A public authority can fail the ordinary negligence test and still fall short of the statutory standard that controls liability. That is not an abstract distinction. In Dennison v Brisbane City Council [2026] QSC 83, Crowley J found that Brisbane City Council owed a cyclist a duty of care, breached it, and caused his injury. His Honour nevertheless entered judgment for the council because of Civil Liability Act 2003 (Qld) s 36.
The facts make the gap between those conclusions unusually stark. Before dawn, a cyclist rode along a footpath where council workers had left an orange mesh barricade around curing concrete. The mesh was supported by uncapped steel stakes and attached to a perimeter fence. The witches hats that had marked its corners were gone, and the council knew such markers were often removed or stolen. There was no light or sign on the barricade, and the nearest streetlight was not operating when the collision occurred. The council had created a danger that Crowley J found was foreseeable, not insignificant and inadequately controlled. Section 36 changed the legal answer.
Section 36 changed the answer
The council admitted that it owed users of the footpath a duty to take reasonable care. Crowley J found the duty required reasonable care to make the barricade visible at night, warn approaching cyclists, delineate its extent and guide cyclists safely around it. On the ordinary breach analysis under Civil Liability Act 2003 (Qld) s 9, the precautions were insufficient.
The findings were specific. The council used mesh and stakes that were neither retroreflective nor fluorescent. It assumed nearby lighting would be adequate without checking. It did not place a retroreflective warning sign on or before the barricade. The council also relied on unsecured cones despite knowing that cones were commonly removed or stolen. Crowley J found that those failures breached the duty and were a necessary condition of the harm: [129], [246] to [247].
That did not establish liability. Section 36(1) applies to a proceeding based on an alleged wrongful exercise of, or failure to exercise, a function of a public or other authority. Under s 36(2), the act or omission is not wrongful unless it was so unreasonable that no authority with the same functions could properly consider it a reasonable exercise. Crowley J held that the council was exercising a function under the local government legislation then in force when its workers reinstated the footpath and protected the curing concrete. The claim therefore had to meet the higher standard. It did not.
The operative words outweighed the heading
The difficult construction point is visible on the face of the provision. The heading to s 36 says it concerns proceedings against authorities based on breach of statutory duty. The operative words do not identify any cause of action. They ask whether the proceeding is based on the allegedly wrongful exercise or non-exercise of a function.
The heading counts. Under Acts Interpretation Act 1954 (Qld) s 14(2), it forms part of the Act. In Hamcor Pty Ltd v Queensland [2014] QSC 224, Dalton J treated the heading, context and effect upon rights as favouring a construction confined to breach of statutory duty. The construction point later reached the Court of Appeal in Hamcor Pty Ltd & Anor v State of Queensland [2015] QCA 183. The Court expressly found it unnecessary to decide because a separate statutory immunity answered the appeal. That was not approval of the construction below.
Crowley J preferred the reasoning quoted from Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd [2021] NSWCA 206. The defined term “duty” does not appear in s 36, while “function” is not confined to a duty. Section 34 also says that function includes power. On that reading, the heading is an imperfect paraphrase, not a limit on the express application provision.
It is worth pausing on that last point, because both sides of the argument noticed the same feature of the text and drew opposite conclusions from it. Section 36 does not use the word “duty”, which the Act defines to cover duties of care in tort. The New South Wales Court of Appeal read that silence as showing the section was never tied to a particular cause of action. Dalton J had read it the other way at [195]: s 36 is the only one of the three operative sections that speaks of breach of statutory duty, and after using that phrase in the heading it avoids the defined words altogether, which she thought a deliberate choice not to reach tortious duties. The disagreement is a real one between two available readings, not an oversight by either judge.
His Honour was careful about precedent. The Queensland and New South Wales statutes are not uniform, and Crowley J said he was not bound to follow the New South Wales decision. He followed it because he agreed with it. The extrinsic materials reinforced the conclusion: ss 35 and 36 were enacted together to restrict public authority liability in civil claims. Crowley J described “statutory duty” in the heading as inapt and ambiguous in this setting: [152] to [155].
I think the textual choice is persuasive. A heading is part of the statute, but it cannot do all the work when the subsection itself states when the section applies and does so without reference to the cause of action. That conclusion should still be stated modestly. It is a first instance answer to a question on which the Queensland Court of Appeal has deliberately expressed no view.
Unreasonable was not unreasonable enough
Crowley J’s nine-point framework at [235] shows what changes once s 36 is engaged. The section supplies the breach standard. The plaintiff bears the onus. The court applies the statutory words without substituting a paraphrase, views the conduct through the eyes of a responsible authority with the relevant expertise and functions, and recognises a range of properly available choices. Only conduct outside that range satisfies the proviso.
The distinction is not between reasonable and unreasonable conduct in the ordinary sense. A court may conclude that a reasonable person would have taken a precaution and still be unable to conclude that no comparable authority could properly regard the omission as reasonable. This decision is an unusually clear demonstration. The same omissions that amounted to breach under s 9 did not cross the s 36 threshold.
Crowley J accepted that the council had failed to conduct a proper risk assessment, delineate an alternative path, provide warning signs and use retroreflective devices. Yet the standards, guidelines and internal policies did not prescribe one mandatory response for every set of circumstances. Whether to install the suggested warning sign remained a matter of judgment. The failures to check lighting, add illumination or improve delineation were likewise matters on which an authority could properly choose among a range of options: [222] to [243].
Evidence must address the statutory question
The most useful paragraph for practitioners is [237]. The plaintiff led expert evidence about the council’s departure from standards, guidelines and internal policies, but no evidence about what a reasonable council would have done or could properly have considered in the circumstances. That gap tracked the statutory question exactly.
Proof that a manual required or recommended a precaution remains relevant. It may establish ordinary breach and inform the s 36 assessment. It is not, by itself, proof that no authority with like functions could properly consider the omitted precaution unnecessary. The expert task must therefore be framed comparatively. Identify the relevant function and expertise, the range of responses open to a comparable authority, and why the impugned act or omission falls outside that range. Evidence that merely identifies better practice answers the wrong question.
That lesson matters in public liability work well beyond barricades. The distinction should be addressed in pleadings, expert instructions and cross-examination from the start. Fraser Lawyers’ pages on personal injury law and public liability claims provide related background. The current Queensland legislation contains the operative provisions.
The broader reading remains open to challenge
The broader construction has a consequence worth confronting. The policy materials discussed by Crowley J were concerned with protecting public choices shaped by financial, economic, political or social considerations. The conduct under examination was an operational choice about an unattended worksite. The reasons apply s 36 according to its broad text without requiring proof that the particular choice rested on a policy consideration.
That is both the strength and the vulnerability of the reasoning. The operative language contains no policy-decision qualification, so reading one in would be difficult. But the result gives a public authority the heightened standard for routine operational negligence whenever the impugned conduct is the exercise of a statutory function. Dalton J’s narrower construction resists that reach, and she was alert to the stakes: at [196] she described s 36 as drastically reducing the rights of persons to a remedy by very significantly lowering the standard of care owed by public authorities, which was why she thought it should be read jealously. The conflict now matters in a very practical way, and it remains unresolved by a Queensland appellate court.
A related boundary is also unsettled. In White v Brisbane City Council [2025] QSC 318, Treston J recorded that no Queensland decision had determined whether s 36 applies to nuisance and allowed that cause of action to be added by amendment. Her Honour did not decide the statutory question or the nuisance claim. If the negligence construction is followed, the treatment of nuisance will become harder to avoid. I would not assume either that a different label escapes s 36 or that its broad reference to a “proceeding” necessarily captures every cause of action.
Published 6 August 2026.
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