The Queensland Court of Appeal have handed down their decision in Dennison v Brisbane City Council [2026] QCA 193, clarifying the duty of care a Council has to protect persons from harm caused by its acts and/or omissions.
Background
The Appellant, Mr Victor Dennison, represented by Hall Payne Lawyers, was riding his bicycle along the footpath of Zillmere Road in Aspley just prior to dawn on the 18th of December 2009.
Unknown to Mr Dennison, Brisbane City Council had dug up part of the footpath to carry out underground works the day prior. The works were largely completed with a wet concrete footpath being left to cure overnight. To protect the concrete while it cured, the Council placed a mesh barricade around the concrete.
The Council did not erect any signage or warning lights/reflectors to warn of the hazard or to direct people using the footpath towards a safe route around the hazard. As such, Mr Dennison did not see the hazard in time and collided with the barricade, suffering significant personal injury as a result.
Mr Dennison commenced a common law claim for damages against the Council in the Supreme Court of Queensland (Dennison v Brisbane City Council [2026] QSC 83) but was unsuccessful at Trial in the first instance.
Justice Crowley found that while the Council would have ordinarily been held liable in negligence for causing his injuries, section 36 of the Civil Liability Act 2003 (“the Act”) applied and therefore the Council was exempt from Liability.
Mr Dennison Appealed this decision.
Section 36 of the Civil Liability Act
The relevance of section 36 of the Act is that, if it applies, it significantly increases the burden an injured person has to prove negligence on the part of a public or other authority.
Section 36(1) the Act provides that, where a proceeding is brought based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority, section 36(2) will be enlivened.
If section 36(32) of the Act applies, as it did in this case, a claimant must prove a significantly higher duty of care against the relevant public or authority to prove that they were negligent.
Mr Dennison was therefore required to prove that Council’s actions were, 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 Decision
The Court of Appeal considered that section 36(1) of the Act did apply to Mr Dennison’s case, and accordingly, were required to consider section 36(2).
The Court found a notional public authority could not reasonably consider the Council exercised its functions properly, and that the steps taken by Council fell below the standard expected of them.
The Court confirmed that the Council did not exercise its function properly by failing to provide at least reflective signs (if not hazard lighting or other precautions) to give advance warning of the barricade to divert persons safely away from the barricade, and that the risk of Mr Dennnison suffering catastrophic injuries as a result of that failure was not remote.
Mr Dennison was therefore successful on appeal in proving the Council breached its duty of care. He was awarded damages in the amount of $675,926.77 plus interest, and costs for the proceedings both at first instance and the Appeal.
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