An elderly cyclist who was injured when he crashed into a mesh barricade on a footpath has lost his bid for damages from Brisbane City Council (BCC).
Retiree Victor George Dennison lost an eye and suffered a brain injury during a 4am ride in 2009, when the then 64-year-old crashed into the temporary fence the council had erected around setting concrete, spearing his head onto a metal stake.
In a judgment delivered on Friday in the Brisbane Supreme Court, Justice Lincoln Crowley said the decision hinged on whether Section 36 of the Civil Liability Act 2003 (Qld) (CLA) – regarding proceedings against public or other authorities based on breach of statutory duty – applied.
Justice Crowley ultimately decided that s 36 did apply, and that Mr Dennison had not discharged the onus of showing that the council’s “act or omission was 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” under s 36(2).
Mr Dennison, through his wife as litigation guardian, sued BCC for the injuries he claimed were caused by BCC’s negligence by failing to warn footpath users of the hazard.
BCC admitted it owed a duty of care to footpath users but that the nature and scope of the duty owed was not as extensive as Mr Dennison claimed.
Regardless, it contended that it did not breach its duty of care, saying the precautions it took for the management of any risks posed by the erection of the barricade were reasonable and sufficient in the circumstances.
“The nature of the hazard and risk posed by the barricade, whether it was adequately delineated, signed and visible, and whether it was an obvious risk, such that the BCC owed no duty to warn Mr Dennison of its presence, are all factual issues to be determined,” Justice Crowley said at the beginning of his 97-page judgment.
“So too are questions concerning the mechanism and circumstances of the collision and whether Mr Dennison was taking proper care and precautions for his own safety at the time,” he said.
He said the crucial issue was to determine whether s 36 of the applied and, if so, whether Mr Dennison had proved that BCC’s conduct was so unreasonable that it satisfied the higher threshold for liability prescribed by s 36(2).
If not, the matter was to be determined according to the usual standard of negligence contemplated by s 9 of the CLA, he said.
With no witnesses, the bulk of evidence about the circumstances of the crash came from a Workplace Health and Safety Queensland investigation and photos taken at the scene.
Justice Crowley said low lighting and poor visibility were major contributing factors.
“In the absence of the barricade being clearly visible and properly signed and delineated, the hazard that it posed was not apparent until it was too late. By then, there was no way for Mr Dennison to safely navigate the barricade. In my opinion, the risk of harm posed by the barricade would not have been obvious to a reasonable person in the position of Mr Dennison,” he said.
“I find the duty owed by the BCC to Mr Dennison to take reasonable care to guard against the materialisation of the identified risk required it to take reasonable care to ensure that the barricade would be visible at night to approaching cyclists; to warn cyclists of the presence of the barricade; to delineate the position and extent of the barricade; and to guide cyclists safely around it.
“Having regard to the circumstances, particularly the position and location of the barricade, the features of the barricade set-up … the obvious purpose and intended use of the public footpath by pedestrians and cyclists, that the barricade was to remain unattended overnight, and the applicable standards, guidelines and internal policies of the BCC relevant to traffic control, risk assessment and management… in my view, that is a risk of which the BCC knew, or ought reasonably to have known.
“The risk of such harm to a person in the position of Mr Dennison was reasonably foreseeable and not insignificant.”
Mr Dennison argued that s 36 did not apply to a claim in negligence, and instead that its operation was confined to claims for the tort of breach of statutory duty.
He said the council’s placing of the barricade across the footpath was for maintenance work and the council was not performing any function of a public authority under Section 901 of the Local Government Act 1993 (Qld) (LGA), and so the provision did not apply.
He said if the provision did apply, then the council was not absolved of liability “because its actions were so unreasonable that no public authority having the function in question could properly consider such acts or omissions to be a reasonable exercise of that function”.
BCC argued that s 36 of the CLA applied and operated to provide a qualified exemption to liability in a case such as this.
It said by placing the barricade across the footpath the council was clearly performing a function of a public authority under s 901 of the LGA. It said liability was precluded unless its actions or omissions fell within the ambit of s 36(2), which it said effectively introduced a test of Wednesbury unreasonableness.
It said the test was not met here because it could “not possibly be said in the circumstances that its acts or omissions were so unreasonable that no public authority having the functions in question could properly consider what it did or did not do to be a reasonable exercise of that function”.
Justice Crowley said the evidence showed BCC failed to comply with standards, guidelines and policies in several respects, but he was not satisfied that the way BCC exercised its functions was so unreasonable that the test in s 36(2) was satisfied.
“Because of the conclusions I have reached with respect to s 36 of the CLA, it follows that the BCC is not liable,” he said.
“Were it not for the application and operation of s 36 of the CLA, I would otherwise have been satisfied on the balance of probabilities that the BCC owed a duty of care to Mr Dennison; that it breached its duty of care; and that Mr Dennison sustained injury, loss and damage caused by its negligence.
“However, because I have found s 36 of the CLA applies and Mr Dennison has failed to establish the proviso in s 36(2) of the CLA, I conclude that the BCC is not liable for the alleged breach of its duty.”
Read the case here.
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