A senior cyclist who was injured when he crashed into a mesh barricade on a footpath has won an appeal against Brisbane City Council (BCC), which has been ordered to pay him $675k in compensation.
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.
Last week, the Court of Appeal overturned a May decision in the Brisbane Supreme Court by Justice Lincoln Crowley, who concluded that but for the operation of Section 36 of the Civil Liability Act 2003 (Qld) – regarding proceedings against public or other authorities based on breach of statutory duty – BCC could have been liable in negligence and owe in $675,926.77 in damages to the cyclist.
The appellant had submitted three grounds of appeal: that s 36 was limited to statutory duties, that the installation of the barricade was not the performance of a function of the council, and that the council did not satisfy the “no reasonable authority” standard prescribed by s 36(2).
In their 28-page decision, Appeal Justices David Boddice and Shane Doyle, and Justice Sean Cooper, ruled that the first two grounds had not been made out, but that BCC had failed to meet the standard prescribed by s 36(2).
“(There) is no evidence that any local authority with the functions of the council could have considered the provision of the barricade as it was with the combination of having no advance or other reflective warning signs, no direction to an alternative path and no local lighting provided, as a proper exercise of the function,” Justice Doyle said.
He said BCC had not taken safety measures listed in various manuals, standards and guidelines to protect public safety.
“None of these documents permits the primary consideration to be protection of concrete as it cures rather than an assessment of, and steps taken to ameliorate, risk to pedestrians and cyclists,” he said.
He said the BCC team leader for the works had accepted that he was “required at that site to have signs delineating a safe passage around the works during the nighttime”.
“It is possible for a court to put itself in the position of the notional public authority informed by such evidence as the parties adduce and decide if the steps taken in the case before the court fall below the standard set by s 36(2),” he said.
“In my view it is difficult to accept that a public authority could reasonably consider that it was a proper exercise of its functions or powers here (if it was not providing hazard lighting or other precaution) not to provide at least reflective signs providing advance warning of the barricade and the need to divert to another safely identified passage.
“The risk of harm to cyclists of the catastrophic kind suffered in this case, while described by the primary judge as moderate, was nonetheless not remote.
“Accordingly, I do not accept that a local authority could consider itself acting in the reasonable discharge of its powers not to protect against those risks by the provision of reflective signs at least.”
BCC was also ordered to pay the cyclist’s court costs for both proceedings.
Read the decision here.
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