By David Slatyer, Partner and Ellene Eliadis, Paralegal

In the early morning of 18 December 2009, the 64-year-old Plaintiff was riding his bicycle along a footpath in Aspley when he collided with a temporary barricade erected by the Brisbane City Council (“BCC”). The Plaintiff sustained catastrophic injuries, including the loss of his left eye and a traumatic brain injury.

The Court accepted that the barricade had been installed the previous day to protect newly laid concrete. It was comprised of orange mesh secured by four metal stakes. Although brightly coloured, the mesh was not reflective or fluorescent, and no warning signage had been installed around the site. While four witches’ hats had initially been placed around the barricade, Crowley J was not satisfied they were present at the time of the incident. The location was poorly lit, and visibility conditions made the barricade difficult to discern at a distance.

Issue

The BCC accepted that it owed the Plaintiff a duty of care. However, it contended that the duty was not as extensive as alleged and that the precautions taken in relation to the barricade were reasonable in all of the circumstances.

The principal issue before Crowley J was whether s36 of the Civil Liability Act 2003 (Qld) (“CLA”) applied to the claim. Section 36 provides that a public authority will not be found liable for breach of a statutory duty unless its conduct was so unreasonable that no reasonable authority could regard it as a proper exercise of its functions.

Judgment

Although there were no witnesses and the Plaintiff had no recollection of the incident, Crowley J found that there was sufficient circumstantial evidence to conclude that the Plaintiff was riding at a conservative speed at the time of the accident, but, due to poor lighting and limited visibility, was unable to see the barricade. He attempted to veer right but collided with the obstruction and impaled himself on a metal stake. The Court rejected any suggestion that the Plaintiff failed to take reasonable care for his own safety.

Crowley J held that, applying the general principles of negligence in ss 9 and 10 of the CLA, the BCC breached its duty of care to the Plaintiff. The risk of a cyclist colliding with the barricade was reasonably foreseeable and not insignificant. The BCC owed a duty to make the barricade visible, to warn of its presence and to provide a safe route around it. The BCC failed to discharge this duty by using non‑retroreflective materials, assuming existing lighting would be adequate, failing to install warning signs, using unsecured witches’ hats and not providing markers to direct cyclists around the obstruction.

Despite the above findings, the claim failed on Crowley J’s application of s 36 of the CLA. As discussed above, s36 imposes a higher threshold for liability to a public authority than the ordinary standard of negligence. The Plaintiff submitted that, consistent with Hamcor Pty Ltd v State of Queensland,[1] the application of s36 should be confined to claims involving breach of a statutory duty, as seemingly provided for in the heading of the section. Conversely, the Defendant argued that s36 should operate as a qualified exemption to liability in circumstances of this kind, aligning with the New South Wales decision in Seqwater v Rodriguez & Sons Pty Ltd.[2]

Crowley J ultimately accepted the Defendant’s interpretation. After considering the Explanatory Notes and other extrinsic materials to the CLA, his Honour concluded that s36 was intended to extend to actions alleging a negligent breach of a duty to take reasonable care.

Although the BCC had not fully complied with its relevant standards and internal policies, Crowley J found that the Plaintiff had not produced evidence to demonstrate what a reasonable council would have done in the circumstances (the counterfactual). In the absence of such evidence, his Honour was not satisfied that the BCC’s conduct was so unreasonable that no other public authority could regard it as reasonable. Judgment was therefore entered into for the Defendant.

Despite the claim being dismissed, the Court assessed damages on a notional basis at approximately $675,000.

Implications

The decision upholds the additional protection afforded to public authorities by the CLA, by imposing a higher negligence threshold / operating as a qualified exemption to liability. Plaintiffs will now face a far more demanding path to establishing liability against a public authority and will need to adduce evidence to prove what a reasonable council would have done in the circumstances. In practice, the outcome of the decision is likely to deter Plaintiff’s from making claims against public authorities.

[1] [2014] QSC 224.

[2] (2021) 393 ALR 162.