The Queensland Court of Appeal’s decision in Dennison v Brisbane City Council has confirmed that s 36 of the Civil Liability Act 2003 (Qld) applies to common law negligence claims against public authorities, not just actions for breach of statutory duty. Critically, the decision makes it clear that if a public authority fails to comply with its own internal procedures and, perhaps more importantly, applicable industry standards, it may fall short of the s 36 standard. For insurers, underwriters and practitioners advising public authority clients in Queensland, Dennison is now the leading authority on how the s 36 defence operates.
What led to Queensland’s public authority liability reforms?
In the aftermath of the collapse of HIH Insurance in 2001, Australia was facing a public liability insurance crisis. Insurance premiums had started increasing sharply, which, coupled with increasing claim numbers, was causing hardship across a broad range of sectors, including the local government sector. Many councils, for example, could not pay the increases in insurance premiums or could not get public liability cover for certain events and activities. Councils responded in different ways, including scaling back what they offered, cancelling events, dismantling playgrounds, and becoming preoccupied with warning signs and risk management.
In response, in 2002, Commonwealth, state, and territory governments established a four-member panel, chaired by Justice David Ipp, to perform an independent review of the law of negligence. The panel was given their terms of reference1 setting out the purpose, scope and limits of the inquiry. Relevant to public authorities, the panel was instructed:
Term of Reference
3 In conducting this inquiry, the Panel must:
(a) address the principles applied in negligence to limit the liability of public authorities.
After a period of wide consultation, the panel produced a report (the IPP report) in 2002, making a range of recommendations on duty of care, causation, damages, and professional standards. These recommendations prompted sweeping civil liability reforms across Australia, including the introduction of civil liability legislation in the states and territories. In Queensland, this included the Civil Liability Act 2003 (the CLA).
In relation to breach of duty, the CLA essentially codified the common law principles,2 with additional statutory defences included for public authorities.
Up until recently, the scope of these defences, particularly the s 36 defence, has been contentious. The position has now been clarified by the Queensland Court of Appeal in the recent decision of Dennison v Brisbane City Council.3
What is s 36 of the Civil Liability Act 2003 (Qld)?
Section 36 essentially adopted the ‘Wednesbury unreasonableness’ standard4, a principle derived from English administrative law whereby a court could only interfere with the decision of a local authority if the decision was so unreasonable that no reasonable authority could ever have come to it, and is worded as follows:
36 Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the 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.
(bold emphasis added)
How did Queensland courts interpret s 36 before Dennison?
The leading Queensland authority prior to Dennison was the Supreme Court decision in Hamcor Pty Ltd v State of Queensland,5 which had confined the scope of s 36 to actions for breach of statutory duty. In arriving at that decision, Dalton J took into account the wording of the heading of that section – ‘Proceedings against public or other authorities based on breach of statutory duty’ – and observed that, ‘because s 36 was a provision that “drastically reduces” the rights of persons to a remedy, by significantly lowering the standard of care owed by a public authority, it ought to be strictly construed’.6
The scope of s 36 was later extensively considered by the New South Wales Court of Appeal in Seqwater v Rodriguez,7 which concerned the class action following the devastating 2011 Queensland floods. In that decision, the Court of Appeal concluded that the better view was s 36 should not be read down as applicable only to a proceeding in which the cause of action is a breach of statutory duty.
Dennison v Brisbane City Council
What happened in Dennison v Brisbane City Council?
In the early hours of 18 December 2009 before dawn, Victor George Dennison was riding his bicycle along a concrete footpath beside Zillmere Road, Aspley, when he collided with an orange mesh barricade that had been temporarily erected by Brisbane City Council (the Council). The collision caused injuries so severe that Mr Dennison retained no recollection of the accident.
The previous day, the Council had excavated part of the footpath to perform underground works on a water main. The path was a shared pedestrian and cyclist path. Once the works were complete, the hole was filled and the path was re-concreted. A barricade was erected overnight to allow the concrete to cure. The lighting in the area was poor, and the barricade was an unlit, non-reflective mesh structure supported by uncapped metal poles. There was no indication the barricade was tied to the fence, there were no warning signs, and there was no identification of an alternative route.
How did the trial judge decide?
The matter came before Crowley J in Dennison v Brisbane City Council [2026] QSC 83. His Honour identified three issues arising from s 36 and resolved each against Mr Dennison.
On the first issue, the primary judge held that s 36 applied to the common law negligence claim, preferring the reasoning of the NSW Court of Appeal in Rodriguez over the earlier Supreme Court of Queensland decision in Hamcor.
On the second issue, His Honour found that the erection and maintenance of the barricade was part of the Council’s exercise of its function of controlling roads, including the subject footpath, under s 901 of the Local Government Act 1993 (Qld). The function being performed was accordingly within the operation of s 36.
And on the third issue, His Honour concluded that the Council had not failed to meet the standard prescribed by s 36(2). In doing so, His Honour acknowledged the Council’s failings but was unwilling to characterise the decision-making as so unreasonable that no public authority in the Council’s position could properly have considered it a reasonable exercise of its functions.
Accordingly, notwithstanding that the primary judge found the Council would have been liable in negligence but for s 36 – by failing to adequately light, delineate or warn of the hazard created by the barricade, and that this failure caused the plaintiff’s injuries – the claim failed.
What did the Queensland Court of Appeal decide?
The three main issues on appeal were: (1) whether s 36 was confined to a breach of statutory duty; (2) whether erection of the barricade was an exercise of the council’s function as a public authority; and (3) did the Council meet the low standard prescribed by s 36.
Issue 1: Does s 36 apply to common law negligence claims or only breach of statutory duty claims?
In relation to the first issue, the Court of Appeal affirmed the primary judge’s conclusion that s 36 is not confined to proceedings for breach of statutory duty. Doyle JA, with whom Boddice JA and Cooper J agreed, rejected the approach in Hamcor, citing with approval the reasoning in Rodriguez:8
Whilst the heading forms part of the statute, and can be relied upon in construing the operative provision, the manner in which it was applied is not persuasive. The term ‘duty’ is defined in the Dictionary to the Civil Liability Act to mean a duty of care ‘in tort’, ‘under contract’, or another duty under statute or otherwise that is ‘concurrent with a duty of care in tort or under contract’. The fact that the defined term ‘duty’ is not used in s 36 suggests that the section was not limited to any particular cause of action … s 36(1) makes explicit provision for the application of the section, and does so by reference to ‘function’ rather than the type of duty which is alleged to have been breached.
The better view is that s 36 should not be read down as applicable only to a proceeding in which the cause of action is a breach of statutory duty.
His Honour also drew support from the IPP Report, which contemplated the Wednesbury standard as the applicable standard for negligence claims arising from the performance of a public function, noting ‘there is nothing in the Explanatory Notes to suggest that a choice was made not to adopt that standard at all for negligence claims against public authorities.’9
Issue 2: Was erecting the barricade an exercise of the Council’s statutory function?
Mr Dennison challenged whether the erection and maintenance of the barricade fell within the Council’s statutory function, contending that the Council was engaged in cathodic protection or maintenance rather than road control, and that the barricade was merely incidental to that function. Doyle JA rejected both contentions. The function was correctly identified as controlling roads under s 901 of the Local Government Act. Crucially, the power to undertake that work necessarily carried with it the power, and the responsibility, to make the site secure and safe:
In the present case no-one, without the statutory authority conferred on the Council, could lawfully dig up the path, then reinstate it and barricade its use.10
Accordingly, the erection of the barricade was an exercise of the Council’s statutory function for the purposes of s 36.
Issue 3: Did Brisbane City Council meet the standard under s 36(2)?
Doyle JA observed there had been a number of decisions that had considered this issue and expressly agreed with the approach taken by the NSW Court of Appeal in Curtis v Harden Shire Council11 and Collins v Clarence Valley Council.12
Curtis concerned an accident that was caused by loose gravel on the road surface. It was alleged the Council was negligent in failing to provide adequate signage to indicate that the road had been resurfaced and that motorists should reduce their speed. In that decision, Bathurst CJ (with whom the other judges agreed on this point) stated:13
The Court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power. If the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability. (bold emphasis added)
Basten JA and Beazley P also appeared to place emphasis on the word ‘could’ in the wording of s 43A(3) (the analogue to s 36(2)).
Beazley P also stated:
In my opinion, the statement of Lord Diplock … is consonant with the language of s 43A and appropriately characterises the nature of a special statutory power:
“… in public law ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.” (bold emphasis added)
Collins concerned an injury to a cyclist when the plaintiff’s front wheel of her bicycle became stuck in a gap between the wooden planks of the bridge. McColl JA stated:14
The plaintiff must establish that no authority acting reasonably … could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. That requires demonstrating that no public authority properly considering the issue could place its conduct as within the range of opinions as to what might constitute a reasonable act or reasonable failure to act.
The primary judge did not have the benefit of the decision in Curtis, however he approached the question applying the objective test mandated by Allianz Australia Insurance. Applying that test he concluded the appellant had established the matters s 43A(3) required because “there was no rational reason to confine Mr Bailey’s inspection in February 2008 to the risk posed by motor vehicles” … (emphasis added)
It is unclear whether McColl JA was endorsing the approach of equating irrationality with Wednesbury unreasonableness, however, this had previously been cautioned against by that Court in Allianz.15
After reviewing the applicable external standards and the Council’s policies, manuals and guidelines, Doyle JA observed, ‘[i]t should be immediately appreciated that the setup of the barricade in this case did not satisfy these various standards.’16 While His Honour acknowledged standards often involve matters of judgement that leave open a range of precautions which may properly be considered a reasonable exercise of statutory function or power, he also considered that was not the case here.
In ultimately allowing the appeal, Doyle JA stated:17
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. … 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.
What does Dennison mean for public authority liability claims in Queensland?
The decision in Dennison resolves the conflict between Hamcor and Rodriguez in favour of the broader construction: s 36 of the CLA applies to common law negligence claims, not merely to actions brought for breach of statutory duty.
How the standard in s 36 is applied, however, remains less clear. This is due, in part, to the somewhat circular approach taken by the courts to interpreting that provision (or its analogue).
In the author’s recent article, Council Not Tripped Up by its Own Guidelines’, the author discussed the recent New South Wales Court of Appeal decision in MacLean v Richmond Valley Council18 in which it was held that a breach of a council’s own risk management protocols did not result in an automatic breach of duty. While this was in the context of ordinary principles of negligence, the author sees no reason why it should not also apply to the interpretation of s 36.
In Dennison, the Council similarly failed to comply with its internal standards, which essentially mandated the taking of one or more of the measures Mr Dennison argued ought to have been adopted to address the risk. However, there were substantially more internal standards governing the relevant protocols and, unlike in MacLean, external standards also mandated the taking of precautions. The potential for significant personal injury was also significantly greater.
When considering whether an act or omission is so unreasonable that no public authority could properly consider it to be a reasonable exercise of its functions, the correct approach seems to be more a matter of emphasis, degree and judgement, particularly in relation to the word ‘could’.
The word ‘could’ implies a low standard. However, in deciding whether that standard has been met, it necessarily involves weighing up all of the relevant evidence, including the authority’s internal policies and procedures and any applicable industry and government standards and guidelines, and then asking the question – could the impugned act or omission fall within the range of opinions as to what might constitute a reasonable act or omission?
In wrestling with the abstract nature of the s 36 standard (or its analogue), courts in the past have resorted to concepts of ‘rationality’ and ‘sensibleness’, and while cautioned against by some courts, their use, in the author’s opinion, arguably helps to conceptualise the standard.
If, for example, a claim simply involved a failure to conduct inspections with sufficient regularity or in a particular manner, and there were no industry guidelines as to how those inspections should be carried out, then establishing that the authority has failed to meet the standard in s 36 may be very difficult. The plaintiff would essentially need to establish that no sensible or rational authority exercising the same powers or functions could make the same decision.
As stated in Dennison, the plaintiff has the onus of establishing their claim by the standard imposed by s 36. And while Doyle JA also observed that it is possible for a court to put itself in the position of a 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), if there is a complete absence of industry guidelines or internal policies and procedures, then how does the court decide whether the standard has been met? How does the plaintiff discharge the heavy onus? To use the words of Dalton J in Hamcor, the effect of the section in such circumstances would make it ‘extraordinarily difficult for a plaintiff to prove breach.’
Conversely, if there are industry guidelines that mandate a particular frequency or method of inspections, to say nothing of the authority’s own procedures and standards, and the council failed to comply with those guidelines, establishing a failure to meet the s 36 standard may be much easier to achieve, which was precisely the outcome in Dennison.
For insurers, underwriters, and the practitioners advising them, Dennison provides important clarification on what determines whether the s 36 defence will hold. This involves a thorough review of the authority’s policies and procedures and any relevant industry standards and guidelines, finding out the reasons for the relevant decision/s taken, and then assessing whether or to what extent the decision/s had any justification. If your insured is a public authority facing a liability claim in Queensland, a close review of its internal procedures and compliance with any applicable industry standards, at the time of the relevant incident, is essential to assessing whether the s 36 defence will hold. Partner Milton Latta regularly advises insurers and public authorities on liability claims in Queensland. For further guidance, please contact Milton at [email protected].
1 Terms of Reference: Principles-based Review of the Law of Negligence.
2 Adding the ‘not insignificant’ criterion said to be a slightly higher threshold than foreseeability.
3 [2026] QCA 193.
4 Named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, a decision of the English Court of Appeal, which held that a court may intervene in a public authority’s discretionary decision only if the decision is so unreasonable that no reasonable authority could have made it.
5 [2014] QSC 224, Dalton J.
6 Dennison v Brisbane City Council [2026] QSC 83 at [135] per Crowley J.
7 Seqwater v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162.
8 Seqwater v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162 at [68]-[69].
9 Dennison v Brisbane City Council [2026] QCA 193 at [33].
10 Ibid at [75].
11 (2014) 88 NSWLR 10.
12 (2015) 91 NSWLR 128.
13 Curtis v Harden Shire Council (2014) 88 NSWLR 10.
14 Collins v Clarence Valley Council (2015) 91 NSWLR 128 at [177].
15 Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328 at [88].
16 Dennison v Brisbane City Council [2026] QCA 193 at [102].
17 Ibid at [127].
18 [2026] NSWCA 66.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
FAQs
Find quick answers to common questions about this topic.
Does s 36 of the Civil Liability Act 2003 (Qld) apply to common law negligence claims?
Yes. The Queensland Court of Appeal in Dennison confirmed that s 36 applies to common law negligence claims against public authorities, not just actions for breach of statutory duty. The earlier Queensland Supreme Court decision in Hamcor, which had confined s 36 to statutory duty claims, no longer represents the law in Queensland.
What is the Wednesbury standard and how does it apply under s 36?
It is a principle derived from English administrative law whereby a court could only interfere with the decision of a local authority if the decision was so unreasonable that no reasonable authority could ever have come to it. This wording is broadly the same as in s 36(2) of the CLA, which provides that a public authority’s conduct will only constitute a wrongful exercise of its functions if it was so unreasonable that no public authority having the same functions could properly consider it a reasonable exercise of those functions. It is a deliberately protective standard, and the threshold is high.
What role do a public authority’s internal policies and industry guidelines play in a s 36 claim?
These are significant. Where relevant internal procedures and external industry standards exist, and a public authority fails to comply with these, there is a significant risk a court will find that its conduct falls below the s 36 threshold. Conversely, where no such guidelines exist, it will be significantly harder for a plaintiff to establish a breach.
What should insurers do following Dennison?
Dennison signals that a thorough review of the authority’s internal policies, procedures and any applicable industry guidelines is essential when assessing whether the s 36 defence will hold. Non-compliance with those standards significantly undermines the defence. Insurers and their advisers should examine whether the authority followed its own procedures at the time of the incident, identify the reasons for the decisions made, and assess whether any departures from established standards can be justified.
