Supreme Court Clarifies Section 36 CLA Defence For Local Authorities

The Supreme Court has delivered clarification and detailed reasoning regarding the practical application of section 36 of the Civil Liability Act 2003 (Qld) with respect to a claim for negligence against a Council performing works, which included placing a barricade across a footpath.

In issue

• Whether Brisbane City Council (Council) breached its duty of care to the plaintiff riding his bicycle on a footpath which had been barricaded overnight to allow a concrete footpath to cure
• Whether Council took steps to properly warn of the risk
• Whether plaintiff exercised reasonable care
• Whether Council took reasonable precautions to prevent harm to the plaintiff
• Whether Council was a public authority exercising a statutory function in terms of the work being performed
• Whether section 36 of the Civil Liability Act 2003 (Qld) applied.

The background

The plaintiff was riding his bicycle on 18 December 2009 between 4:10 am and 4:20 am when he collided with an orange mesh barricade that had been set up by Council across the footpath the day before. The plaintiff fell from his bicycle as a result of the collision and impaled his left eye on a road dog that had been holding up one corner of the barricade. The plaintiff was later located face down on the ground by a local baker and had no independent recollection of how the incident occurred.

The day prior to the incident, Council had reinstated the concrete footpath, after previously digging it up to carry out underground works on a water main. A temporary orange mesh barrier held up by yellow road dogs was constructed around the new section of the footpath to allow it to cure overnight, connected by cable ties to an adjacent black metal fence. The roadway side of the footpath remained open for pedestrians or cyclists to use. Council workers also gave evidence that four brand new orange witches hats with a retroreflective strip had been placed on each corner of the barrier, however it was uncertain whether any were at the scene at the time of the incident.

The decision at trial

Although there were no witnesses to the incident and the plaintiff had no recollection regarding what occurred, Crowley J stated there was sufficient basis upon which he could make factual findings and draw inferences regarding how the incident occurred. In that respect he was satisfied on the balance of probabilities that the plaintiff was travelling at the speed of a conservative cyclist and because of reduced visibility due to poor lighting and lack of other delineation and signage, he did not see the barricade and was unable to avoid it. It was not accepted that the incident occurred because the plaintiff did not keep a proper lookout.

Further, Crowley J did not accept that the risk of harm posed by the barricade was obvious to a reasonable person in the position of the plaintiff such that Council had no obligation to warn in terms of application of section 15 of the Civil Liability Act 2003 (CLA), as he had determined that the barricade was not clearly visible, delineated or properly signed.

His honour also found that the duty owed by Council was to take reasonable care to guard against the materialisation of the risk of personal injury resulting from a collision with the barricade, which required it to take reasonable care to ensure the barricade was visible at night to approaching cyclists, warn cyclists of its presence, delineate the position of the barricade and guide cyclists safely around it. It was not accepted that the use of road dogs presented as a separate risk. In Crowley J’s opinion, subject to the application of section 36 of the CLA, Council failed to take reasonable care and breached its duty of care to the plaintiff because it failed to take adequate precautions.

The plaintiff argued that section 36 did not apply in a claim for negligence but rather its operation was limited to claims for the tort of breach of statutory duty, relying on the decision and reasoning in Hamcor Pty Ltd v Queensland [2014] QSC 224. In contrast, Council argued that the approach to the section as applied in Seqwater v Rodriguez and Sons Pty Ltd (2021) 393 ALR 162 should be adopted.

In following the interpretation of section 36 adopted in Seqwater, Crowley J considered the Explanatory notes and other relevant extrinsic materials regarding the context and purpose of the section. His honour also observed that the Ipp report recommendations provided the foundation for the provisions and that the main purpose of the CLA was to facilitate the ongoing affordability of insurance.

Further, Crowley J observed that the extrinsic material was consistent with the broader construction of section 36 to extend to actions for an alleged breach of a duty to take reasonable care and not restricted to actions for breach of a statutory duty, giving effect to the recommendations of the Ipp Report.

In circumstances where it was not in dispute that Council was a public authority and pursuant to section 901 of the Local Government Act had 'control of all roads' within its area, including footpaths, Crowley J determined that such a power was a statutory function. The footpath works being carried out, including erection of the barricade, formed part of Council’s statutory functions.

Although his honour considered Council had failed to comply with relevant standards, guidelines and its own internal policies to a certain extent, he did not consider that the plaintiff had satisfied the requirements of section 36(2), observing that no evidence was produced as to what a reasonable council would have done. Further he was not satisfied that the way Council exercised its functions was so unreasonable in the circumstances that no other public authority could properly have considered it to be a reasonable exercise of its functions. In the circumstances, Council was not liable for the alleged breach of duty.

Implications for you

The decision provides further clarity for councils and other authorities exercising their functions regarding how section 36 of the CLA operates in practice in relation to defending claims. Additionally, the decision provides a framework for plaintiffs in terms of the higher threshold of evidence required to satisfy section 36(2).

Dennison v Brisbane City Council [2026] QSC 83

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