The High Court has dismissed an appeal by a woman injured at an invasion day protest after deciding a specialist police riot squad “OSG” didn’t breach its duty of care to her, ending a vicarious liability claim against the state.
Laura Cullen suffered a serious head injury at the Sydney 2017 march which became hostile after a speaker attempted to light a flag and a small team of NSW police from the Operational Services Group ("OSG") interceded for the safety of other protesters.
The OSG actions in an emotional environment sparked a melee during which a protester knocked a camera out of the hands of a constable asked to film the event. A more senior officer trying to help her and arrest the protester then collided inadvertently with Cullen knocking her to the ground.
A trial judge had awarded her $800,000 in damages and found the police could have used less incendiary methods for crowd control but this was overturned in the court of appeal on very specific reasoning that the victim of a criminal assault committed outside the crowd to stop evidence being gathered wasn’t owed a duty – it was too remote: Cullen v State of New South Wales (2023) Aust Torts Reports ¶82-941; [2023] NSWSC 653 and State of New South Wales v Cullen (2024) Aust Torts Reports ¶83-148; [2024] NSWCA 310.
The High Court (Gageler CJ, Gordon J, Steward J, Gleeson J, Jagot J and Beech-Jones J) found the OSG did owe Cullen a duty of care – there was no need to define the duty so tightly – but found there was no breach because the dynamic situation of the risks of a fire proximate to a densely packed crowd warranted their decisive action.
See Wyong Shire Council v Shirt [1980] HCA 12; [1978] 1 NSWLR 631 which remains the relevant authority and see Ipp J’s general discussion on the Civil Liability Act 2002 (NSW), s 5B(2) in Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818; [2005] NSWCA 418 at [45].
Edelman J agreed but wrote a separate judgment explaining his reasoning.
Source: Cullen v New South Wales [2026] HCA 19, 17 June 2026