State of New South Wales v Cullen [2024] NSWCA 310 (20 December 2024) (Gleeson and Kirk JJA, White JA) is a decision of the NSW Court of Appeal dealing with allegations of assault and negligence by NSW Police.

Police were in attendance at an authorised protest march.  It had been a condition of the approval that there would be no attempt to set fire to any flags or effigies. The march stopped at an unscheduled spot where a speaker addressed the crowd. Police thought the speaker was about to set fire to an Australian flag and moved in with fire extinguishers which were used to prevent any fire.  The result of police pushing through the crowd was that there was a ‘melee’.  One police officer had been tasked with filming the event which she was doing when someone knocked the video camera out of her hand.  Another police officer observed that and moved to arrest the person that had struck the officer before he could disappear into the crowd.  During the arrest both the officer and the offender fell to the ground knocking over a bystander who struck her head and suffered serious injuries. The bystanders sued the state of NSW alleging both negligence and battery by the police.

The outcome of this case (which was a verdict in favour of the plaintiff was set aside on appeal) is outside the scope of this blog.  What is of interest is what the court had to say about the role of the police in attempting to prevent, or extinguish a fire as the issue of whether anyone can fight a fire has come up here before – see for example Is it illegal to put out fire with private firefighting equipment in Victoria? (September 19, 2018) and Is there an obligation to call triple zero? (April 3, 2018).

In this case an issue was the application of s 43A of the Civil Liability Act 2002 (NSW).  That section says:

(1)        This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2)        A “special statutory power” is a power–

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3)        For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

If the police were exercising a ‘special statutory power’ then the test for liability was higher than common law negligence.  If the plaintiff could show a duty of care, then at common law she only needed to show that the police failed to take ‘reasonable care’. If they were exercising a ‘special statutory power’ then she had to show that their conduct was ‘so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power’.

The Court held that in moving in to extinguish or prevent a fire the police were not exercising a special statutory power.  Gleeson and Kirk JJA said (at [41] ‘when a fire brigade unit drives to a fire it is doing something that does not require specific statutory authorisation…’  And at [46]:

… rushing forward and using a fire extinguisher to put out or prevent a fire are actions anyone can do without specific statutory authority. And that is so regardless of whether or not the actions are characterised as responding to a breach of the peace. There was thus no special statutory power being exercised.

White AJA dissented in the final outcome but agreed that police were not exercising a special statutory power (see [214]-[222]).

Conclusion

Although not critical to the decision these brief comments confirm that statutory power is not required to fight fires.  Anyone can take action to fight a fire, or in this case prevent a fire.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

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