Invasion Day Protester Stripped of $800k Compensation

The New South Wales court of appeal has overturned a judgement providing landmark ruling on the duty of care NSW police owed to people attending protests, and ordered an injured protester to repay $800,000 awarded in compensation, as well as more than $100,000 in legal costs.

Laura Cullen was injured in Sydney’s 2017 Invasion Day rally when she was knocked to the ground by a police officer and injured significantly.

According to the judgement, the rally stopped in Alexandria’s Buckland Street after a speaker tried to set an Australian flag on fire, despite organisers promising police no such actions would occur that day.

A police officer was filming the effort to extinguish the fire when a protester knocked the camera out of her hand, which prompted another officer, Sgt Livermore, to arrest them.

Cullen, who was not involved in any of these incidents, was knocked over during the arrest, and struck her head on the ground, resulting in retrograde amnesia. As such, she has no recollection of attending the rally.

In 2023, a supreme court judge found that Spg Livermore “acted recklessly or unreasonably” when carrying out the arrest as he “ignored the strong potential of harm to persons close by”. Cullen was awarded $800,000 in damages, plus legal costs.

The ruling was a landmark decision in defining the responsibility police officers had to people attending protesters.

Decision overturned on appeal

Shortly before Christmas, during an appeal of the decision, Justices Fabian Gleeson and Jeremy Kirk found that Cullen hadn’t established that the actions of the officer had caused her injury.

They decided that “it was the distinct, significant criminal action” of another protest that led to the arrest “and it was the difficulty of effecting that lawful arrest which led to the responding being injured”.

“No doubt the respondent would not have been injured as she was if the officers [extinguishing the fire] had not acted as they did,” the judgment said. “But for legal purposes, the chain of causation from their actions to her injuries was broken.”

The court also found that Cullen couldn’t claim compensation for battery, saying it was “apparent that Livermore was not conscious of the presence of the respondent and that he did not intend to make any contact with her.”

One judge, Justice Richard White, dissented, saying that “the police foresaw the risk of harm alleged by Ms Cullen” when planning for the protest, and therefore recognised “sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered”. This risk also applied to protesters.

However, all judges rejected an argument from lawyers for the state that “officers owed no duty of care” to those who attended the protest, and stated that police should still “take reasonable care to avoid the risk of harm” to those “in the immediate vicinity of an operational response”.

The decision means Cullen is no longer eligible for $800,000 in compensation, with the court ordering her to repay $103,000 she had been paid to cover legal costs and to cover the state’s legal fees.