On 17 June 2026, the High Court delivered judgment in Cullen v New South Wales [2026] HCA 19, dismissing the appeal and finding in favour of the State of New South Wales.

The appeal concerned the scope of the duty of care owed by police to bystanders when intervening to address a perceived risk at a protest march, and whether that duty had been breached.

Those issues arose as the appellant, a bystander at an Invasion Day march in Sydney in 2017, suffered serious injuries after being knocked to the ground while police were effecting an arrest on a participant who had assaulted an officer following police intervention to address a perceived threat to public safety. The perceived threat to public safety followed a protester’s attempt to light an Australian flag using accelerant while surrounded by members of the crowd. To prevent that occurring, police rushed into the crowd discharging at least one fire extinguisher, leading to a confrontation between members of the crowd and the officers. It was the action of those officers that was said to have been negligent.

The High Court found that the officers owed a duty of care to bystanders in the crowd, including the plaintiff, who were foreseeably at risk of physical injury by the officers’ intervention. In doing so they found there was no inconsistency between the statutory functions of the officers and a common law duty of care.

However, the High Court found that the officers had not breached their duty. In so finding, the High Court considered how the non-exhaustive considerations in s 5B of the Civil Liability Act apply to the assessment of breach and held that although s 5B(2) does not expressly address the need to consider “conflicting responsibilities”, there is no doubt they have to be considered. Further, the officers’ conflicting responsibilities meant their intervention was reasonable. The High Court considered that each of the primary judge’s alternative courses of action, involving either less force or no action, were not decisive enough and were unsatisfactory, given the dynamic and unpredictable context of a protest march in which there were competing threats to the safety of members of the crowd and any intervening officers. Accordingly, while the High Court found the officers owed a duty of care, it recognised that they were making difficult decisions, with limited time and under pressure. In such situations, the officers’ “conflicting responsibilities” militate against a finding of breach of duty.

This decision is significant for public authorities called upon to make difficult decisions under time pressure. In such situations the need to consider the public authority’s “conflicting responsibilities” will be a significant barrier to establishing a breach of duty.

Nicholas Newton appeared with G O’L Reynolds SC, instructed by the NSW Crown Solicitor’s Office.
The judgment and other information can be found here:
https://lnkd.in/gCx9D67S