Although the Council was negligent – its actions were not so unreasonable that they were not reasonable

Dennison v Brisbane City Council [2026] QSC 83

Background

A barricade consisting of orange mesh and four metal stakes had been erected around footpath works in a suburban area in Brisbane, under the responsibility of the Brisbane City Council (Council). Mr Dennison, who was 64 at the time, was riding his pushbike along the footpath in the early hours of the morning in December 2009 when he collided with the barrier. Mr Dennison, who had suffered catastrophic injuries including the loss of his left eye and a traumatic brain injury, had no recollection of the incident.

The Court nevertheless found that the area was poorly lit, the mesh was not reflective, and four witches hats that had originally been placed adjacent the barrier were unlikely there at the time of the incident.

Legal issues

The Council admitted that it owed the Plaintiff a duty of care but alleged that it had taken sufficient steps to alert users of the footpath to the hazard. It also relied on s 36 of the Civil Liability Act 2003 (Qld) (CLA) which provides that a public authority will not be liable for a breach of duty unless the conduct of the Council was so unreasonable, that no reasonable authority would accept that conduct as a proper exercise of the authority’s functions (Wednesday unreasonableness).

The Court’s findings

Historically, the courts have adopted the interpretation of s 36 applied by the court in Hamcor Pty Ltd v State of Queensland [2014] QSC 224 – which confined the operation of the section to breaches of statutory duty (as implied by the heading to the section). After stepping through a careful consideration of the relevant extrinsic materials, Crowley J held that the section is not confined to statutory duties and extends to tortious duties more broadly (a similar finding having previously been made in respect of the NSW CLA in Seqwater v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162).

Although the Court found that there were shortcomings in the Council’s conduct, including non-compliance with standards/policies, failing to provide reflective material and sufficient lighting, Crowley J found that the Plaintiff had failed to established that the Council’s conduct fell sufficiently short to satisfy the Wednesday unreasonableness standard, meaning the Plaintiff’s claim failed.

Implications of the decision

This decision increases the threshold of negligence that a plaintiff must prove to succeed in a claim against a statutory authority. The decision will have similar consequences for any co-tortfeasors in such an action, who are not protected by the statutory exemption. As such, it will be important for defendants to ensure that all relevant contributors are identified and joined to a claim, in circumstances where the public authority could escape a finding of liability.

The decision may also give plaintiffs and co-tortfeasors alike pause for thought before joining a statutory authority to a proceeding, requiring parties to weigh the costs and risks of doing so against reduced prospects of success.