participant, and in the struggle the two collided with the appellant ([13]). The primary judge found the officers negligent and the State vicariously liable, and gave judgment for the agreed sum of $800,000 ([2]). A majority of the Court of Appeal allowed the State's appeal ([2]), and the appellant came to the High Court by special leave.

What did the Court decide?

The appeal was dismissed ([49]). Six Justices (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) gave joint reasons at [1]-[49], and Edelman J gave separate reasons at [50]-[101]. The reasons deal with duty, then breach, and the joint reasons say the third issue, scope of liability, did not arise ([3]). The State had not sought costs, so there was no order as to costs ([49]).

Proposition

What is the principle?

Where physical injury is said to result from the defendant's own positive act, the class of persons to whom a duty of care is owed comprises those exposed to a reasonably foreseeable risk of physical harm from that act. The duty is established at a high level of generality, and the relationship between the conduct and the particular injury is left to breach, causation and scope of liability.

The joint reasons state this at [25]: "In a paradigm case of physical injury suffered by a plaintiff as a result of the defendant taking some positive action, the class of persons to whom the defendant owes a duty of care comprises those persons exposed to a reasonably foreseeable risk of physical harm from the defendant's action." They call these "well-established principles" ([26]) and held the Court of Appeal majority's confinement of the class to those in the immediate vicinity "impermissibly narrow" ([24]).

Two limits on the State's arguments are also in the joint reasons. The distinction between careless acts and omissions to prevent a third party's act answered the reliance on Modbury Triangle Shopping Centre v Anzil ([31]). Sullivan v Moody and Tame v New South Wales were "not directed to the paradigm case" ([32]), and the joint reasons found "no tension" between the Police Act functions and the common law duty ([32]).

A second proposition concerns breach. Argument proceeded on the assumption that s 5B of the Civil Liability Act 2002 (NSW) applied ([34]), and the Court did not decide that point. The question under s 5B(1)(c) was whether a reasonable person in the officers' position would have taken either of two less forceful responses identified by the primary judge, or no action at all ([40]). The joint reasons held that such a person would not ([48]), and gave weight to the officers' conflicting responsibilities ([35]) and to the pressure of the situation ([47]).

Why does this case matter?

Winning the first question did not win the case, and that is the practical lesson. A plaintiff who shows a duty has shown the least contested part of the claim, and a student who writes most of an answer there leaves the real dispute thin.

The case also shows what kind of argument a litigant faces when the defendant is a public body acting under pressure. The primary judge had found the intervention unnecessary and out of proportion ([16]-[17]), and the plaintiff still lost in the High Court, so a finding that the defendant acted badly in hindsight does not carry a plaintiff far. Expect an examiner to reward the answer that sets out what the defendant knew and what each alternative would have cost.

Exam and application relevance

On a problem where the defendant's own act injures a person physically, state the duty briefly, and do not rebuild it from the salient features of Sullivan. Identify the class of persons exposed to the risk of physical harm from the act and show that the plaintiff belongs to it. Then spend your effort on breach, which is where the joint reasons decided the case, and treat causation and scope of liability as separate questions that the Court did not reach.

Mark the difference between this case and an omission case. Where the complaint is purely a failure to protect against a third party's act, Modbury and the cases cited with it are the relevant ground. The joint reasons accept that the line between act and omission may at times be difficult to draw ([31]), so where the facts mix the two, identify the positive conduct that created the risk and argue from it.

Do not claim that the Court decided that s 5B governed breach: it assumed that on the parties' argument ([34]), and the Civil Liability Act is a NSW statute. Do not write that Edelman J's reasons are the Court's. He separately held that the officers owed a duty imposed by law, left open that a duty by assumption of responsibility could have been argued, and said that distance alone could not exclude the plaintiff because the criterion is reasonable foreseeability ([65], [68]-[69]). He also thought that a separate crowd might have fallen outside the duty ([74]).

Check your understanding

1. The Court of Appeal majority confined the duty to people "in the immediate vicinity" of the police response. Why did the High Court reject that confinement, and what did the joint reasons say the duty depends on instead? 2. The State argued that police should not be liable for the criminal acts of others and cited Modbury. What distinction did the joint reasons draw to answer that argument? 3. The primary judge found that the intervention was unnecessary and the officers' response disproportionate ([16]-[17]). Why did the joint reasons still hold that no breach was shown?