Background
On 17 December 2009, the defendant, Brisbane City Council carried out works on a concrete footpath running alongside Zillmere Road in Aspley. The works required part of the footpath to be excavated and then re-concreted. To protect the newly laid concrete, the council workers erected a temporary barricade across part of the footpath, consisting of orange plastic mesh held up by yellow metal stakes. The barricade was not retro-reflective or illuminated.The following day, the plaintiff, Victor Dennison, was riding a bicycle along that same footpath in Aspley in the early hours of the morning, when he collided with the barricade and became impaled through the left eye with one of the metal stakes. The stake penetrated his eye socket and entered his brain (incident). As a result of the collision, the plaintiff suffered catastrophic injuries, including his left eye being 'obliterated', fractures to the eye socket, and a traumatic brain injury involving penetration of the frontal lobe and significant cognitive impairment.
Proceedings
The plaintiff commenced proceedings against the defendant for negligence. By the time of trial, however, the plaintiff was under a legal incapacity, and the proceedings were continued by his wife as his litigation guardian.
The defendant contested liability on the bases that:
- while it owed a duty to take reasonable care for the safety of persons using the footpath, the nature and scope of the duty was not as extensive as claimed by the plaintiff.
- it did not breach its duty of care, as the precautions it took for the management of any risks posed by the erection of the barricade were reasonable and sufficient in the circumstances.
- section 36 of the CLA ought to apply; and
- even if liability were established, the plaintiff failed to take reasonable care for his own safety and the claim should be reduced for his contributory negligence.
Section 36 of the CLA
Section 36 of the CLA provides that in respect of proceedings against public authorities based on breach of statutory duty, 'an act or omission of the authority does not constitute a wrongful exercise or 3 DWF | Case Note: Dennison v Brisbane City Council [2026] QSC 83 #7290685v1 failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions'.
The Queensland Courts' interpretation of the application of section 36 has been limited. Guidance has historically been taken from the Supreme Court of Queensland decision in Hamcor & Anor v State of Queensland & Ors ,1 which held that the heading of section 36, which includes 'in proceedings against public or other authorities based on breach of statutory duty', meant that the provision only applied to claims based on a breach of statutory duty.
A more recent NSW Court of Appeal decision in Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd,2 however, has found that section 36 ought to be applied more broadly to include any claim and should not be limited by its heading.
Supreme Court findings
In finding that section 36 ought to apply in the circumstances, Justice Crowley held:
- the application of section 36 had been extensively considered in the Court of Appeal decision in Rodriguez, which rejected the Hamcor findings and concluded that the better view was that section 36 should not be read down as applicable only to a proceeding in which the cause of action is a breach of statutory duty. Whilst not bound by the decision in Rodriguez, Justice Crowley found it highly persuasive;
- extrinsic materials available and relating to the CLA were in favour of wider approach than taken in Hamcor. Specifically:
- the second reading speech and the Explanatory Notes to the Civil Liability Bill 2003 stated that the overall aim of the CLA was to protect defendants;
- the introductory outline section of the Explanatory Notes to the Civil Liability Bill made it clear that the main purpose of the CLA was to facilitate the ongoing affordability of insurance; and
- the Explanatory Notes stated that the draft Bill implemented expert recommendations including the Ipp Report, which recommended that a public authority should be able to avail itself of a 'policy defence' where it could 'answer a negligence claim by pleading that, although it failed to take reasonable care, it did so on the basis of financial, economic, political or social considerations.'
- the erection of the barricade formed part of the defendant's 'statutory functions' and it was 'artificial' to view the erection of the barricade as a separate activity unconnected to the footpath works.
Justice Crawley ultimately found the defendant's acts or omissions in erecting the barricade were not so unreasonable in the circumstance that a no public or other authority with such functions could properly consider them to be a reasonable exercise of its functions. Accordingly, Justice Crowley's decision on the operation and application of section 36 required him to find in favour of the defendant.
Justice Crowley otherwise held that were it not for the application and operation of section 36, he would otherwise have been satisfied, on the balance of probabilities that the defendant owed a duty of care to the plaintiff; that it breached its duty of care; and that the plaintiff sustained injury, loss and damage caused by its negligence.
Implications of the decision
The Supreme Court's decision in Dennison will now require plaintiffs in claims against public authorities to demonstrate a high level of negligence – that, in the circumstances, the conduct was so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions. Whilst a relief for public authorities subject to claims, the decision may prove troublesome for non-public authority defendants, who are potentially left with a larger apportionment of the liability risk.
The plaintiff (by his litigation guardian) has not, at this stage, lodged an appeal.
