QSC 83, Section 36 Shields Council Despite a Finding of Breach
Court: Supreme Court of Queensland
Decision of: Crowley J
Judgment date: 1 May 2026
For public liability lawyers, Dennison is a useful reminder of how much weight section 36 of the Civil Liability Act 2003 (Qld) can carry, even where a council’s own conduct falls short of what reasonable care would require.
Facts
In the early hours of 18 December 2009, between approximately 4:10am and 4:20am, the plaintiff was riding his bicycle along a footpath, at Aspley, when he collided with a temporary barricade Brisbane City Council (“the Council”) had erected the previous day. The barricade, orange mesh on metal stakes, had been put up to protect freshly poured concrete while it cured overnight, and covered most of the footpath, leaving only a narrow strip near the road for pedestrians.
Four witches’ hats had originally been placed around the barricade for visibility, but by the time of the incident, they were gone. There was no effective lighting nearby (as the closest streetlight was out), no warning signs, and the stakes were not reflective or illuminated.
There were no witnesses to the accident, and the plaintiff had no memory of the collision. The Court, therefore, reconstructed events from circumstantial evidence. In doing so, it found the plaintiff was travelling around 15km/h and tried to pass the barricade, on its right, but in the low light, he failed to appreciate its full extent and struck one of the metal stakes. Somewhat horrifically, the stake penetrated his eye socket and cranial cavity, causing catastrophic injuries, including a significant brain injury.
Council’s duty of care was not in dispute. The contested issues were whether that duty had been breached, and whether the heightened protection in section 36 of the Civil Liability Act 2003 applied to defeat the claim.
Decision
Applying ordinary negligence principles, Crowley J found Council would have been liable as it failed to adequately light, delineate or warn of the hazard created by the barricade, and that failure caused the plaintiff’s injuries.
The claim ultimately failed, however, because of the operation of section 36. His Honour held the section is not confined to claims based on breach of a specific statutory duty, but extends to negligence claims generally where the public authority’s conduct involves the exercise of a statutory function, here being the Council’s control and maintenance of the footpath. In reaching this view, Crowley J declined to follow the Queensland Court of Appeal’s narrower reading in Hamcor, instead adopting the broader approach taken by the NSW Court of Appeal in Seqwater v Rodriguez and Sons Pty Ltd (2021) 393 ALR 162.
Once engaged, section 36 imposes a markedly higher bar than ordinary negligence in that the plaintiff must show Council acted in a way so unreasonable that no reasonable public authority could properly have considered it reasonable.
Although the Court identified clear deficiencies, failing to replace the witches’ hats, providing adequate lighting or reflective markers, or otherwise warning of the hazard, these were characterised as errors of judgment falling within a range of responses reasonably open to Council. Consequently, the plaintiff could not clear the section 36 threshold, and the claim was dismissed notwithstanding the findings of breach and causation.
The Court nonetheless assessed notional damages at approximately $675,000, consisting of general damages and past care as the principal heads of loss.
What This Means for Public Liability Claims
Dennison confirms section 36 operates as a powerful shield for local authorities, applying broadly to negligence claims arising from the exercise of statutory functions, not only claims framed as breach of a specific statutory duty. Even where a council creates a hazard and falls short of reasonable care, liability will not attach unless its conduct meets the “so unreasonable” threshold discussed above.
For anyone injured on council-controlled land or infrastructure, this decision underscores why early, well-directed advice matters. Establishing breach is often only the first step, as public liability claim lawyers, we also need to work through whether a statutory authority defence applies and, if so, whether there are other parties who may share responsibility for the hazard and any consequent personal injuries.
Practically, decisions like this are likely to push plaintiffs, wherever possible, towards pursuing contractors, subcontractors and other non-public-authority parties involved in site control or hazard management, who do not have the benefit of the same statutory defence. Identifying the full range of potential respondents early, and understanding how section 36 of the Civil Liability Act 2003 might apply to each of them, is precisely the kind of strategic groundwork our public injury lawyers undertake at the outset of a claim, rather than after the fact.
If you’ve been injured due to a hazard on council land, a construction site, or another public space, we can help you understand where liability may lie and what your options are. Call 1300 557 884 for a confidential discussion, available 24/7, or submit an online enquiry.
At Fisher Dore Lawyers, we work on a no win, no fee basis and offer obligation-free consultations so there is absolutely no financial risk in getting the expert advice you need from the very start.
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Compiled by Michael Biscak | Special Counsel and Ruby Tucker | Associate
