The Reasonable Public Authority: Expanding the Reach of s 36 of the Civil Liability Act

The decision of Dennison, handed down on 29 September 2026, provides guidance to plaintiff and defendant lawyers alike as to the threshold for what constitutes unreasonable conduct by a public authority under s 36 of the Civil Liability Act 2003 (Qld) (‘CLA’).

Facts

At 4AM on 18 December 2009, Mr Victor Dennison (the appellant) was riding his bike along a concrete footpath in Aspley when he collided with a temporary orange mesh barricade erected by the Brisbane City Council (‘the Council’). Mr Dennison lost his eye and suffered a traumatic brain injury in the incident.

The Council is a public authority. It had carried out underground works the previous day and re-concreted the footpath. A barricade was erected to allow the concrete to cure overnight. Mr Dennison sued the Council for personal injuries he claimed were caused by the Council’s negligence.

Primary trial findings

The critical issue to be determined in the primary trial was whether s 36 of the CLA applied and if so, whether Mr Dennison had proved the Council’s conduct was so unreasonable that it satisfied a higher threshold for liability as prescribed by s 36(2). If not, the matter would be determined according to the usual standard of negligence per s 9 of the CLA.

Section 36(2) of the CLA provides an act or omission of a public authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable no authority could properly consider it a reasonable exercise of its functions. The standards by which the actions of the public authority are to be considered is that of a reasonable public authority. The plaintiff bears the onus of establishing the actions were unreasonable under s 36(2).

Ultimately, the trial judge was not satisfied the way the Council exercised its functions were so unreasonable that the test in s 36(2) was satisfied. Based on this finding, the Council was found not liable.

Appeal findings

The issues raised on appeal included:

(a) The primary judge concluded s 36 did apply, and in reaching this finding favoured the reasoning in a NSW Court of Appeal decision (Queensland Bulk Water Supply Authority v Rodriguez) over the reasoning of the Queensland Supreme Court in Hamcor v State of Queensland (‘Hamcor’);

(b) The function performed by the Council as identified by the trial judge was the function of controlling roads (including the subject footpath) under s 901 of the Local Government Act (‘LGA’);

Issue 1: Is s 36 limited to statutory duties?

The Court of Appeal rejected the approach taken in Hamcor and found section 36 is not limited in its operations to proceedings based on a breach of a statutory duty and therefore applied to the current proceedings. The ground of appeal was not made out.

Issue 2: Is the installation of the barricade the performance of a function of the Council?

The primary judge found the installation and maintenance of the barricade was part of the Council’s performance of its functions, pursuant to s 901 of the LGA and the standard of care to be applied applicable was provided for in s 36(2) of the CLA.

The Court of Appeal found the Council was performing one of its functions when undertaking maintenance work. Further, Council’s access to the pathway, and the works performed on it were within the power conferred by s 901 of the LGA. The Court found the allegations were correctly characterised as alleged wrongful performance of a Council function. The ground of appeal was not made out.

Issue 3: Did the Council meet the threshold of s 36(2)?

The primary judge found the risk of cyclists colliding with the barricade was plainly foreseeable and the potential for significant personal injury was also reasonably foreseeable. There was no evidence steps were taken by the Council to better alert cyclists of the barricade, or the steps were not taken due to issues of cost, ability or inconvenience. While the primary judge found the Council negligent, his Honour was not satisfied Mr Dennison had established a failing of the kind required by s 36(2) of the CLA.

The Court of Appeal found, placing itself in the position of a notional public authority, that it was difficult to accept that failing to provide reflective signs, failing to give advance warning of a barricade and failing to divert the public to another safely identified passage was a proper exercise of its functions. Further, the Court of Appeal found the risk of harm to cyclists was of the catastrophic kind suffered in this case.

Ultimately, the Court of Appeal found it could not accept a local authority could consider itself acting in the reasonable discharge of its powers by failing to protect against the above risks with at least the use of reflective signs. The ground of appeal was accepted.

Key Takeaways

Dennison establishes the breadth and scope of the application of s 36 of the CLA. The practical effect of this decision is s 36 is not a blanket immunity provision, and the actions of a public authority can meet the threshold of s 36(2) where operational failures (such as a failure to provide reflective signage and a safe alternate route as applicable here) are sufficiently serious. The decision highlighted the need for both plaintiff and defendant lawyers to carefully examine internal policies and give consideration to industry standards in determining potential liability under s 36(2) of the CLA.

For Queensland government departments and agencies, the decision highlights the importance of contemporaneously documenting both the reasons for operational decisions and the measures taken to identify, assess and manage foreseeable risks. To defend claims involving the exercise of public functions, authorities will likely need evidence demonstrating:

the nature and extent of risk assessments undertaken before the relevant activity or decision;
compliance with applicable legislation, policies, procedures, manuals, codes and recognised industry standards;
the hazards identified, the control measures considered and implemented, and the reasons particular precautions were adopted or rejected;
inspections, audits, maintenance records, incident reports, hazard reports and other records relevant to the risk in question;
the practical constraints affecting the authority's response, including funding, resources, competing priorities, operational feasibility and broader public interest considerations;
the decision-making process undertaken by responsible officers, including records demonstrating the matters considered and the balancing of competing considerations;
expert or technical evidence supporting the reasonableness of the authority's approach; and
evidence of the practices adopted by comparable public authorities undertaking the same or similar functions, including other Queensland agencies, local governments, interstate authorities and, where relevant, Commonwealth agencies.

In particular, comparative evidence may be highly relevant to whether the impugned conduct fell within the range of reasonable responses available to a public authority. Departments and agencies should consider obtaining and preserving evidence of sector-wide practices, including operational policies, guidelines, standards, procedures and risk management approaches used by comparable authorities. Such evidence may assist in demonstrating the authority's conduct was consistent with accepted governmental practice and contemporary risk management expectations. Conversely, if other authorities routinely implemented readily available precautions that were not considered or adopted, that evidence may be relied upon by a claimant to argue the authority's conduct was not a reasonable exercise of its functions.

This decision demonstrates, where there is little or no evidence explaining why obvious precautions were not implemented, a public authority may struggle to establish its conduct was a reasonable exercise of its functions. Departments and agencies should therefore ensure not only that appropriate risk management measures are in place, but also the factual, technical and policy considerations underpinning operational decisions are contemporaneously recorded and established through documentary, witness and expert evidence. Evidence the authority's approach was consistent with comparable public authorities may be a particularly important consideration in establishing whether the conduct fell within the spectrum of a reasonable governmental response in the circumstances.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}

^{Author: Katrina Mawer}