Dennison v Brisbane City Council [2026] QSC 83

SUPREME COURT OF QUEENSLAND CITATION: Dennison v Brisbane City Council [2026] QSC 83 PARTIES: VICTOR GEORGE DENNISON (plaintiff) v BRISBANE CITY COUNCIL (defendant) FILE NO: 1809 of 2022 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 1 May 2026 DELIVERED AT: Brisbane HEARING DATE: 14 October 2025; 15 October 2025; 16 October 2025; 17 October 2025 JUDGE: Crowley J ORDER: Judgment for the defendant. CATCHWORDS: TORT – NEGLIGENCE – DUTY OF CARE: EXISTENCE – GENERALLY AT COMMON LAW – where the defendant is a public authority – where the defendant conducted water infrastructure maintenance works – where as part of the works the defendant’s workers re-established a footpath and erected a barricade to protect curing concrete overnight – where the plaintiff collided with the barricade while riding a bicycle – whether the barricade was a hazard – whether the barricade posed a risk of harm – where the defendant submits it owed a duty to the plaintiff but not to the extent of the plaintiff’s claim – where the plaintiff submits the defendant failed to properly warn of the risk – where the defendant submits that the plaintiff failed to exercise reasonable care – whether the defendant breached its duty of care TORT – NEGLIGENCE – DUTY OF CARE EXISTENCE – APPROACHES IN DETERMINING EXISTENCE OF DUTY – GENERALLY – whether in the circumstance there was a risk of harm occurring– whether the defendant ought to have foreseen the risk – where the risk of harm to the plaintiff was not insignificant – whether the defendant took reasonable precautions to prevent the harm to the plaintiff TORT – NEGLIGENCE – DUTY OF CARE EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – -- 1 of 97 -- 2 REASONABLE FORESEEABILITY – whether it was reasonable to foresee that the plaintiff would collide with the barricade resulting in the harm suffered – whether the barricade was an obvious risk – whether the lighting was sufficient in the circumstance that the barricade would be obvious during nighttime – whether the defendant ought to have contemplated if the barricade would or would not be visible in reduced lighting conditions TORT – NEGLIGENCE – DUTY OF CARE – FACTORS DETERMINING EXISTENCE OF DUTY – OTHER FACTORS – DEGREE AND NATURE OF CONTROL EXERCISABLE TO AVOID HARM – whether a reasonable person would have taken precautions to ensure the barricade was visible at night – whether the defendant in the circumstances exercised sufficient safeguards to avoid the harm suffered by the plaintiff TORT – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – UNDER CIVIL LIABILITY LEGISLATION – whether the plaintiff would have collided with the barricade and suffered the injury but for the manner in which the defendant erected the barricade – whether the defendant would have collided with the barricade if it was erected in a manner that made it obvious in the circumstances – whether the defendant caused the injury to the plaintiff – whether the plaintiff failed to exercise reasonable care for his own safety TORT – CIVIL LIABILITY LEGISLATION: MODIFICATIONS TO TORTS AND LAW OF NEGLIGENCE – LIABILITY OF PUBLIC AND OTHER AUTHORITIES – where the defendant is a public authority and the defendant was exercising a statutory function – where the plaintiff claims to have suffered an injury as a result of the defendant’s exercise of the function – where as a result of exercising the function the plaintiff suffered an injury – whether s 36 of the Civil Liability Act 2003 (Qld) applies to a public authority only in a proceeding based on breach of statutory duty or breach of duty generally – whether the manner in which the defendant exercised the function was so unreasonable that no other public or other authority could properly consider exercising the function in that manner STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – whether the proper construction of s 36 of the Civil Liability Act 2003 (Qld) is that it applies not only to proceedings based on breach of statutory duty – whether parliament intended for s 36 to give public authorities a policy defence – where consultation of extrinsic material gives context to the purposive intention of the instrument -- 2 of 97 -- 3 DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – DAMAGES FOR NON- ECONOMIC LOSS – GENERALLY – where the plaintiff sustained multiple personal injuries – where quantum for general damages and damages for past gratuitous care services are each disputed – assessment of the appropriate injury scale value to determine general damages – whether it is appropriate to award damages for past gratuitous services – where the defendant submits damages for past gratuitous services should be reduced to reflect tasks undertaken for joint benefit of the plaintiff and his wife Acts Interpretation Act 1954 (Qld) ss 14, 14A, 14B Civil Liability Act 2003 (Qld) ss 8, 9, 10, 12, 35, 36, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 Civil Liability Regulations 2003 (Qld) ss 5, 7, 8 Sch 3, 4, 5, 6, 7 Civil Liability Act 2002 (NSW) ss 43, 43A Evidence Act 1977 (Qld) ss 92, 101 Local Government Act 1993 (Qld) s 901 Allianz Australia Insurance Limited v Roads and Traffic Authority (2010) 57 MVR 80, cited Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 22, considered Collins v Clarence Valley Council (2015) 91 NSWLR 128, cited Curtis v Harden Shire Council (2014) 88 NSWLR 10, cited Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, cited Hamcor Pty Ltd v Queensland [2014] QSC 224, not followed Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53, cited Jones v Dunkel (1959) 101 CLR 298, applied Moule v Cambooya Shire Council [2004] QSC 50, cited Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2025] QCA 207, cited Roads and Maritime Services v Grant (2015) 70 MVR 520, cited -- 3 of 97 -- 4 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, applied Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162, followed Spencer v Maryborough City Council [2002] QCA 250, cited Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182, applied Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, cited The Queen v A2 (2019) 269 CLR 507, applied Weber v Greater Hume Shire Council (2019) 100 NSWLR 1, applied Wyong Shire Council v Shirt (1980) 146 CLR 40, cited COUNSEL: C Heyworth-Smith KC, with D Cormack, for the plaintiff D Schneidewin, with K Grimshaw, for the defendant SOLICITORS: Hall Payne Lawyers for the plaintiff Barry Nilsson Lawyers for the defendant [1] At about 4.00am on 18 December 2009, the plaintiff, Victor Dennison, left his home to go out for one of his regular morning bike rides. Mr Dennison liked to go out early in the summertime, before it got hot, and the roads became busy. The sun was not yet up but dawn was not far off. [2] It is not known precisely when, but sometime between about 4.10am and 4.20am, Mr Dennison suffered a horrific accident. While riding his bike in a westerly direction along a section of the concrete footpath that runs beside Zillmere Road at Aspley, Mr Dennison collided with an orange mesh barricade that had been temporarily erected by the defendant, the Brisbane City Council (BCC). [3] The BCC is a public authority. It has control of all roads, including footpaths, within its local government area, which includes Aspley. The day before the incident, one of its work crews had dug up part of the footpath to carry out some underground works on the water main. The work crew later filled in the hole and re-concreted the footpath. Workers erected the orange mesh barricade to protect the newly laid concrete as it was left to cure overnight. -- 4 of 97 -- 5 [4] As a result of the collision, Mr Dennison fell from his bicycle and impaled his left eye on a metal stake that was holding up one corner of the mesh barricade. The top of the stake speared through his eye, penetrated his eye socket and entered his cranial cavity. His eye was obliterated, his eye socket was fractured, and he sustained traumatic injury to his brain. [5] Miraculously, Mr Dennison remained conscious for a time. He somehow managed to pick up his bicycle and park it a bit further along the footpath. He then walked back towards the barricade and picked up the stake, before collapsing to the ground. He was found a short time later, lying face down across the footpath. [6] Mr Dennison sues the BCC for damages for personal injuries he claims were caused by BCC’s negligence. [7] Unsurprisingly, given the nature and extent of his injuries, Mr Dennison has no recollection of the incident. Furthermore, he is now 80 years of age and has frontal lobe dementia. He did not give evidence or otherwise directly participate in the trial. Because of his condition and the declining state of his health, Mr Dennison is a person under a legal incapacity. His wife and litigation guardian, Juthika Dennison, maintains the action against the BCC on his behalf. [8] Liability is contested. The BCC admits that it owed a duty to take reasonable care for the safety of persons using the footpath. However, it says the nature and scope of the duty it owed was not as extensive as Mr Dennison claims. Regardless, it contends that it did not breach its duty of care, as 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. 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. [9] A crucial issue to be determined is whether s 36 of the Civil Liability Act 2003 (Qld) (CLA) applies and, if so, whether Mr Dennison has proved that the BCC’s conduct was so unreasonable that it satisfies the higher threshold for liability prescribed by s -- 5 of 97 -- 6 36(2). If not, the matter is to be determined according to the usual standard of negligence contemplated by s 9 of the CLA. [10] Even if liable, the BCC contends that Mr Dennison failed to take reasonable care for his own safety and that any award of damages should be reduced for his contributory negligence. [11] As to quantum, the extent of Mr Dennison’s claims for general damages and damages for past gratuitous care services rendered are each disputed. All other heads of damages are agreed. LIABILITY The incident [12] No-one witnessed the collision. It is necessary that I make findings as to what occurred according to my assessment of the evidence. In doing so, I may draw reasonable inferences from facts I find established by the evidence. [13] In Jones v Dunkel,1 Dixon CJ described the proper approach to a circumstantial case in a civil action such as this: “In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951) which is referred to in Holloway v. McFeeters (1956) 94 CLR 470, by Williams, Webb and Taylor JJ. The passage continues: “All that is necessary is that according to the course of common experience 1 (1959) 101 CLR 298, 304-305. See also Luxton v Vines (1952) 85 CLR 352, 358. -- 6 of 97 -- 7 the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.” (1956) 94 CLR, at pp 480, 481. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.” [14] Mrs Dennison gave evidence that in December 2009 she and her husband were living at Alexander Street, Zillmere. Mr Dennison was 64 years old at the time. He had worked for many years as an industrial chemist before retiring in 2008. He was very fit and active and enjoyed swimming and cycling. He bought two bikes when he retired, so he and his wife could go riding together. Mrs Dennison had observed her husband riding in the past. She would sometimes ride with him, mostly on the weekends. She considered him to be a very responsible cyclist and someone who always followed rules, as that was his character. She said he got a light for his bike and always wore a helmet. [15] Mrs Dennison recalled that on the morning of 18 December 2009, Mr Dennison left home for his early morning ride sometime between about 4:00 to 4:10 am. When asked how far it was from their home to the accident site, Mrs Dennison said, “Not very far…it wouldn’t have taken him 10 minutes from the time he left our compound to the spot.” The time of the incident can therefore be estimated to have occurred between about 4:10 am and 4:20 am. [16] Aside from this evidence and the medical evidence, the bulk of the evidence from which the circumstances of the incident may be established comes from the investigation undertaken by Workplace Health and Safety Queensland (WHSQ) and various photographs that were taken at the scene on 18 December 2009. -- 7 of 97 -- 8 [17] WHSQ investigators, Ms Kim Tollenaere and Mr John Carmosino, attended the scene that day. They took photographs, spoke to various witnesses and later interviewed a number of people. I note that in the case of several such witnesses, documents containing their accounts of their involvement in the matter were tendered as exhibits, pursuant to s 92 of the Evidence Act 1977 (Qld). Although there was no objection to the evidence being received in this way, I bear in mind that s 101 of the Evidence Act provides that in estimating the weight to be attached to statements contained in such documents, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement. In instances where the person making the relevant statement did not actually witness something, or where they simply expressed their opinion as to what they believed happened or would have happened, I consider such statements, even if admissible, to be of little or no weight. The discovery of Mr Dennison [18] Mr Carmosino spoke to Mr Grant Booth at the scene and made some brief handwritten notes of the information he provided. Mr Booth subsequently signed those notes, acknowledging that he agreed with what had been recorded. Later that day, he provided a handwritten witness statement. [19] Mr Booth’s witness statement provided the following relevant evidence. He is a baker and pastry cook. He and his wife ran a bakery and takeaway business from 605 Zillmere Road, Aspley. He was last at work on 17 December 2009 from 11.00 pm until about 1.00 am the following morning. He did not notice anyone on the footpath outside when he left. To the best of his knowledge, all the bunting around the area of the incident was in place on the footpath. He was not sure where the witches hats were. The work along the footpath had been going on up and down the area for the past two weeks. He had earlier been at work on the previous day and had left at 4.05 pm to go to the doctor. At that time, he was “pretty sure” that the bunting and witches hats were up. [20] He returned to his shop at about 4.25 am on 18 December. As he pulled his car into the driveway, he noticed a red flash off to his right-hand side, up on the footpath near the bunting area. He then saw a pushbike. He did a U-turn and shone his lights onto the footpath. He then saw a person (Mr Dennison) lying on the ground beside the -- 8 of 97 -- 9 bunting, with his head towards the gutter facing in a south-westerly direction. He stopped his car on the road about two metres away from the man, with the car facing towards him. He put his hazard lights on, hopped out of the car, went to the man and squatted down beside him. He noticed the area beside the man was wet and muddy and the man’s head was in the mud. He felt for a pulse on the man’s neck and dialled 000. He confirmed the time of the call as 4:28 am. The ambulance arrived within approximately seven minutes. [21] Consistent with Mr Booth’s account, a copy of the Queensland Ambulance Service (QAS) electronic report for this matter records that the initial 000 call was received at 4:25 am and that the ambulance was on scene at 4:33 am. [22] While Mr Booth was waiting for the ambulance, one of his customers pulled up beside him in his car and put his hazard lights on. He stood and waited with Mr Booth. Mr Booth noticed the man on the ground was wearing a cycling helmet. He was in and out of consciousness. Mr Booth asked the man if he could hear him, and the man lifted his head slightly. He noticed a big pool of blood on the ground and the man put his head back down again. [23] The QAS, the police and the fire brigade arrived. At that time, Mr Booth stepped back from the scene and noticed the bunting on the left-hand side, looking eastward, was detached from the nearby fence and one of the yellow steel stakes was missing. He then noticed the yellow stake was lying across the top of the man’s body. The stake was covered in blood. He saw the bunting was still up on the roadside of the footpath and the three other stakes were still in place, but the bunting was no longer attached to the fence at the front or rear. He did not see any tyre marks visible in the mud. When the paramedics rolled the man over, he saw his left eye was damaged. It looked like he had a hole where his left eye had been. He also noticed the man’s bike was on its stand, upright, and a blood trail led from it to where the man had collapsed on the footpath, approximately six metres away. He recalled asking the man, “How did you do this buddy?” and that the man said, “I got my foot stuck”. [24] Mr Carmosino’s handwritten notes also record the following important additional details. Mr Booth left his shop between 12:00 am and 1:00 am on 18 December. When he returned and drove into the driveway, at approximately 4:25 am, he noticed a “red flash in dark on RH side”. He then turned his car around and “put high beam on and -- 9 of 97 -- 10 noticed body on footpath”. He drove his car beside him on the road with the headlights facing him and his hazard lights on. [25] The notes also contain a hand drawn diagram, signed by Mr Booth. It shows the incident location and scene as described by Mr Booth in his statement. In particular, it shows the position of the missing stake and the position of Mr Dennison on the ground. It also shows the position of a nearby streetlight, accompanied by the notation, “Did not appear working”. The footpath works and barricade set-up Evidence [26] In December 2009, the BCC was performing cathodic protection works along Zillmere Road. The works required a construction crew to access the underground water main pipes to carry out an electrolysis procedure which would stop the pipes from corroding. Workers had been there performing similar works for several weeks before 17 December. On that day, a construction crew, headed by Team Leader Mr Michael Rodgers, was carrying out work in the vicinity of 605 Zillmere Road. To reach the pipes, the crew had to excavate an area of ground, including the footpath. According to the evidence of Mr Rodgers, when performing this kind of work the crew would dig up the earth to access the pipe and after it was complete, they would backfill the trench and then carry out compaction and “reinstatement”. The reinstatement process included replacing the grass and all the existing features that were previously there at the site. [27] When giving evidence at the trial, Mr Rodgers said he had no independent recollection of the specific work that was done at the incident site. Nevertheless, he agreed that his crew had erected the barricade that was shown in various photographs taken on 18 December. Those photographs show the state of the barricade, post- collision. There were no photographs taken of the barricade on 17 December. [28] For clarity, I will call the eastern end of the barricade the “front end” and the western end the “rear end”. The front end is the end that Mr Dennison collided with. I will refer to the sides of the barricade as the “roadside” and the “inner side”, being those closest to and furthest from the road respectively. -- 10 of 97 -- 11 [29] Mr Rodgers provided a written statement to WHSQ investigators on 9 June 2010, in which he stated that on the afternoon of the day before the incident he and other workers from the construction crew had been performing repairs to the relevant section of the footpath and had installed a new section of concrete. They then constructed a temporary barrier around the newly laid section and left the concrete to cure. The barrier was comprised of orange mesh held up by a series of yellow metal stakes known as “road dogs”. The inner front and rear ends of the barricade, being those furthest from the road, were connected by cable ties to an adjacent black metal perimeter fence. This appeared to have been done to provide greater rigidity and support for the barricade. The barricade was about one metre high. It was fully supported and not sagging or lying on the ground in any way when Mr Rodgers left the site on the afternoon of 17 December. [30] Mr Rodgers stated that the barrier did not block the entire footpath, rather it only extended from the roadside edge of the concrete path back to the perimeter fence. The other side, from the roadside edge of the footpath to the concrete kerb and channel of the road was still open and was a relatively flat area that could be used by people walking or riding a bike. [31] Mr Rodgers further stated that the orange barrier mesh of the barricade and the supporting bright yellow road dogs were highly visible. He recalled that the presence of the barricade was highlighted through the use of four brand new orange witches hats which had been placed at each corner of the barrier; but that when he returned on 18 December there were only two witches hats remaining; and that he was unsure who had removed the other witches hats. He was told by another council worker already on site that there had been no witches hats present when he had arrived; and that he had placed the two witches hats there that morning, as there were none around the area where the accident had occurred. I infer from other documents in evidence that the other council worker was Mr Greg Coomb, who was the first BCC officer to attend the site in response to the incident, at 5:45 am,. [32] In his oral evidence, Mr Rodgers was unable to say what time the work crew left the location on 17 December. He said they would ordinarily depart around 3.30 pm or 4.00 pm in the afternoon and would normally start at about 6.30 am or 6.00 am in the morning. He thought he had probably returned to the worksite the next morning to -- 11 of 97 -- 12 finish what they had been doing the previous day. Aside from the obvious defects created by the collision, Mr Rodgers confirmed in his statement that the worksite had not been modified, altered or repaired by the time he arrived. [33] In his evidence, Mr Booth noted that the fire brigade had removed a stake and moved some of the bunting from the roadside to the fence side so they could work on the man on the ground. He stated that he later replaced the bunting and the stake, to approximate the positions where they had originally been when he arrived. [34] WHSQ investigators also interviewed Mr Rodgers on 24 December 2009. During that interview, Mr Rodgers explained the cathodic protection and re-concreting works that had been done at the site on 17 December. He said they had “meshed it off” that afternoon and had “put all the witches hats and that around it, both sides…that was the extent of the whole job”. He confirmed that the purpose of the mesh was to keep people off the concrete. He said there were obviously “a few things in there; so possible trip hazards and that sort of thing”. He agreed that he was the person who made the decisions as to what safety controls were implemented around the site. He said that during the day there were warning signs in relation to the pedestrian access to the area and traffic control was used to divert pedestrians; but that at the end of the day they packed up all the signage and “just made it safe” with the barrier mesh, “careful caps” and witches hats. He said reflective witches hats supplied by the BCC were placed outside the barricade. He agreed there was a pile of turf outside the barricade and said it was still there because it was part of the “reinstatement” to complete the job on the following morning. He said he had conducted the risk assessment for the site, including completing the relevant section of the BCC “Construction Safety for Large Size Projects” document, and there had been a safety induction. When asked if it was possible to put caps on the road dogs, he said they did not actually make a cap for road dogs. [35] When cross-examined, Mr Rodgers said he was not aware and could not remember whether any signs had been put up on the mesh barrier; that he “would not have a clue” and could not remember whether any advance warning signs were put up; and that he could not recall whether the traffic controllers had put up any retroreflective signs. When asked about the witches hats, he said that they would have problems with witches hats getting stolen from worksites, but that was predominantly when they -- 12 of 97 -- 13 were on the road. He said, “vehicles would hit them, or kids would run along and grab them and muck around with them”, and that they “would have problems with hats getting stolen all over the place.” He said they would use witches hats for any kind of hazard, “if it was in someone’s usual path of travel”, not just on the road. [36] Mr Rodgers agreed that the reason why the work crew had put mesh around the footpath on this occasion was to protect the concrete because they wanted it to cure overnight. He was not able to say when the concrete had been poured, other than it would have been sometime during the day on 17 December. He said it would have taken overnight for it to cure to the point where pedestrians were able to travel upon the footpath again. He further agreed that the orange mesh was not retroreflective and that the yellow road dogs were neither retroreflective nor fluorescent. [37] The photographs of the incident site that I found to be of greatest assistance in understanding the set-up were those taken by Mr Ian Ellis, a safety officer with the BCC who attended the scene later on the morning of 18 December (Exhibit 8). [38] Photograph 3 within Exhibit 8 shows the concrete footpath is straight and long and at the incident location it runs parallel to the black perimeter fence. The footpath slopes slightly downward from east to west. There is grass on either side, however, at the incident location on the roadside there are sections of grass that have been damaged or removed, so that some areas of the ground are exposed dirt and mud. On the inner side, immediately before the front inner road dog, there are at least four large square sections of turf stacked on the grass. Near the same location there is a concrete slag heap, just inside the barricade but on the grass. Further back, next to the perimeter fence, there is an oval shaped, flat concrete communication pit cover in the ground. Next to that is what was described as a “testing post”. The post is about one metre high and made of metal. Mr Rodgers explained that it was used by his team to test the underground pipes at that location. [39] Photographs 3 and 4 show the orange mesh barricade supported by three yellow road dogs, two at the front and one at the rear. The inner rear road dog has been removed and is lying flat on the grass on the roadside, towards the middle of the barricade. The barricade is deformed and shows the signs of impact. The remaining three road dogs are leaning inward, and the orange mesh is sagging and appears disrupted and irregular. -- 13 of 97 -- 14 [40] Photograph 3 further shows that about 10 metres or so past the rear end of the barricade there is an orange witches hat standing on the footpath. Photograph 4 shows what I assume to be the same witches hat, lying on its side on the grass closest to the road. Photographs 5 and 6 are taken from the front inner side and front roadside respectively. They show the concrete slag heap, which appears to be greater than 50 centimetres in diameter and approximately 20 centimetres in height. It appears to be excess or left-over cement from the previous day’s works that had formed into a hardened lump. [41] Photographs 1 and 2 show another barricade set-up around a different BCC work site located a few hundred metres further west along the same footpath. The set-up there was similarly comprised of orange mesh, supported by yellow road dogs. The inner ends of the mesh were also affixed to the perimeter fence. Four witches hats are present at that site, two at the front and two at the rear. [42] Mr Ellis gave evidence that he attended the site on 18 December to assess the situation as the BCC safety officer. He said he was unable to do so because the site had been knocked over. Mr Rodgers, the Team Leader, told him it had all been fenced off “properly”. By reference to his Exhibit 8 photographs, Mr Ellis explained that it was his understanding that the orange mesh webbing was apparently attached to the black perimeter fence to torsion it out. He said that was obviously because of the communication pit and the testing post that were in the location, as well as the turf sections that had been left there. He said that from his perspective as the operational safety officer, “by average”, in 2009 a set up like that shown in the photographs was acceptable. He thought that if the site had originally been erected as it appeared to have been then it would have been in a safe condition. [43] Mr Ellis also identified a further bundle of photographs that he took on 23 May 2015, in approximately the same location (Exhibit 9). He said that he was passing by on that day and saw Optus was working there so he took some photographs of their work site. He said the work site was not the same, but that there were similarities between the safety fencing used on that occasion and that erected by the BCC employees on 17 December 2009. He considered that the Optus barricade did not appear to be as safe as the BCC barricade. He pointed out that star pickets were used to support the -- 14 of 97 -- 15 mesh in the Optus barricade and some “onion bag” webbing was used by Optus, which was not used by the BCC. [44] I did not find the photographs and evidence given by Mr Ellis on this point to be of much assistance at all. Whatever Mr Ellis saw and took photographs of, involved some other authority, performing some other function involving a barricade present during the daytime on some other day, well after the incident. I do not consider it provides any real basis to compare the acts or omissions of the BCC on this occasion. [45] Mr Ellis said the set up shown in photograph 1 of Exhibit 8 appeared similar to the set up that the BCC had always used, with the safety mesh around the work area held up with road dogs around the worksite. He thought the set-up and materials used were “almost standard”. He noted that witches hats had been placed there. When asked if there was any usual procedure used by the BCC for placement of the witches hats, Mr Ellis said there was not any specific procedure or exact way of doing things. He said it appeared the team placed the witches hats there to make sure they had it barricaded off and for visibility for pedestrians. [46] When cross-examined, Mr Ellis agreed that he had not seen the accident site the day before; that Greg Coomb had been there earlier and taken photographs; that the worksite was dishevelled, and he could not say how it was before; and that he could not comment on whether or not it had been made safe other than from what he had been told by the Team Leader. [47] Mr Ellis agreed he saw there were two witches hats present, which were those shown in the photographs he had taken, but accepted they were not in the exact or correct spots they should have been in. He was unable to say whether they had been put there the day before when the workmen left the site and said he could only go by what the Team Leader had specified. [48] The photographs taken by Greg Coomb were tendered as part of Exhibit 3 (item no. 109). It is not known exactly when those photographs were taken, but it was sometime earlier on 18 December. Amongst other things, Mr Coomb’s photographs show the location of a large advertising sign for the “Sunshine Business Park”, which appears to be the whole commercial block bounded by the perimeter fence. The sign is suspended several metres in the air, atop a large pole inside the perimeter fence. The -- 15 of 97 -- 16 pole is about 10 metres or so before, and east of, the incident location. The photographs show two lights at the top of the pole, positioned underneath the advertising sign and facing upwards. [49] Photographs of the incident location were also taken by the Queensland Police Service (QPS) when they attended the scene on 18 December (Exhibit 3, item 107). Although there was no direct evidence about when the photographs were taken, it is clear they were taken early in the morning, not long after sunrise, and before Mr Coomb arrived. Several photographs in that bundle show Mr Dennison’s bike, upright with its kickstand down, positioned on the footpath, about five metres or so from the rear of the barricade and facing west along Zillmere Rd. There are fresh blood droplets and a blood trail on the footpath near the bike extending back to near the rear of the barricade on the inner side grass section and footpath. There are no witches hats present at the time. [50] When the WHSQ investigators later arrived at the scene, they took further photographs of the site of the incident and the surrounds (Exhibit 3, item no. 78) and conducted inquiries. Ms Tolleneare took notes at the scene. She confirmed in her evidence that her recollection of the incident was refreshed from reading her notes. [51] According to her notes, Ms Tollenaere arrived at the scene at 9:00am. She took the following relevant site measurements which she recorded in her notebook: the distance from the perimeter fence to the front inner road dog stake was 1310 mm; the length of the turf squares on the grass between the footpath and the fence was 1430mm; the width of the turf squares was 430mm; the distance from the edge of the path to the turf squares was 440mm; the distance from the other side of the turf squares to the perimeter fence was 590 mm; the distance from the roadside curb to the front outer (roadside) road dog stake was 2240 mm; the distance between the outer and inner front pickets was 1320 mm; the distance between the front and rear road dog stakes was 2750 mm; and the height of the road dog stakes was 1100 mm. [52] During her evidence, Mr Tolleneare identified the photographs taken by her colleague, Mr Carmosino. Some of the photographs show dried blood trails, stains and spots on the grass and the concrete footpath. Ms Tollenaere confirmed that she was unable to recall how the witches hat shown lying on its side in the Exhibit 8 photographs came to be at that location. -- 16 of 97 -- 17 [53] Whilst at the scene, Ms Tollenaere interviewed Mr Mark Thompson, the BCC foreman for the work crew that had done the work at the site the previous day. During that interview, Mr Thompson confirmed he was employed as an acting senior works foreman for Brisbane City Works, a business unit of the BCC. He said the work along the Zillmere Rd area had been going on for probably two weeks. His role was to check on how things were going and to help organise resources. He had been on site several times but was not present when the bunting went up. He was trusting the Team Leader’s (Michael Rodgers) “work ethic and work procedures” in erecting the barricade. He thought it had been put up the previous afternoon. He said it was normal practice to put bunting up around a work site of this kind, explaining, “…that’s our standard procedure…put a couple of road dogs around it, it’s a minor…it was only protecting the…the wet footpath…” He said he would probably have encased the left- over concrete within the bunting, but said, “…but…you wouldn’t think anybody’d trip over it…this is right next to the bunting; so it was on the safety side. So it’s not the walking side…” He explained that during the day there was a traffic controller on site but that, “…overnight, we generally have a rule – don’t leave the signs up, ‘cause they always get…knocked off, or they do become a hazard for people.” He said that the use of reflective witches hats was also standard procedure. He confirmed that the decision as to what safety precautions were to be put in place around the bunting was probably made by the Team Leader onsite. He said that a risk assessment would be done on every job and “imagined” that one would have been done for this job. [54] On 23 2009, Ms Tolleneare interviewed and took a statement from Mr Malcolm Burgin, the BCC Safety Manager. She also obtained several BCC work policy and procedure documents from him that were applicable to the work that had been done at the incident site. During the interview, Mr Burgin confirmed his role with the BCC at the time of the incident was as the Acting Workplace Health and Safety Manager for Brisbane City Works; that works had been done onsite for about three weeks; that the work site had been managed by the Team Leader, Michael Rodgers; that the work involved digging down to the water main to earth the infrastructure; that the Team Leader would make the decision as to the controls to be put in place and the barricading of the works; that the Team Leader had previously had some problems with signage being stolen from a job around the corner; because the concrete at the site had only been laid, and had not set properly, the barricade was put up to allow it -- 17 of 97 -- 18 to set overnight; that road dogs are usually used for a setup of this kind; that the BCC had previously identified the potential for someone to be impaled on a star picket and that was why they used road dogs, as they would collapse if someone ran into them; that the BCC had spoken to manufacturers about supplying caps for the road dogs and had designed their own cap but there was no product currently available on the open market; that a working group involving the Team Leader and Senior Safety Advisors had completed a “Construction Safety Plan” work method statement for the job; that ordinarily excess concrete left over at a job would be poured within the barriers of the job site, so that it may set and be taken away the next day, and that any turf outside the job site should be fenced in; and that advance warning signs would be put up where the whole footpath was closed, but here it was not as it was deemed there would be sufficient room for people to go around the barrier on the left-hand side (roadside). Consideration and conclusions [55] I accept the evidence of Mr Rodgers with respect to the manner and purpose of the erection of the orange mesh barricade on 17 December. His evidence is supported by the photographs that were taken the following day. I am satisfied, and find as a fact, that the state of the set-up immediately before the incident occurred was as follows. The barricade formed a rectangle shape, running from east to west around the section of the footpath that had been re-concreted, with dimensions that were a little wider than the footpath at each end and a few metres long on each side. Four road dogs were used to support the barricade, however, at each end the orange mesh further extended across the entirety of the inner grass strip between the inner side of the footpath to the perimeter fence where it was attached to the bars of the black perimeter fence by cable ties. The size of the set-up was as measured by Ms Tollenaere. Whilst it was bright orange in colour, the mesh used for the barricade was not reflective or fluorescent. The yellow road dogs were also not reflective or fluorescent. The top of each stake was U-shaped and uncapped. There were no lights or signs placed on or around the barricade as a warning or as a control measure to direct pedestrians away from the area that was cordoned off. [56] I accept Mr Rodgers’ evidence that when the barricade was first put up the work crew placed four orange-coloured witches hats, with white reflective centre bands, on the footpath around the barricade, two at the front and two at the rear. In that respect, I am satisfied that the work crew did what they would ordinarily do and what Mr -- 18 of 97 -- 19 Rodgers’ recalled they had done when he was interviewed by WHSQ investigators on 24 December 2009. His recollection in that respect is also supported by the photographs in Exhibit 8 showing the set-up at the other work site location further along the footpath, which I am satisfied was another BCC work site for the same work project. His evidence is also supported to an extent by Mr Booth’s recollection of seeing the bunting and witches hats in place at or about the time that the work crew would likely have finished work for the day. Mr Thompson also confirmed the use of reflective witches hats was standard procedure for the BCC. [57] However, I am not satisfied that any of the witches hats were in place at the work site at the time, or immediately before, the incident occurred. There were only two witches hats there when Mr Rodgers’ returned the following morning. He did not give any reliable evidence identifying those witches hats as the ones his crew had placed there the previous day. Indeed, he said he was informed by Mr Coomb that he had placed them there, as there were none present when he had arrived. The photographs from 18 December show only two witches hats and they were not positioned in the way Mr Rodgers had described. I am satisfied those witches hats were simply placed there by Mr Coomb as part of the BCC’s post-incident site management that morning. [58] There is a strong likelihood that the witches hats that had been previously placed there by the work crew had been stolen or removed overnight by passers-by. Each of Mr Rodgers, Mr Ellis and Mr Burgin confirmed that people stealing witches hats or signs was a common problem they had previously encountered. Regardless, I find that they were not there when Mr Dennison approached the barricade. Light levels and visibility at the time of the collision Evidence [59] There is no direct evidence of the light sources and lighting levels or visibility at the time of the collision. Nevertheless, several witnesses gave evidence concerning these issues and various relevant exhibits were tendered. [60] I have already noted Mrs Dennison’s evidence that her husband was a very responsible cyclist who followed the rules. She identified a photograph (Exhibit 5) of a basic K-Mart bike light as the type of light he had on his bike. -- 19 of 97 -- 20 [61] Other potential sources of artificial light close to the incident location were the nearby streetlight (pole number 620157) or the lights attached to the Sunshine Business Park advertising sign. There is no direct evidence about whether either was operational or functioning at the time of the incident. There was no reliable evidence about how they worked. Various witnesses speculated that the streetlights in the area might be automated or activated by a sensor. [62] When interviewed by WHSQ investigators, Mr Rodgers said he had assessed the lighting around the site as part of his daily risk assessment, noting the streetlights and the advertising sign lights. He did not investigate whether any of the lighting was operational at the time. When asked in cross-examination whether he had considered floodlighting the area, he said that he had considered there was a large advertising sign next to the area as well as a streetlight nearby. He assumed the advertising sign lights would be lit overnight. [63] Similarly, Mr Burgin told WHSQ investigators that the Team Leader apparently made the decision not to put any advance warning signs up because he deemed the lighting was sufficient for someone to see the barricade from some distance. [64] A copy of the QPS Traffic Crash Report for the incident records the atmospheric conditions at the time were “clear” and describes the lighting conditions as “dusk/dawn”. Under a heading, “Crash Details”, the report further notes the lighting conditions as “sunlight glare (dawn/dusk/reflection)” [65] The diagram drawn by Mr Carmosino in his notebook, which Mr Booth endorsed as accurate, indicates the position of the streetlight with pole number 620157, further west along Zillmere Road past the incident location. As previously observed, the notation underneath the diagram reads, “Did not appear working”. [66] In the notes she made when she attended the site on 18 December, Ms Tollenaere recorded that the streetlight with pole number 620157 was about 10 metres past the incident location. She also identified another streetlight approximately 30 metres to the east before the incident location. The streetlight at pole number 620157 is shown in various photographs, including those taken by Mr Ellis and by Mr Carmosino. [67] Ms Tollenaere gave further evidence that on 24 December 2009 she returned to the incident scene at 3:30 am to check the lighting. Between 3:50 am and 4:25 am she -- 20 of 97 -- 21 took a series of photographs on what she described as an “old school camera”. The copies of those photographs in evidence (Exhibit 3, item 78) are not of the best quality but they show the general lighting conditions at that time. One photograph, which Ms Tollenaere identified as having been taken at 4:25 am at the end of the series, shows the area is just becoming light. The sky is dark blue. Streetlights along Zillmere Rd, including at pole number 620157, are on, and lights within nearby premises are on. A utility vehicle (which I assume to be Ms Tollenare’s car) is parked on the roadside next to the incident location and has its headlights on. The light-coloured footpath can be made out relatively clearly. The grassed areas either side of the footpath can also be seen, albeit it is hard to see much detail in the section closest to the perimeter fence, other than the protruding testing post positioned near the fence just past the incident location. I cannot make out the communication pit next to the testing post. The photograph appears to have been taken about 15 to 20 metres before the site of the accident, looking west. [68] I bear in mind that these photographs, as is the case with all the photographs in evidence in this matter, have their limitations. All the photographs are copies of original images. The images captured may not faithfully depict the actual lighting levels and conditions. The colours, shapes, brightness, and resolution are only representative of reality at best. The image quality is variable and is obviously a product of the quality and type of camera used. Further, the images may distort or exaggerate perception due to their quality, the conditions under which they were taken, their two-dimensional nature and the distances and angles at which they were taken. I also bear in mind that the photographs are a static image, whereas in reality Mr Dennison was moving towards the barricade immediately before the incident occurred. [69] Ms Tollenaere said that although she did not have an independent recollection of the lighting levels as she had observed them to be with her naked eye, she had made notes of her observations at the time in her notebook. Her notes (Exhibit 10) contain the following relevant details: “Observations – 1 street light either side of where mesh barricade was erected. One approx. 10m to the left and the other approx. 30m to the right. Both in good working order. Photographs taken at 3:50 am and -- 21 of 97 -- 22 4:25 am. 4:25 am, clear skies, good vision. At 4:28 am pole number 620157 was not working. All other surrounding street lights working. Pole no. 620157 was working when photographs were taken at 3:50 am. Lights on notice board not on. Very minimal cars on road. 4:35 am further street lights not on, the pole to the left and to the right of pole 620157 not on. Left site 4:50 am.” [70] By reference to her notes, Ms Tollenaere confirmed she had noted that at 4:28 am the streetlight with pole number 620157 was not working but the other surrounding streetlights were working. In cross-examination, Ms Tollenaere confirmed that she did not actually see the light go off at pole number 620157 but had instead noticed it was out when she looked up and saw it was not on at 4:28 am. [71] In an email to Ms Tollenaere sent on 24 December 2009, Mr Burgin, the Brisbane City Works Safety Manager, advised that he had also returned to the scene at 4:30 am on 21 December to view the lighting conditions, and further stated: “All 4 street lights surrounding the area were working and the sun was just starting to break through.” [72] According to a WHSQ Investigation Report for the incident, signed by Ms Tollenaere’s supervisor, Clive Newman, the WHSQ Regional Investigations Manager, incorrectly dated 21 December 2009: “… the workplace area appears to have been adequately identified on the footpath and would have been visible and identifiable to persons using the footpath including the riders of bicycles. It otherwise did not pose a danger to persons using the footpath. … The incident site was about 10 metres from an overhead street light within and at a point between street lights along the footpath line on that side of the road. There were 2 corresponding street lights on the other side of Zillmere Road. There were no (flashing) warning lights marking out the work area on the footpath. The BCC officer stated that these lights had not been used for some years as they were always a target of -- 22 of 97 -- 23 immediate theft. There were no visual warning signs placed East or West of the worksite along the footpath. The inspector’s opinion of the light over this time was that it was such that the area involved was able to be seen from a sufficient distance away such that a person on a bicycle would have been able to stop or otherwise avoid the area.” [73] Marek Doiron, a mechanical engineer with the consultancy firm “Intersafe”, was engaged by Mr Dennison’s lawyers to undertake an inspection of the incident site. He did that on 12 January 2017 and subsequently provided two reports, dated 20 and 22 January 2017 respectively. His reports were supported by series of 95 photographs which were also separately collated to form a timelapse GIF file. He was asked to express his opinion on two main issues, the lighting levels at the time of the incident and the stopping distances for a cyclist confronted by an obstacle such as the barricade. [74] In his first report, Mr Doiron explained there are three different ascending phases of twilight: astronomical twilight, nautical twilight and civil twilight. He set out the following relevant definitions of civil and nautical twilight: Civil twilight Beginning of morning civil twilight Defined as the instant in the morning, when the centre of the Sun is at a depression angle of six degrees (6°) below an ideal horizon. At this time in the absence of moonlight, artificial lighting or adverse atmospheric conditions, the illumination is such that large objects may be seen but no detail is discernible. The brightest stars and planets can be seen and for navigation purposes at sea, the sea horizon is clearly defined. Ending of evening civil twilight Defined as the instant in the evening, when the centre of the Sun is at a depression angle of six degrees (6°) below an ideal horizon. At this time in the absence of moonlight, artificial lighting or adverse atmospheric conditions, the -- 23 of 97 -- 24 illumination is such that large objects may be seen but no detail is discernible. The brightest stars and planets can be seen and for navigation purposes at sea, the sea horizon is clearly defined. Nautical twilight Beginning of morning nautical twilight Is defined as the instant in the morning, when the centre of the Sun is at a depression angle of twelve degrees (12°) below an ideal horizon. At this time in the absence of moonlight, artificial lighting or adverse atmospheric conditions, it is dark for normal practical purposes. For navigation purposes at sea, the sea horizon is not normally visible. Ending of evening nautical twilight Is defined as the instant in the evening, when the centre of the Sun is at a depression angle of twelve degrees (12°) below an ideal horizon. At this time in the absence of moonlight, artificial lighting or adverse atmospheric conditions, it is dark for normal practical purposes. For navigation purposes at sea, the sea horizon is not normally visible. [75] Mr Doiron noted that according to astronomical information obtained from Geoscience Australia for Zillmere on 18 December 2009, astronomical twilight was at 3:16 am; nautical twilight was at 3:50 am; civil twilight was at 4:22 am; and sunrise was at 4:49 am. He further noted that between 4:10 am and 4:20 am that day (i.e. the assumed time of the accident) the moon had not yet set and it was 2 to 12 min before the end of the 32-minute period of nautical twilight. [76] With respect to his inspection of the scene on the morning of 12 January 2017, Mr Dorian noted that the astronomical information obtained from Geoscience Australia recorded that astronomical twilight at Zillmere was at 3:35 am; nautical twilight was at 4:07 am; civil twilight was at 4:39 am; and sunrise was at 5:05 am. He further noted that the period of nautical twilight that day was the same duration as it had been on 18 December 2009. He thus calculated the equivalent relevant period of nautical twilight on the day of inspection, corresponding with the time of accident, as between 4:27 am and 4:37 am. -- 24 of 97 -- 25 [77] Mr Doiron went on to explain that he used orange barrier mesh and star pickets to recreate the barricade set-up at the approximate location of the incident. He then took a series of lighting measurements with a light meter sensor. He took readings every two to three minutes, with and without the shadow of a notepad to block neighbouring streetlight. He used the notepad to approximate the light levels that would be present if the streetlight was not turned on at the time. He collated his results in a table which he produced within his report. He also took photographs with a camera on a tripod every 30 seconds. Between 4:27 am and 4:38 am, he recorded “without shadow” measurements (lux values) of 7.17 to 8.75 and “with shadow” measurements of 1.82 to 3.47. [78] With respect to stopping distances for a cyclist, Mr Doiron noted that a cyclist’s response to any stimulus, including an obstacle, was not instantaneous; that there would be a “perception-identification-judgment-reaction” time delay which would vary in length due to several factors including the strength of the initial stimuli, whether the stimuli were expected/anticipated, the complexity of the decision to be made in how to respond to that situation; and that according to a 1999 American publication titled, “Guide for the development of bicycle facilities”, the assumed reaction time for a cyclist (without age differentiation) was 2.5 seconds. [79] On the assumption that Mr Dennison was travelling at between 15 to 20 kilometres per hour (km/h) at the time of the incident, Mr Doiron calculated he would have covered 4.2 to 5.6 metres per second. Using a reaction time of 2.5 seconds, he further calculated that a rider would travel 10.5 metres when travelling at 15 km/h and 14 metres when traveling at 20 km/h. He noted that the distance required for the bicycle to brake would then be added to give the total distance between the cyclist’s initial perception of an obstacle and the bicycle coming to a stop. He further noted that the braking time and distance for a cyclist would also depend on a number of variables, including the speed of the bicycle, the braking force, tyre specifications and condition, efficiency of brakes and the surface. [80] Mr Doiron’s second report was essentially an amended version of this first, which replicated its content, but omitted annexing a copy of the “Guide for the development of bicycle facilities”. It instead annexed thumbnail copies of the photographs Mr Doiron had taken during his site inspection on 12 January 2017, each accompanied -- 25 of 97 -- 26 by a date and time stamp, enabling identification of the corresponding larger versions of the photographs taken between the period 4:27 am to 4:37 am. [81] The first photograph in that period was taken at 4:27:19 am (photograph 29/95). In it, the sky is dark, and the streetlights are on, including the one at pole number 620157. The light from that streetlight is mainly cast onto the roadway immediately below but it also partially illuminates the grass verge and footpath. The concrete footpath can be clearly seen at the point below and around pole number 620157 and also for some distance before and after the barricade. The lights are on outside and within some of the buildings in the business park. Large objects and shapes are generally discernible but finer details are not clear, particularly in areas which are not illuminated. The orange mesh barricade is visible, more so on the section that spans the concrete footpath, which provides a lighter contrasting background. The extension of the mesh from the inner stakes to the black fence is not as clear but can generally be made out. The testing post inside the barricade can be seen near the fence. The communication pit in the ground cannot be seen. Mr Doiron did not recreate the turf squares or concrete lump for the purposes of his inspection. [82] The last photograph in the relevant period was taken at 4:37:36 am (photograph 50/95). In it, the sky is much lighter, but the incident area is still somewhat dark. Streetlights and the lights from the business park premises are still on. The light at pole number 620157 is still on. The roadway is clearly visible. The concrete footpath and grass verges are also clearly visible. Details are apparent. For example, the words “Café Bakery & Takeaway” can be clearly seen on the side of the business premises (I assume it to be Mr Booth’s bakery) at the entrance to 605 Zillmere Rd, about 30 metres past the rear of the barricade. The presence and lateral extent of the front of the orange mesh barricade, stretching across the footpath to the fence, can be readily made out. The photograph also shows a small light is shining on the footpath, about five metres or so before the barricade. Mr Doiron explained in his evidence that he attempted to replicate the light that would be given off by a small bike light of the kind used by Mr Dennison as he took some of the photographs approaching the front of the barricade. [83] In cross-examination, Mr Doiron agreed that his site inspection was some eight or more years after the incident; that it was done at a different time of year; and that it -- 26 of 97 -- 27 was conducted on the assumption that the incident had occurred between 4:10 am and 4:20 am. He confirmed his opinion, based on his instructions and assumptions, that the incident had occurred during the period of nautical twilight. He agreed that because he had conducted his inspection at a different time of the year it was necessary to make adjustments to the time to replicate an equivalent nautical twilight situation. He agreed that on 18 December 2009 the moon had not set at the time of the incident, whereas it had on the day of his inspection. However, he explained there was no natural light from the moon when he did his inspection, as it was sitting down low in the sky behind buildings. He confirmed that he had taken his light measurements on the footpath about a metre before his mesh barricade set-up. He agreed that he had not expressed any conclusion in his report about the adequacy of the light levels he recorded and said he had not been asked to do so. [84] By reference to the “Guide for the development of bicycle facilities”, Mr Doiron agreed that the stated purpose of having artificial lighting on a bike path was to allow cyclists to see the path direction, the surface conditions and obstacles on the path. He agreed that the guide also provided that, depending on the location, horizontal illumination levels of 5 lux to 22 lux should be considered to achieve those purposes. He further agreed that his own measurements of light levels without shadow, between 4:27 am and 4:38 am, were within the range suggested by the guide. He accepted that his use of a notepad to replicate the absence of streetlight from pole number 612057 was a crude method, but he nevertheless maintained it was indicative of the differences between the presence and the absence of streetlight. He expected his readings would be close to, or possibly higher than, the actual levels if there was no streetlight. [85] As to his observations of the streetlight at pole number 612057, Mr Doiron agreed that it had remained on for the entire period between 4:27 am and 4:38 am, but had turned off by 4:48 am, which he confirmed was within the civil twilight period and nine minutes after the end of nautical twilight. He agreed that it later turned off and generally that would happen by automatic sensor. [86] With respect to the potential visibility of the barricade, Mr Doiron agreed that he had taken his series of photographs using settings that he thought best showed what he could see with his own eyes. He agreed that there was a difference between what -- 27 of 97 -- 28 could be seen with the eyes versus a camera but said he thought the photographs were representative of what he had seen. He agreed it was only an approximation of what a human being can see. [87] With respect to the issue of stopping times, Mr Doiron confirmed he had been asked to assume a speed range of 10 km/h to 15 km/h. He reiterated that the stopping time calculation was the reaction time plus the braking time and said he could only provide a general range and could not give a precise estimation without knowing the precise speed and other variables. However, he added that in his experience an assumed speed of 10 km/h to 15 km/h was fair but would likely be the lower range of speed for a bike on a footpath in this situation. He agreed that Mr Dennison’s bike could well have been travelling much faster. He said whilst the 2.5 second reaction time was used as a guide for cycle facilities installation, it could also be much higher, particularly in a dark environment or in a situation where expectation is much lower. [88] Mr Peter Harris, a traffic and road safety engineer with the consultancy firm “Road Safety Audits”, engaged by Mr Dennison’s lawyers, provided an expert report in respect of this matter, dated 13 July 2022. He was asked to provide his opinion on various matters, including the apparent visibility of the barricade used by the BCC on 18 December 2009. Amongst other things, he inspected the incident site and reconstructed a mock-up barricade for the purpose of carrying out his observations with respect to lighting levels and visibility. [89] Mr Harris confirmed in his report that he attended the site on 15 June 2022, between 5:10 am and 6:45 am. He identified the relevant period of nautical twilight then as between 5:41 am and 5:55 am. He noted that at that time there was virtually no natural light in the westerly direction, but slight light was appearing on the easterly horizon (which he noted was the direction that would have been behind Mr Dennison). He expressed the view that the main light sources present at the time of the incident would have been the streetlights and any on-board bike lights. [90] Mr Harris took photographs of the site. A photograph taken at 5:41 am shows the sky is dark and a relatively full moon is present low in the south-western sky. There is light coming from the streetlights in the area, including the one at pole number 620157. There are no lights illuminated on the advertising sign. The photograph appears to have been taken about 50 metres or so before the mock-up orange mesh -- 28 of 97 -- 29 barricade erected by Mr Harris. The front of the barricade can be seen, stretching across the footpath, but its lateral extents cannot be clearly discerned. It is not apparent that the right-hand side of the barricade is tied to the fence. [91] In a further photograph, taken at 5:57 am, the sky is now lighter, appearing dark blue or purple in colour. The moon is still present, the streetlights are still on and there is no light from the advertising sign. The photograph appears to have been taken on the footpath, about 100 metres before the front of the barricade. The orange mesh can be seen in the distance, but its contours and extents are not clear. [92] I note that Mr Harris took photographs using an iPhone as well as a camera. There is a wide difference in the picture quality produced, with the lighting levels in the camera photographs appearing to be much darker and the details of objects being far less clear. [93] By reference to further photographs, Mr Harris noted that the streetlight at pole number 620157 went out at 6:07 am, when it was 12 minutes past nautical twilight. He observed it was then still very dark from a path user’s perspective and noticeably darker than it had been when the light was on. Again, the camera photograph at that time is much darker than the iPhone photograph. [94] Mr Harris carried out experiments in which he walked and ran towards the mock-up barricade while holding a bike light. He noted that it was unclear what Mr Dennison’s approach speed had been but that he could run at over 15 km/h, which was likely at the lower end of the average rider speed here. [95] Mr Harris expressed the following opinions with respect to visibility of the barricade: “The visibility of the mesh is low until within ~50m, for a person of average vision, cycling ability, with an average light, at night during nautical twilight, in average atmospheric conditions. This is even with a bike light operating. Once within ~40-50m it becomes reasonably clear that there’s something across the path, when viewed with a bike light. Also, properly functioning retro-reflective material should be clearly visible by this stage. -- 29 of 97 -- 30 Within 30m, the mesh fence across the path is quite clear when viewed with a bike light. However, the shape, lateral extents, and make-up are not obvious. It’s probably at this point that an average cyclist will commence their reaction time, and decide how to act.” [96] When cross-examined, Mr Harris agreed that he carried out his site inspection during winter, some twelve and half years after the incident. He agreed that for that reason the lighting levels were not identical to those at the time of the incident, but did not agree that the lighting situation was entirely different. He explained that he had attempted to adjust to account for that difference. He agreed that he had taken photographs on two devices because he realised that they might reveal different representations of the actual light levels. He agreed the photographs could not be considered as anything more than an approximation of what the site actually looked like at the time. He disagreed that his assessment of the adequacy of light levels was entirely subjective, explaining that his assessment was a part of his overall analysis of the appropriateness of the traffic planning and risk assessment process undertaken. [97] Mr Harris said that when creating a mock-up of the barricade he was attempting to recreate the physical set-up of the traffic devices around the incident site and was not attempting to reconstruct how the accident had occurred. He agreed that any opinion he had expressed in his report in that regard could be disregarded. He further agreed that when he observed the streetlight at pole number 620157 go out at 6:07 am, that this was 12 minutes after nautical twilight and therefore, with adjustment, outside the relevant incident time. He agreed that he did not know how the light was controlled, but thought it might be by sensor, as it had gone out before other surrounding lights. [98] Mr Harris agreed that in undertaking his assessment, one of the assumptions he made was that stopping when confronted by an obstacle would be an action of last resort for a cyclist. His assumption was that cyclists “strive for continuity” and do not like to stop, even for an apparent obstacle. He said this was a very well-established consideration within traffic management guidelines. Consideration and conclusions [99] Having regard to the foregoing, I make the following findings of fact, of which I am satisfied on the balance of probabilities: -- 30 of 97 -- 31 (a) The incident occurred between 4:10 am and 4:20 am, during the period of nautical twilight; (b) During that time, the sky was still black. The sun had not yet risen, and the moon had not set. The moon was likely low in the sky and obscured by buildings and did not provide much, if any, additional light; (c) Weather and atmospheric conditions were otherwise dry and clear. Visibility was generally good; (d) Mr Dennison had both his front and rear bike lights on at the time of the incident. I draw that inference from Mrs Dennison’s evidence about Mr Dennison’s riding habits, the light he had fitted to his bike, and the time of day she recalled he left home; the timing of the incident; the QPS photographs which show front and rear bike lights attached to Mr Dennison’s bicycle; and Mr Booth’s account that he saw the (rear) flashing red light on Mr Dennison’s bicycle. However, I note that there is no evidence about the strength of Mr Dennison’s front bike light; (e) The streetlight at pole number 620157 was not on when Mr Dennison collided with the barricade. Whilst the preponderance of the evidence satisfies me that the other streetlights were working and operational at the time of the incident, Mr Booth’s evidence was that it was dark at the time and the streetlight closest to the accident site (pole number 620157) was not working. I accept his evidence. I reject the BCC’s suggestion that Mr Booth’s endorsed notation of “Did not appear working” on the hand drawn diagram in the notes of Mr Carmosino is of no assistance because it does not identify at what time that apparent observation was made. It is plain in my view from the detail in the diagram and the accompanying notes that the diagram and notation were intended to indicate the state of affairs at the time Mr Booth first discovered Mr Dennison. That conclusion is supported by the fact that Mr Booth turned his car head lights onto high beam at that time because, I infer, he was not able to see any detail at the accident scene as it was so dark. He estimated that he arrived at the scene about 4:25 am. That was about 5 to 15 minutes after Mr Dennison collided with the barricade. Whilst there is no evidence that -- 31 of 97 -- 32 would enable me to conclude why, or exactly when, the streetlight turned off, Mrs Dennison’s evidence about her husband’s cautious and careful nature and riding habits, Mr Booth’s evidence about the lighting at the scene, and the very occurrence of the accident itself, satisfies me that the light was not on at the time of the collision. Conditions would obviously have been even darker at that time; (f) The other streetlights around did not directly shine onto the area of the barricade, and at best only provided slight indirect illumination of it and the surrounding area; (g) There was no light from the advertising sign. In that respect, the preponderance of the evidence satisfies me that the lights attached to the advertising sign were either not working or were not on at the time of the incident; (h) There may have been lights on at nearby business premises, however they would not have illuminated the area of the barricade; (i) The lighting levels at the location of the barricade were generally poor. It was still night-time and dark. Amongst other things in that regard, I accept the evidence of Mr Doiron and Mr Harris concerning their observations of lighting levels during the relevant period of nautical twilight, albeit noting that their photographs taken at the equivalent incident time were taken with the streetlight at pole number 621057 on. I have also considered the evidence and photographs of Ms Tollenaere when she returned to the scene on 24 December 2009. In my view, her evidence and photographs are of little weight. In that respect, I note that unlike the evidence of Mr Doiron and Mr Harris, there is no evidence that the photographs she took at 4:25 am were within the relevant or comparable period of nautical twilight. I also again note the evidence of Mr Booth, which I accept and place significant weight upon as he was the only witness able to give evidence about conditions close to the time of the collision. I also make clear that I accept Mr Doiron’s evidence of the approximate likely range of “with shadow” light-levels that would have been present at the time. I am satisfied that his observations, experiments -- 32 of 97 -- 33 and measurements in that regard are accurate and reliable. Although he attended at the scene many years later and at a different time of year, I accept that his adjusted time frame properly accounts for those differences and that his observations and recordings were made at a comparable time within the relevant period of nautical twilight according to the astronomical data. There is no basis to suggest that his evidence is unreliable or not equivalent simply because he attended the scene at a later occasion. I also accept the validity of his notebook light blocking method to approximate lighting levels without the presence of light from the streetlight at pole number 620157. On the basis of his evidence and measurements I conclude that the lighting levels were not adequate for a cyclist to properly see the path direction, surface conditions and obstacles on the footpath at the site of the barricade; (j) I accept Mr Harris’ opinion that the presence of the orange mesh barricade was possibly visible from a distance of at least 50 metres, although I again note that Mr Harris’ observations and experiments were conducted with light coming from the streetlight at pole number 620157. At that distance, a cyclist approaching from the east and looking west along the footpath may have been able to see that there was an obstacle of some kind ahead, extending across the footpath. However, it would be unlikely that they could see and appreciate the full dimensions and finer details of the barricade. Furthermore, it is most unlikely that a cyclist would have been able to see and appreciate that the front of the barricade was affixed to the fence and that pedestrian access on that side was completely blocked off. The ability of a cyclist to see and appreciate the extent of the barricade would have been further reduced without the light from the streetlight at pole number 620157; (k) I further accept Mr Harris’ opinion that at a distance of about 30 metres from the front of the barricade, a cyclist facing the barricade would have had greater visibility of its size and shape, but still would not have been able to clearly see that the right-hand side of the barricade was connected to the fence, thus barring passage on that side. I reiterate my observations -- 33 of 97 -- 34 about the differences in visibility that would have been experienced due to the absence of light from streetlight at pole number 620157. Conclusions as to the mechanism of the collision and circumstances of the incident [100] BCC’s case is that because the incident was not witnessed, and Mr Dennison has no recollection of what actually occurred, it is not possible to make any specific findings about the mechanism of the collision. I disagree. The evidence I have already summarised provides an ample basis upon which I may make factual findings and draw further reasonable inferences as to how the incident occurred. [101] I note that the evidence adduced at trial contained the opinions of various persons who drew conclusions about the mechanism of the collision. I bear in mind that such conclusions were expressed by the makers of these statements as part of their own investigative or review processes and were not adduced as some kind of admissible expert opinion evidence. I have made my own assessment of the primary evidence to arrive at my own conclusions and factual findings. [102] As to the particular mechanism of the collision and circumstances of the incident, I am further satisfied on the balance of probabilities that: (a) Mr Dennison was travelling at a speed of at least approximately 15 km/h as he approached the barricade. Whilst there is no direct evidence of Mr Dennison’s actual speed, I accept the evidence of each of Mr Doiron and Mr Harris about average cyclist speeds. Their evidence in that respect was based on their experience and not simply assumed facts. In my opinion, that Mr Dennison was travelling at such a speed is a conservative and common-sense estimate. It is not a very fast speed for a cyclist on a bicycle of the kind ridden by Mr Dennison in the prevailing conditions. I note that Mr Dennison was riding down the gradient, on a relatively new and well-maintained commuter-style bike that was in good working condition, that the footpath leading up to the barricade was well paved and flat and that weather conditions were good. I also note the nature and extent of the damage to the barricade, which in my view well supports the fact that Mr Dennison’s bike was travelling at a speed of at least 15 km/h; -- 34 of 97 -- 35 (b) I am satisfied that the low level of light and prevailing conditions of reduced visibility were major contributing factors that led to Mr Dennison colliding with the barricade. (c) Because of the poor lighting levels, reduced visibility and the lack of other delineation or signage, Mr Dennison did not see and appreciate the full nature and extent of the barricade until he was almost upon it, and he was unable to avoid a collision. Aside from anything else, I accept the argument put on behalf of Mr Dennison that by far the more probable explanation for the occurrence of the accident is that Mr Dennison simply did not see the barricade. In my view, this is an irresistible inference. Had he actually been able to see it and appreciate the full extent of its dimensions in time to go around it, then there is no doubt in my mind that he would have done so. It is nonsensical to suggest that the barricade would have been clearly visible to him from some distance, yet he rode straight into it. The counter argument for the BCC, that Mr Dennison ran into the barricade because he was not looking and failed to exercise reasonable care for his own safety is implausible and uncompelling in my view. The footpath along that section of before the barricade was long and straight. If, as the BCC argues, a cyclist would have been able to see the barricade clearly from some distance on approach, then Mr Dennison would had to have had his eyes closed, or to have been looking elsewhere, or have been otherwise distracted, for a sustained period before he ran into it. That seems highly improbable given the cautious and responsible rider that he was; (d) Mr Dennison veered to the right of the footpath onto the grass strip between the footpath and the fence. At this time Mr Dennison most likely did not see or appreciate that the barricade was attached to the perimeter fence, completely cutting off any passage down that side. I reject any suggestion that Mr Dennison failed to see and properly negotiate the barricade because he failed to exercise reasonable care and keep a proper lookout. The more obvious and likely conclusions, of which I am comfortably satisfied, are that he saw the hazard late and, because it was still dark and there were no witches hats or other markers in place -- 35 of 97 -- 36 sufficiently identifying its dimensions, he did not appreciate its extent and thought he could go around it to the right. I further note in that respect that whilst the BCC workers considered it was sensible and convenient to attach the barricade to the fence, I consider it to be a measure that would be unlikely to be anticipated and expected by a cyclist riding along the footpath in the dark, even if they saw the barricade obstacle across the footpath ahead of them; (e) By the time Mr Dennison was close enough to see and appreciate the full nature and extent of the barricade ahead of him it was too late for him to take evasive action to avoid a collision; (f) As a result, Mr Dennison collided with the front, right-hand side of the barricade. Although the precise point of impact cannot be determined, I am satisfied that his bicycle hit the right-hand section of the orange bunting mesh that extended from the front inner road dog across the inner grass strip next to the footpath and which attached to the perimeter fence; and (g) Upon impact, Mr Dennison lost control of his bicycle, crashed and fell. As he did so, he was propelled forward by inertia in the direction of travel and impaled himself on the inner right hand-side road dog at the rear of the barricade. [103] In my view, the above findings and conclusions are amply proven by the evidence. In addition to the evidence of Mr Doiron and Mr Harris about lighting conditions and cycling speed and reaction times, which I accept, I note the evidence of Mr Rodgers about the position and set-up of the barricade; the photographs of the incident site taken on 18 December, showing the state of the damaged barricade and cable ties still attached to the fence, Mr Dennison’s bicycle, the dislodged inner rear road dog with blood on it, the various blood trails from the bicycle on the inner side of the footpath and grassed area leading back to the barricade; the injuries Mr Dennison sustained, particularly to his left eye, cranial cavity and left frontal lobe; the evidence of Mr Booth as to conditions at the time and where he located Mr Dennison; the absence of brake marks before the barricade or tyre tracks in the mud on the left-hand side of the -- 36 of 97 -- 37 barricade; and the absence of damage to Mr Dennison’s bicycle. On my assessment, all of that evidence strongly supports the above findings. An “obvious risk”? [104] It is convenient to deal with this aspect of the BCC’s case at this point. The BCC relies on s 15(1) of the CLA, which provides: “15 No proactive duty to warn of obvious risk (1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff. … [105] The relevant meaning of an “obvious risk” is provided by s 13 of the CLA: “13 Meaning of obvious risk (1) For this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. Examples for subsection (5)— 1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious. 2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.” -- 37 of 97 -- 38 [106] The BCC contends that if I were to find that the lighting levels were sufficient for the barricade to be seen by a cyclist or pedestrian, then it would have been an obvious risk of harm. Accordingly, the BCC submits, s 15 of the CLA would apply, such that the BCC was not required to do anything to forewarn a user of the footpath, such as Mr Dennison, of the presence of the barricade, by way of signage or otherwise. [107] In response, Mr Dennison says that it is necessary to closely consider the risk that materialised to cause his injuries. He says the evidence establishes that the barricade would not have been visible until it was too late for a cyclist to react; and therefore, the risk that materialised was that there was no alternative route to navigate the barricade. Consequently, he argues, it was not an obvious risk. Alternatively, he says that the risk that materialised to cause his injuries was the uncapped road dogs used by the BCC. He argues that they too were not visible and were not an obvious risk. [108] The BCC bears the onus of proving that the barricade was an “obvious risk”. Given the findings I have made as set out above, it has failed to discharge that onus. In any event, the issue of obvious risk in this case is not as simple as the BCC would have it. It is not just a question of whether the barricade was visible. [109] Whether a risk is obvious is to be determined objectively, having regard to the particular circumstances in which the plaintiff was in. That is, the particular circumstances in which the risk materialised and the harm was suffered. That requires consideration of whether the defendant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the plaintiff.2 [110] I have already set out my findings with respect to the mechanism of the collision and the circumstances of the incident and have concluded that the low level of 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. 2 Section 15(1) CLA; Council of the City of Greater Taree v Wells [2010] NSWCCA 147, [75]-[76]; State of Queensland v Kelly [2015] 1 Qd R 577, [33]. -- 38 of 97 -- 39 The duty owed by BCC [111] There is no dispute that the BCC was responsible for the maintenance and repair of the footpath next to Zillmere Rd. It admits that the footpath was a “road” as defined under the now repealed Local Government Act 1993 (Qld) (LGA); that pursuant to s 901 of the LGA it had control of roads within its local government area, including the footpath; and that Mr Dennison was at the time of the incident lawfully cycling on the footpath. [112] Section 901 of the LGA relevantly provided: “901 Local governments’ control of roads (1) A local government has control of all roads in its area. (2) Control of roads includes capacity to take all necessary steps for— (a) survey and resurvey of roads; and (b) construction, maintenance and improvement of roads; and (c) regulation of use of roads; and (d) regulation of movement of traffic and parking vehicles on roads. (3) Subsection (2)(d) is subject to the Transport Operations (Road Use Management) Act 1995. …” [113] On the basis of s 901 of the LGA and BCC’s control of Zillmere Rd and the footpath that ran parallel to it, paragraph 3 of Mr Dennison’s Further Amended Statement of Claim (FASOC), filed with leave at the commencement of the trial, identifies the relevant hazard, risk and knowledge on the part of the BCC as follows: “ … (e) at or about 605 Zillmere Road near the corner of Kirby Road and Zillmere Road, the works on the pathway were barricaded by the Defendant by use of orange style bunting mesh, affixed in part to an adjoining fence on the one end and with four steel stakes (“road dogs”) on and around the remaining perimeters (“the barricade”); (f) the barricade was a hazard to bicyclists cycling on the pathway; (g) the barricade was a danger to bicyclists cycling on the pathway; (h) the barricade was a risk to bicyclists cycling on the pathway; -- 39 of 97 -- 40 … (j) the Defendant knew or ought to have known that bicyclists used the pathway for cycling; … (l) the Defendant did not warn of the barricade to users of the pathway; (m) the use of the barricade and its placement on the pathway, by the use of uncapped road dogs without warning and effective illumination of the bunting and barricade, was an act or omission of the Defendant in circumstances which were so unreasonable that no public or other authority would properly consider the act or omission to be a reasonable exercise of its functions.” [114] Particular (m) in paragraph 3 addresses the higher standard of negligence on the part of a public authority that must be established in the event that s 36 of the CLA applies. [115] On the basis of the facts pleaded in paragraph 3, the duty said to have been owed by the BCC to Mr Dennison is particularised in paragraph 4 of the FASOC as follows: “4. The Defendant owed the Plaintiff a duty of care to: (a) take all reasonable care when undertaking the works; (b) take all reasonable care when erecting the barricade; (c) take all reasonable care with the selection of material used to construct the barricade and maintain its perimeter; (d) take all reasonable care not to expose bicyclists to the risk of injury or damage in the course of cycling on the pathway which the Defendant knew or ought to have known; (e) complete repairs and not leave the pathway in a condition which was unsafe for bicyclists cycling on the pathway; (f) warn whether by signposting or otherwise warn of hazards on the pathway; (g) warn whether by signposting or otherwise of dangers on the pathway; (h) warn whether by signposting or otherwise of risks on the pathway; (i) warn whether by signposting or otherwise of the barricade on the pathway; -- 40 of 97 -- 41 (j) properly assess the risk of the barricade across the pathway when there was insufficient light to illuminate it; (k) close the pathway prior to the barricade when there was insufficient light to illuminate it; (l) provide alternative access for bicyclists around the barricade; (m) warn whether by signposting or otherwise of the barricade on the pathway; (n) warn whether by signposting or otherwise for bicyclists to dismount from the bicycle prior to the barricade; (o) warn whether by signposting or otherwise to caution or temper the speed of bicyclists cycling in the vicinity of the barricade which crossed the pathway; (p) light or otherwise illuminate the barricade on the pathway when there was insufficient light to illuminate it; (q) cap the road dogs; …” [116] As is evident from the pleading, paragraphs 4(a)-(e) assert the general nature of the duty said to be owed to Mr Dennison; while paragraphs 4(f)-(q) assert the particular content of the duty or the measures that Mr Dennison says the BCC was required to implement in order to discharge the asserted duty. [117] Paragraph 7 of the FASOC alleges that Mr Dennison’s collision with the barricade was solely caused by the BCC’s negligence. Amongst other things, Mr Dennison alleges that the BCC exposed him to a risk of injury that it knew, or ought to have known, existed on the relevant section of the footpath where the barricade had been erected. [118] The BCC denies it was negligent as alleged. It accepts that it owed a duty of care for the safety of persons using the footpath, including Mr Dennison, but denies the nature and extent of its duty was as asserted by Mr Dennison and denies that it breached its duty. By its Third Further Amended Defence (3FAD), also filed with leave at the commencement of the trial, the BCC relevantly contends, at paragraph 6(c): “(c) [The Defendant] Says -- 41 of 97 -- 42 (i) The duty owed by the Defendant to persons using the footpath was a duty to take precautions that a reasonable person in the position of the Defendant would take against a risk of harm to persons using the footpath that was foreseeable in accordance with the general principles provided in s 9 of the CLA and/or as attenuated by the operation of ss 35 and 36 of the CLA; (ii) The Defendant was entitled to assume persons using the footpath would take reasonable care for their own safety; (iii) By reason of s 15 of the CLA, the Defendant did not have a duty to warn persons using the footpath of the obvious risk associated with a barricade in plain sight; (iv) Its workers barricaded part of the footpath in accordance with the Defendant’s general procedures and in accordance with the exercise of its function pursuant s 901 of the LGA as pleaded in subparagraph 3(d) of the Statement of Claim; (v) By reason of s 35(d) of the CLA, the Defendant did not owe any further duty to persons using the footpath; … (viii) There was alternative access for bicyclists around the barricade between the barricaded part of the footpath and the kerb (ix) Caps for road dogs did not exist on the market; …” [119] It is uncontroversial that, subject to the application of s 36 of the CLA, the general principles concerning breach of duty within s 9 of the CLA would apply in this case. While that provision deals with breach of duty rather than the existence of a duty to take reasonable care, it nevertheless assists with identifying the content of the duty owed by the BCC. [120] Section 9 relevantly provides: “9 General principles (1) A person does not breach a duty to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and -- 42 of 97 -- 43 (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)— (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm.” [121] The other principles stated in s 10 of the CLA also apply and are relevant to note here: “10 Other principles In a proceeding relating to liability for breach of duty happening on or after 2 December 2002— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.” [122] As noted, the BCC seeks to rely upon ss 35 and 36 of the CLA. Those provisions state: “35 Principles concerning resources, responsibilities etc. of public or other authorities The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty— (a) the functions required to be exercised by the authority are limited by the financial and other resources that are -- 43 of 97 -- 44 reasonably available to the authority for the purpose of exercising the functions; (b) the general allocation of financial or other resources by the authority is not open to challenge; (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. 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.” [123] The application and effect of s 36 is a contentious issue which I will return to consider shortly. It is first necessary to determine the content of the duty owed by the BCC to Mr Dennison. As a starting point, that requires the correct identification of the particular risk of injury. It is only by doing so that one can assess what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury.3 [124] The risk of harm in this case was created by the erection of the barricade around the worksite and across a footpath which remained otherwise open for use by pedestrians and cyclists at night, while the worksite was unattended. The presence of the barricade changed the condition of the footpath and presented an obstruction that users would 3 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, [59]; Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, [106]. -- 44 of 97 -- 45 need to negotiate. The particular risk of harm to a cyclist was the risk of personal injury resulting from a collision with the barricade, or through a loss of control and subsequent crash of a bicycle when attempting to navigate safely around it, where the presence and extent of the barricade might not be seen or appreciated by a cyclist in conditions of reduced lighting. Having regard to the circumstances, particularly the position and location of the barricade, the features of the barricade set-up, including the use of the uncapped steel road dogs, 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 (which I address further below), 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. [125] 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. Those actions correspond with paragraph 4(f) to (i) and (l) and (p) of the FASOC. I do not consider the use of the uncapped road dogs presented as a separate risk that required the BCC to take additional precautions. In my view, that aspect of the case is subsumed within the content of the duty which I accept was owed by the BCC. Any risk posed by the uncapped road dogs would have been obviated by the BCC taking actions of the kind I have outlined. [126] Putting aside the potential application and operation of s 36 of the CLA for the moment, whether the BCC breached its duty of care is to be determined according to the principles stated in ss 9 and 10 of the CLA, with s 9(2) providing a statutory statement of the Wyong v Shirt “negligence calculus”.4 [127] As I have concluded, the risk of harm here was reasonably foreseeable. It was something that the BCC knew, or ought reasonably to have known. The risk of harm was not insignificant. Although the barricade set-up was only to remain in place 4 Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48. -- 45 of 97 -- 46 overnight and it was thought by the Team Leader, Mr Rodgers, that users of the footpath would see and appreciate the hazard, it was objectively probable that harm would occur if reasonable precautions were not taken against the risk of harm that the erection of the barricade created. When considered prospectively, the likely seriousness of the harm that might result if the risk materialised was moderate. The most likely injuries that a cyclist might sustain if they ran into the barricade would be in the nature of cuts, abrasions, soft-tissue injuries and fractures. The risk of a serious injury of the kind sustained by Mr Dennison eventuating in the circumstances that actually occurred here was perhaps remote. However, that is not to the point. The risk that a cyclist might suffer some bodily injury by falling onto one of the uncapped road dogs upon colliding with the barricade was not remote. It was a realistic and tangible risk that the BCC ought to have realised. [128] Whilst the risk of harm was created by the BCC in the course of works it had performed to repair a public facility (i.e. the footpath) for the benefit of users as a consequence of servicing an essential public utility (i.e. the water main), to my mind that does not weigh heavily in the mix. It also does not appear to me that there would have been any great burden placed upon the BCC to take precautions to avoid the risk of harm in this case. There was no evidence that the BCC did not have the assets and means available to it to take precautions of the kind that Mr Dennison asserts it should have taken. The only burden would perhaps have been the additional time and effort it would have taken the work crew to install or set up further safety features and devices. It seems in this case a decision was simply made by Mr Rodgers that it was not necessary to do anything more than what had been done because he assumed that there would be sufficient lighting available, and the set-up would be adequate as the barricade would be seen at night. It is obvious that he simply did not turn his mind to the possibility that a cyclist might run into the barricade in the darkness. [129] Upon considering the various matters I have set out above, I am of the opinion that the BCC failed to take reasonable care as required and, subject to my further consideration of s 36 of the CLA, would have breached the duty of care it owed to Mr Dennison. By using standard orange mesh barricade and yellow road dogs that were not retroreflective or fluorescent; by assuming that there would be adequate lighting from other sources, but without checking; and by failing to affix or install additional lighting or a retroreflective warning sign on or before the barricade, it failed -- 46 of 97 -- 47 to take reasonable care to adequately ensure that the barricade would be visible to an approaching cyclist at night. By these same acts and omissions and by failing to provide a retroreflective advance warning sign it failed to take reasonable care to adequately warn cyclists of the presence of the hazard. By these same acts and omissions; by using unsecured witches hats, which it knew were often stolen or removed; and by affixing the front inner segment of the mesh to the perimeter fence, but by placing the witches hats only on the narrow footpath section before the barricade, it failed to adequately delineate the position and extent of the barricade. By failing to place a retroreflective sign or other markers before the barricade, directing pedestrians and cyclists to travel around the barricade on the outer, left-hand roadside, it failed to take reasonable steps to adequately provide and direct a means of safe access and travel around the barricade across the footpath. [130] In reaching these conclusions, I have also considered the principles stated in s 35 of the CLA. Although the BCC suggested that s 35(b) applied here and was relevant to determining whether it owed a duty of care and, if so, whether it breached that duty. I do not agree. The principle in that subsection provides that the “general” allocation of financial or other resources by a public or other authority is not open to challenge. But here it is not the general allocation of resources that is in issue. This case concerns the particular deployment of resources which the BCC had and its decisions with respect to the barricade set-up, delineation of the hazard and the placement of witches hats, lighting adequacy, and the use of warning signs and other traffic control measures. Whilst the statement of principle in s 35(a) implies that no particular evidence need be adduced by a public or other authority to establish the proposition that the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to it for the purpose of exercising its functions, that is not necessarily the case with s 35(b). There was no evidence adduced in the trial with respect to BCC’s general allocation of financial or other resources, nor any evidence or basis to suggest that the BCC did not have the resources to enable it to provide additional markers, retroreflective signs, lighting and the like. The only exception was with respect to the possibility of putting caps on the road dogs. There was some evidence that that was not presently possible and would require BCC to manufacture its own product. To my mind, BCC’s own internal policy documents, read in conjunction with the Manual of Uniform Traffic Control Devices, (MUTCD), -- 47 of 97 -- 48 confirm that the BCC otherwise generally had the necessary resources available to employ additional traffic control measures in this case, had it deemed it necessary to do so. That conclusion is in my view reinforced by the subsequent immediate action the BCC took to change its procedures with respect to pathway barricades as a result of this incident, which I discuss further below. There was no evidence or suggestion that this in any way was some additional unreasonable imposition upon the BCC’s financial or other resources. Section 36 of the CLA [131] Mr Dennison’s case is that s 36 does not apply to a claim in negligence. Rather, he argues, its operation is confined to claims for the tort of breach of statutory duty, as the heading to the section suggests. On that point, Mr Dennison relies upon the decision and reasoning of Dalton J (as her Honour then was) in Hamcor Pty Ltd v Queensland.5 Moreover, Mr Dennison argues that in placing the barricade across the footpath the BCC was carrying out the cathodic protection works, and was not performing any function of a public authority under s 901 of the LGA, and therefore the provision does not apply. Finally, Mr Dennison submits that if the provision does apply, the BCC is 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. It says the notion that a public authority would install a “mantrap” and then fail to give any warning of its existence or provide any delineation of a safe path around it, was so unreasonable that, even if s 36 did apply, the higher standard of negligence required by s 36(2) would be established. [132] The BCC contends that s 36 of the CLA applies and operates to provide a qualified exemption to liability in a case such as this. It points out that although there is a dearth of authority in Queensland on the point, the New South Wales Court of Appeal considered the provision in Seqwater v Rodriguez & Sons Pty Ltd6 and determined that it applied in a case based on a negligent breach of duty. It submits that I should follow that decision, and not Hamcor, and similarly conclude that the provision applies here to Mr Dennison’s action. 5 [2014] QSC 224 (Hamcor). 6 (2021) 393 ALR 162 (Rodriguez). -- 48 of 97 -- 49 [133] The BCC further submits that by placing the barricade across the footpath it was clearly performing a function of a public authority under s 901 of the LGA. That being so, it says liability is precluded unless its actions or omissions fall within the ambit of s 36(2), which it says effectively introduces a test of Wednesbury unreasonableness.7 It says that test is not met here as it cannot 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. [134] The first point to consider is whether s 36 applies to a claim of involving an alleged negligent breach of a duty to take reasonable care. [135] It is true that there is a dearth of authority on the application and effect of s 36 of the CLA. The provision has seldom been considered by Queensland courts. In Hamcor Dalton J accepted a similar argument to that raised by Mr Dennison about the inapplicability of s 36 to cases other than a breach of statutory duty. In doing so, her Honour noted that pursuant to s 14(2) of the Acts Interpretation Act 1954 (Qld) the heading to a section formed part of the section and thus the heading to s 36 could be considered when construing the provision. Her Honour further observed that, quite aside from s 14 of the Acts Interpretation Act, because the language of the section was expressed in general terms reference may be had to its heading to determine the scope of the expression used within the section.8 Her Honour concluded that upon a reading of the section as a whole and within its statutory context, including its heading, the plaintiffs’ argument that the section was limited to actions for breach of a statutory duty seemed to be the most natural reading of the words. Her Honour also 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.9 [136] A subsequent appeal brought by the plaintiffs was dismissed.10 The Court of Appeal determined that it was unnecessary to further consider Dalton J’s interpretation of s 36 because the appeal failed on other grounds. 7 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (Lord Greene MR). 8 Ibid, [192], citing Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 584, 602 and 618. 9 Ibid, [193]-[197]. 10 Hamcor Pty Ltd v State of Queensland [2016] Qd R 271. -- 49 of 97 -- 50 [137] There are no other Queensland cases of which I am aware, or which counsel for the parties could point to, where the application of s 36 has been further examined. However, as the BCC points out, the provision was extensively considered by the New South Wales Court of Appeal in Rodriguez. [138] The plaintiff there commenced a class action on behalf of some 6500 group members against the Queensland Bulk Water Supply Authority, SunWater Ltd and the State of Queensland for property loss allegedly caused by their alleged negligence in the release of water from catchment dams during the devastating 2011 Queensland floods. The trial judge gave judgment for the plaintiff. In doing so, his Honour rejected the plaintiff’s argument, based on Hamcor, that s 36 of the CLA did not apply as it was confined to cases where alleged liability was based on an action for breach of statutory duty. [139] While each of the defendant parties appealed, Sunwater and the State of Queensland settled with the plaintiff before the appeal was heard. The Court of Appeal ultimately allowed the remaining appeal by Seqwater. In doing so, it confirmed the correctness of the trial judge’s reasoning in declining to follow Hamcor, holding that s 36 of the CLA was applicable to the claim. After considering Dalton J’s analysis in Hamcor, the Court concluded that the better view was 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.11 [140] Mr Dennison argues that I am not bound to follow the decision of the New South Wales Court of Appeal Rodriguez and, in any event, that I would not do so in the face of the compelling reasoning of Dalton J in Hamcor. [141] Notwithstanding Mr Dennison’s arguments and the points that he raises in support of the correctness of Dalton J’s interpretation of s 36 in Hamcor, I consider that I should follow the decision of the Court of Appeal in Rodriguez. It is correct to say that I am not bound to apply that decision as a matter of law and precedent. That is because it is not a decision of the Court of Appeal in this jurisdiction. I also do not consider that the principles stated by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd12 apply, such that I should not depart from the New South Wales Court of 11 Rodriguez, [65]-[69]. 12 (2007) 230 CLR 89, [135]. -- 50 of 97 -- 51 Appeal’s interpretation of the provision unless I considered it to be “plainly wrong”. Whilst the CLA has similarities with the various civil liability statutes enacted in other jurisdictions, particularly the Civil Liability Act 2002 (NSW), it is not uniform national legislation. In that regard, I note that under the New South Wales Civil Liability Act, s 43 deals with proceedings against a public or other authority based on “breach of statutory duty”; whereas s 43A deals with proceedings against a public or other authority for the exercise of “special statutory powers”. Section 36 of the CLA is expressed in similar but not entirely the same terms and appears to draw upon aspects of both of those provisions. [142] Irrespective, the Court’s decision in Rodriguez is highly persuasive. Furthermore, I agree with the Court’s reasoning and conclusion, particular as expressed in the following passage:13 “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. As the primary judge observed, “the definition of ‘function’ in s 34 is not confined to a ‘duty’.” Further, the phrase “breach of statutory duty” used in the heading is at best a paraphrase of the third limb of the definition of duty, the meaning of which is not without its own difficulties. Finally, 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.” [143] I similarly conclude that there is no reason to read down s 36 so as to limit its application only to a proceeding against a public or other authority based on a breach of statutory duty. In addition, to the reasoning of the Court set out above, I would add the following. 13 Rodriguez, [68]. -- 51 of 97 -- 52 [144] Whether s 36 applies in this case depends upon the proper construction of the provision. That task is to be undertaken through the analysis of text, context and purpose in the way described by Kiefel CJ and Keane J The Queen v A2:14 “The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.” [145] With respect to context and purpose, Dalton J In Hamcor noted that there was no doubt from the second reading speech and the Explanatory Notes to the Civil Liability Bill 2003 that the overall aim of the CLA was to protect defendants.15 I agree. However, I disagree with her Honour’s further observation that there is little else useful to be gained from the extrinsic materials relating to the CLA. In my view, the 14 (2019) 269 CLR 507, [32]-[33]. 15 Hamcor, [191]. -- 52 of 97 -- 53 Explanatory Notes and other relevant extrinsic materials contain several pertinent statements relevant to understanding the context and purpose of s 36. [146] In several places, the introductory outline section of the Explanatory Notes to the Civil Liability Bill makes plain that the main purpose of the Act is to facilitate the ongoing affordability of insurance.16 It is evident the Bill (and now the CLA) sought to achieve that purpose though legislation that would provide statutory clarification of some basic principles of law, which included fundamental changes to the law of negligence, and through the regulation and limitation of awards of damages for personal injury. [147] The Explanatory Notes expressly state that the draft Bill implements relevant recommendations made by a panel of experts, chaired by the Honourable David Ipp, set out in the “Review of the Law of Negligence Final Report” (the Ipp Report).17 The Ipp Report contained 61 recommendations, including recommendations with respect to liability of public authorities.18 The online version of the Explanatory Notes contains a hyperlink to the report.19 [148] Of present relevance are the recommendations that a public authority should be able to avail itself of a “policy defence”, whereby the public authority could answer a negligence claim by pleading that, although it failed to take reasonable care, it did so on the basis of “financial, economic, political or social considerations”.20 The panel considered, “…in a claim for negligently-caused personal injury or death where the alleged negligence arises out of the exercise or non-exercise of a public function, the functionary (that is, the person or body performing the public function) should be able to plead the policy defence” and that “…where the alleged negligence consists of the exercise or non-exercise of a public function, and the public functionary pleads that the failure to take precautions to avoid the relevant risk was the result of a decision about the allocation of scarce resources or was based on some other political or social consideration, liability can be imposed only if the decision was so unreasonable that 16 Explanatory Notes, Civil Liability Bill 2003, 1-2. 17 Review of the Law of Negligence, Final Report, Commonwealth of Australia, September 2002. 18 Ibid, 12. 19 ‘Queensland Government, Queensland Legislation’, ‘Civil Liability Act 2003, Explanatory Note’(Web Page April 2026) <https://www.legislation.qld.gov.au/view/html/bill.first.exp/bill-2003-964>. 20 Ipp Report, 153-154. -- 53 of 97 -- 54 no reasonable authority in the defendant’s position could have made it.”21 Accordingly, the panel formulated recommendation 39 in these terms:22 “In any claim for damages for personal injury or death arising out of negligent performance or non-performance of a public function, a policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant’s position could have made it.” [149] The panel also noted the potential for plaintiffs to avoid the operation of legislation enshrining the policy defence based on recommendation 39 by bringing an independent claim based on breach of statutory duty. Although the panel considered this to be unlikely, it thought it would be desirable to block that possibility. Accordingly, by recommendation 42, it further proposed:23 “In the absence of express provision to the contrary in the relevant statute, any action for damages for negligently-caused personal injury or death made in the form of a claim for breach of statutory duty is subject to the provisions of this Act.” [150] It is apparent that the subsequently enacted provisions of the CLA concerning liability of public and other authorities do not mirror the wording of the Ipp Report recommendations in precise terms. Nevertheless, it remains the case that the report’s recommendations provide the foundation for those provisions. [151] In December 2002 the Queensland Parliament released a consultation draft of the Civil Liability Bill 2002. The major proposals of the draft Bill were examined in the Queensland Parliamentary Library Services, Research Brief No. 2003/01. With respect to then cls 36-37 (later cl 35-36 and subsequently ss 35-36 of the CLA), the Research Brief relevantly noted:24 21 Ibid, 157. 22 Ibid, 158. 23 Ibid, 163. 24 Queensland Parliamentary Library Services, Research Brief No. 2003/01, 23. -- 54 of 97 -- 55 “Chapter 2, Part 3 of the draft CLB (Qld) implements the tenor of the Ipp Report recommendation in relation to civil liability in tort even if sought in a breach of contract action or other action. Clause 36 sets out the principles concerning resources and financial constraints, competing functions etc of a public or other authority that apply in determining duty of care and breach of duty. Clause 37 states that an act or omission of the authority does not constitute a wrongful exercise or failure unless it was, in the circumstances, so unreasonable that no authority having the functions of the authority in question could properly have considered it to be a reasonable exercise of its function.” [152] It is apparent from the text of the legislation that ultimately the “policy defence” recommended by the Ipp Report was enacted in the CLA across two provisions: s 35 (Principles concerning resources, responsibilities etc. of public or other authorities) and s 36 (Proceedings against public or other authorities based on breach of statutory duty). Section 35 enshrines the “policy” considerations as relevant principles to apply when deciding whether a public or other authority had a duty or has breached a duty. Section 36 on the other hand contains the Wednesbury unreasonableness “defence”, which applies to “acts” and “omissions” in the wrongful exercise of or failure to exercise a function of a public or other authority. [153] With respect to cl 36, which became s 36 of the CLA, the Explanatory Notes further state:25 “Clause 36 provides that the mere fact that a public or other authority undertakes a certain activity under a statutory power, or does not undertake a certain activity despite holding a statutory power to do so, of itself does not mean the authority must act in the same way in each circumstance. However, if the actions of the public authority are manifestly unreasonable in the circumstances, those actions may constitute a wrongful act or a failure to act. The standard by which the actions of the public authority are to be considered is that of a reasonable public authority.” 25 Explanatory Notes, Civil Liability Bill 2003, 12. -- 55 of 97 -- 56 [154] It is important to note that the Explanatory Notes make no reference to the heading of cl 36 and does not suggest that its terms are confined to a case involving an alleged breach of statutory duty. Rather, the wording of the explanation of cl 36 in the Explanatory Notes suggests that the provision is concerned with the exercise or non- exercise of a “statutory power”. In my view, it is in that sense that the inapt and ambiguous phrase “statutory duty” appears in the heading to s 36. Section 36 applies to cases involving the wrongful exercise, or non-exercise, of a statutory power (i.e. function), regardless of whether the legislative provision in question might be construed as imposing a statutory duty upon the public or other authority. [155] In my opinion, these various aspects of the extrinsic material are consistent with a broader construction of s 36 which extends to actions for an alleged negligent breach of a duty to take reasonable care and not one that is restricted simply to actions based on an alleged breach of statutory duty. It is clear that the provisions of Chapter 2, Part 3, Division 1 of the CLA (ss 34-37) were intended to give effect to relevant recommendations of the Ipp Report to limit the liability of public authorities in civil claims, however arising, as part of the statutory reforms Parliament intended to make to the law of negligence. That is the mischief the statute sought to remedy. [156] I therefore proceed on the basis that s 36 of the CLA applies to a case alleging a negligent breach of duty. [157] The next point to consider is the function being performed by the BCC. The BCC says that the necessary factual enquiry to be undertaken is to ascertain whether the activity or task being undertaken was one having its lawfulness founded in a statutory function, as opposed to the general law. If it was the former, then s 36 of the CLA applies. The BCC cited Weber v Greater Hume Shire Council,26as authority for this proposition. Whilst that case dealt with s 43A of the Civil Liability Act (NSW) and the particular wording of that provision, and therefore the analysis in that case may not be apt to all instances where the application of s 36 of the CLA is to be considered, I agree that is the correct approach to apply in this particular case where the case concerns the supposed exercise of a statutory function of a public authority. 26 (2019) 100 NSWLR 1, [44]-[47] -- 56 of 97 -- 57 [158] As stated, there is no dispute the BCC is a public authority. It is also not in dispute that under s 901 of the LGA it had “control of all roads” within its area, which included the footpath where the incident occurred. However, Mr Dennison disputes whether, by erecting the barricade to guard the curing concrete its workers had laid as part of the footpath reinstatement works, the BCC was exercising a function under s 901 of the LGA. He says that these actions were collateral or incidental to the cathodic protection works it had performed. [159] Section 34 of the CLA provides that for the purposes of Part 3, Division 1 of the Act (which includes ss 35 and 36) “function” includes power. In my view, it is quite clear that the BCC is given power under s 901 of the LGA to exercise control over roads within its local government area and that such a power is a statutory function. So much has been expressly or implicitly accepted in other cases, including Spencer v Maryborough City Council,27and Moule v Cambooya Shire Council,28 and also in Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council,29 in respect of s 60 of the Local Government Act 2009 (Qld), which is expressed in similar terms. This does not appear to be controversial. However, Mr Dennison maintains that whatever task the work crew performed on this occasion to erect the barricade was simply not a function within the scope of s 901, as any “construction, maintenance or improvement” of the footpath was complete once the new concrete was laid. [160] The BCC accepts that the footpath works were carried out as part of its cathodic protection works. However, it submits that in doing so it was nevertheless performing a statutory function conferred upon it by s 901 of the LGA. On its argument, it does not matter that the function was collateral or incidental in the way that Mr Dennison categorises it. [161] In my view, the evidence demonstrates that the footpath works, including the erection of the barricade around the freshly laid concrete, were works carried out by the BCC’s workers for the maintenance or repair of the footpath, pursuant to the statutory functions conferred upon the BCC under s 901 of the LGA. It is artificial to view the erection of the barricade as a separate activity, unconnected with the footpath reinstatement works. This is not a case where the public authority was doing 27 [2002] QCA 250, [14] (Jerrard JA, in dissent albeit not on this point). 28 [2004] QSC 50, [12];[17]-[18] (Fryberg J). 29 [2025] QCA 207, [64]-[69] (Doyle JA, Bond JA and Crowley J agreeing). -- 57 of 97 -- 58 something, incidental to the exercise of a statutory function, for which no statutory authority was required. Furthermore, it must be noted that it was never part of Mr Dennison’s pleaded case that the function being exercised was cathodic protection works and the footpath works were simply incidental to the performance of that function. Whilst neither party sought to identify the statutory source of the BCC’s power to perform the cathodic protection works, it seems obvious to me that the BCC must also have been performing those works pursuant to a function conferred upon it by statute. Irrespective, I am concerned here with the case as pleaded, which fixes upon BCC’s wrongful exercise of, or failure to exercise, its functions as a public authority with control of roads under s 901 of the LGA. The case was never styled or run as one involving the negligent carrying out of cathodic protection works or some other activity. Indeed, it was squarely put as one where the BCC, having the control of the footpath under s 901 of the LGA, was obliged to take reasonable precautions against the risk of harm caused by its erection of the barricade. In a sense, the true source of the function or power to erect the barricade is beside the point as the focus of Mr Dennison’s case has always been that the BCC failed to do something that it should have done under the authority of s 901 to address the hazard, risk and danger posed by the barricade it had erected. [162] I am therefore satisfied that the action brought by Mr Dennison is one based on an alleged wrongful exercise of, or failure to exercise, a function of a public or other authority. Whilst is might be possible to categorise the case as either a wrongful exercise of the s 901 function, or a failure to exercise that function, I proceed on the basis that it is based on a wrongful exercise, in the sense that by erecting the barricade in the way it did, the BCC exercised a statutory function in a way that allegedly breached its duty to take reasonable care to avoid the risk and occurrence of foreseeable injury to users of the footpath, including Mr Dennison. [163] The final point to consider is whether the BCC’s acts or omissions in erecting the barricade were so unreasonable in the circumstances that no public or other authority with such functions could properly consider them to be a reasonable exercise of its functions. Mr Dennison bears the onus of establishing that proposition according to the test imposed by s 36(2). -- 58 of 97 -- 59 [164] Mr Dennison submits I would reach that conclusion. He points in particular to the evidence of Mr Harris with respect to risk assessment, industry practice and standards and proper methods of traffic management and says that by erecting the barricade in circumstances where it failed to comply with relevant standards and its own procedures and policies in relation to risk assessments, work instructions and control measures, and instead prioritised protecting the curing concrete over the safety of cyclists on the footpath, it thereby acted so unreasonably that “the Court cannot envisage any person in that position considering it to be a reasonable exercise of the power.” [165] For its part, the BCC submits that its acts or omissions were not so deficient so as to come within the scope of the proviso in s 36(2) of the CLA. It submits that the evidence of Mr Doiron and Mr Harris does not touch upon the issue and their assessments of the various features of BCC’s barricade set-up do not demonstrate that its acts or omissions were so unreasonable that it cannot be envisaged that any person in its position could properly have considered doing the work in that way. It further submits that the various standards, procedures and policies said to apply to the work performed by its workers are irrelevant or otherwise that the failure to adhere to them does not satisfy the test in s 36(2). [166] I do not accept BCC’s submissions with respect to the evidence of Mr Doiron and Mr Harris. The test in s 36(2) of the CLA requires consideration of whether the BCC’s act or omission “…was in the circumstances so unreasonable…”. In my view, all pertinent circumstances relating to the act or omission, including the nature and extent of the relevant risk and the circumstances in which it arose, the materialisation of that risk and the harm it occasioned, are to be considered. [167] In that context, the evidence of Mr Doiron and Mr Harris with respect to lighting levels at the scene of the incident is entirely relevant to the circumstances to be considered. I reiterate my earlier assessment of their evidence and my findings with respect to the inadequate lighting levels, which I have found was a major contributing factor causing Mr Dennison to collide with the barricade. [168] I am also satisfied that Mr Harris’ evidence with respect to BCC’s compliance with the policies, standards and guidelines he identified in his report, and the adequacy of the BCC barricade set-up, are relevant to my consideration of s 36(2). It is convenient -- 59 of 97 -- 60 to deal with that evidence after outlining the relevant documents and some of the further evidence that was given about them by the BCC’s witnesses. Relevant standards, guidelines, policies and procedures [169] The first document to consider is Part 3 of the “Manual of Uniform Traffic Control Devices (Queensland)”, entitled “Works on Roads”, (MUTCDQ), which is part of a Queensland Government publication based on a similarly titled section of the 2009 Australian Standard AS1742.36 20 – MUTCD. Both Mr Doiron and Mr Harris cited these documents as providing the relevant and applicable standards for the footpath works performed by the BCC. [170] I reject BCC’s argument that the MUTCDQ is irrelevant as it applies only to works on roads used by vehicular traffic and not to footpaths used by pedestrians or cyclists. That contention appears to be founded upon evidence given by Mr Ellis as to his belief about the types of work to which the MUTCDQ applied. Whilst it is clear in context that parts of the MUTCDQ are only relevant to roads used by vehicular traffic, the introduction section of the document makes plain that Part 3 of the MUTCDQ specifies the traffic control devices to be used to warn, instruct and guide road users in the safe negotiation of work sites on roads, including footpaths, and is applicable to works associated with public utilities and services which cause interference or obstruction to the normal use of a road by any road user. The MUTCDQ distinguishes between the general term “road”, which is not defined but clearly includes a footpath, and the more specific term “roadway”, which is defined to mean, “that portion of the road devoted particularly to the use of vehicles, inclusive of shoulders and auxiliary lanes.” A “road user” is defined as “any driver, rider, passenger or pedestrian using the road”. Similarly, “traffic” is defined as “all vehicles, persons or animals travelling on a road”, which would include a bicycle. [171] The introduction goes on to state that the objective of Part 3 of the MUTCDQ is to provide agencies carrying out works on roads with a set of uniform practices for the signing and delineation of construction and maintenance works which will promote the safety of both road users and workers at the work site. It clearly applies here to the work done by BCC on the footpath, albeit I accept that not all sections of the document are applicable to footpaths, as in many instances the relevant paragraph -- 60 of 97 -- 61 clearly states, or implies, that it deals with requirements to be observed in respect of a “roadway”. [172] It is pertinent to note that the definitions section of Part 3 of the MUTCD provides that the word “should” is used throughout the document to designate an “advisory condition” only; but that the word “shall” is used to stipulate a “mandatory condition”, with requirements that must be met. [173] Various sections of Part 3 of the MUTCD are relevant here. By way of summary, I note the following particular paragraphs: (a) 1.5 – Responsibility for safety at work sites: “The organisation responsible for construction or maintenance operations on roads or bridges needs to be aware of its responsibilities for any injury to road users or damage to property as a result of such operations…. Steps shall be taken to warn the public of prevailing conditions and to guard, delineate, and, where necessary, illuminate work which may pose a hazard to road users.”; (b) 2.2.3 – Risk management: “Risk management entails the identification and analysis of all safety risks likely to arise during roadworks including the setting up, operating, changing and ultimate dismantling of a traffic guidance scheme, followed by the determination of appropriate measures to mitigate those risks…. In each case the process should be carried out by first identifying all the safety risks likely to arise, evaluating them in terms of likelihood of occurrence and adverse consequences using historical data, experience or other means. The proposed procedural statement or traffic guidance scheme should then be checked in detail to ensure that adequate means of controlling or reducing those risks found to be significant are in place.”; (c) 2.3.7 – Provision for pedestrians and bicycles: “Where pedestrians…have to move through, past or around a work site or to cross the road within a work site, they shall be provided with and directed to suitably constructed and protected temporary footpaths…”; -- 61 of 97 -- 62 (d) 2.4.1 – Device Requirements – Selection and use: “Advance warning signs and devices should allow adequate time for correct response under the anticipated worst conditions…” (e) 2.4.2 – Device Requirements - Delineation: “The travelled path on the approaches and past the work area shall be delineated so as to properly define which part of the roadway is available to road users, or the path that traffic is required to follow, under all reasonably expected weather and atmospheric conditions, day or night as applicable.” I note here that the use of the term “roadway” in this section suggests that it relates to the vehicular roadway; (f) 2.4.3 – Device Requirements - Night conditions: “Signs shall be either retroreflective or floodlit. Delineating devices shall comprise or incorporate retroreflectors. Flashing lamps may be used to draw attention to certain advance signs... Flashing lamps shall not be used for delineation” and “Hazards or barriers may require floodlighting to make them more conspicuous.”; (g) 3.1 – Functions of Devices: The functions of the various traffic control devices include: (a) to warn, guide and instruct road users, e.g. signs; (b) to indicate the direction and width of the available travelled path, e.g. delineators; (c) to discourage access to the whole or portion of the work area, e.g. barrier boards and mesh fence; and (d) to provide physical protection for the work area and its occupants, e.g. safety barriers. (h) 3.9.1 – Traffic cones and temporary bollards: “Traffic cones should be used on short-term works to define the traffic path past or around the work area. They shall comprise cones of fluorescent red or fluorescent orange material that is resilient to impact and will not damage vehicles when hit at low speed” and “[F]or night- time use, cones and bollards shall be fitted with a white horizontal -- 62 of 97 -- 63 retroreflective band…” and “[C]ones and bollards shall be designed to be stable under reasonably expected wind conditions and air turbulence from passing traffic. However, they can be displaced by passing traffic and therefore, unless workers are there to replace them, should not be used unless they are securely fixed to the pavement.”; (i) 3.9.3 – Temporary hazard markers: “Temporary Hazard markers should be used to show any lateral change of direction of the travelled path through a work site and to delineate hazards and non-trafficable work areas adjacent to the travelled path”; (j) 3.10.1 – Containment fences: “Mesh fencing should be used to exclude pedestrians from a work area as well as for the containment of workers on foot and plant…It comprises a flexible orange mesh approximately 1 m high. If mesh fencing is erected parallel and adjacent to traffic, separate delineation is needed at night...”. [174] Mr Ellis confirmed in his evidence that the BCC was required to comply with the MUTCDQ. He thought the manual was mainly for vehicular traffic but agreed that there was a pedestrian section in there as well. When shown a copy of the document, Mr Ellis agreed that the section 2.3.7 on “Provision for pedestrians and bicycles”, would apply if a worksite remained in situ overnight but said that “if it’s made safe, it’s fine.” When asked about section 2.4.2 on “Delineation”, Mr Ellis said that he thought that was for roadworks for vehicles. He said the same with respect to 2.4.3 which was headed “Night Conditions” and added that he assumed most of Part 3 of the MUTCDQ only applied to vehicular roadways. He agreed that the document distinguished between the “roadway”, which was used for cars, and “road” generally which referred to the road reserve more generally. [175] When asked about section 3.9, “Devices for delineating and indicating the travelled path”, Mr Ellis said that from his experience witches hats could be moved unintentionally by passing cars and that there was a tendency for council witches hats that have flashing lights and things like that to be stolen by people from worksites. He agreed that unless a traffic cone was somehow secured it was quite possible for -- 63 of 97 -- 64 someone to come by and simply take it. He agreed that at this worksite even if a traffic cone had been there the night before the accident, if it had not been secured there would be no way of ensuring that it was going to be there at the time of the accident. He agreed that the orange mesh bunting and the road dogs used on this occasion were not retroreflective as referred to in the MUTCDQ. He agreed that if there were no witches hats present at the site then there would have been nothing on the site that was retroreflective. In re-examination, when shown photographs within Exhibit 8, Mr Ellis said although the witches hats were not retroreflecting themselves, they each had a retroreflective band. He said that was the style of witches hat council always used at the time. [176] The next relevant document to consider is the “Austroads” publication, “Guide to Road Design– Part 6A: Pedestrian and Cyclist Paths” (GTRD). Mr Harris identified that document as a relevant overarching national standard or guideline relevant to temporary roadworks of the kind undertaken by the BCC here. The introduction summary to Part 6A of the GTRD states that it “provides guidance for road designers and other practitioners on the design of paths for safe and efficient walking and cycling.” [177] Within section B.3, “Provision at Works”, the GTRD states by way of general introduction at B3.1: “When construction and maintenance work is carried out involving trenching or other construction work across roads and paths, access for cyclists (and pedestrians in the case of shared paths) should be maintained, and to a satisfactory quality to avoid the use of alternative routes which may be hazardous or inconvenient for cyclists (and pedestrians). Construction and maintenance works should be undertaken in such a way that these activities do not place cyclists at risk during the works period”. [178] Mr Harris’ opinion was that although this was a general statement it highlighted the importance of considering path users in a risk assessment. [179] Elsewhere, the GTRD states: -- 64 of 97 -- 65 “Where works on paths are carried out for a period exceeding one day, the works should be made sufficiently visible for night-time path travel, so that path users are able to observe conditions under low ambient light conditions including temporary access paths, and take appropriate action.” [180] Mr Harris’ opinion was that this statement was a reminder of the importance of good visibility of the site during night conditions [181] The next document is a BCC internal work safety document referred to as “IMSAD- 01064 – Construction Safety for Large Size Projects, Water & Waste Water Master Reference Plan”, (CSLSP). The document was issued on 20 January 2009 and was prepared specifically for works to be undertaken by Brisbane City Works for the BCC at various sites from 1 July 2009 to 30 June 2010, which, amongst other things, would include earthworks and concrete works. Mr Burgin provided a copy of the document to Ms Tollenaere as part of the WHSQ investigation. [182] The CSLSP appears to be composite or compilation of a work method statement, a safety guide, checklist and log, a risk assessment document and a procedural manual to manage and respond to risks of harm to workers and the general public. [183] The general introductory section of the CSLSP identified risks of “vehicle accident on public road” and “personal injury” amongst the foreseeable risks at project work sites. Several sections of the document given to Ms Tollenaere, providing for the noting of details for things such as the completion of site safety inductions for workers and the implementation of control measures for identified risks, were not completed. The section for conducting a risk assessment was completed. Against an identified activity of “Setting up Temporary Traffic Guidance Scheme” for identified risks for “pedestrian/vehicle movements” the risk assessment matrix identified possible control options as “Barricade work area, Closure of footpath, Closure of Traffic Lane, Traffic control”. [184] Under a list of site safety instructions, at section 9.5 – “Traffic Management”, the CSLSP noted in respect of pedestrian traffic, “Provide a safe and clearly defined pedestrian path past the work site”. -- 65 of 97 -- 66 [185] The CSLSP also contained a detailed instruction on how to conduct a risk assessment. A “high risk activity” risk assessment table identified risks at point 6.2 in respect of “Traffic Control for Motor and Pedestrian Traffic”. Although no specific risk of pedestrians sustaining person injury from colliding with barricades around work sites was identified, the control options in that section noted, “Use barriers to inhibit encroachment of pedestrians on to the work site” and “Place warning signs on barricaded area to inform pedestrians of hazards”. The assessed residual risk level was noted as “L2” (low). Whilst the risk assessment appears to cover all motor and pedestrian traffic at work sites, it seems to me that the assessment is directed at active work sites where workers are present performing work, rather than a worksite left unattended overnight, such as was the case here. [186] Appendix A18 to the CSLSP contains a document titled “Site Inspection & Plan Checklist.” The checklist (uncompleted) asks at question 1, “Is Pedestrian or Vehicle traffic affected?” and contains a series of specific prompts for which a “yes/no” tick is required. If pedestrian traffic is affected, the specific prompts include, “Signs erected” and “Barriers erected”. [187] Mr Rodgers was asked about the CSLSP in cross-examination. He agreed that someone had ticked boxes and made notes in the risk assessment section of the document but said it was not his handwriting and he did not know whose it was. He presumed it had been done previous to the project. [188] The next document to consider is another internal work safety document of the Brisbane City Works, Construction Group, referred to as “IMSAD-01009 – Project Management Plan for Cathodic Protection Works”, (PMP). The document was issued 14 May 2008 but was signed and dated by various management personnel on 4 December 2009. The PMP appears to be a more specific plan for the cathodic protection works being undertaken by the work unit between 30 November 2009 and 30 April 2010, including the works along Zillmere Rd at the incident site. It too contains various work safety checklists and risk assessment sections. [189] I note that, amongst other things, the PMP contains a concrete order sheet record for a delivery to “Zillmere Rd, Aspley – Footpath” on 17 December 2009 at 8:30 am. I infer this was a delivery of product to enable the work unit to re-concrete the footpath as part of its restoration works. -- 66 of 97 -- 67 [190] At section 9, headed “Project Site Rules”, the PMP noted at point (28), “A safe and clearly defined path for pedestrians must be provided in accordance with BCC specifications.” At section 11, headed “Project Site Risk Assessment & Work Method Statements”, the PMP stated: “All work aspects of this project will have a comprehensive Risk Assessment completed by an authorised Workplace Health and Safety Officer prior to any relevant works starting. These Risk Assessments will be conducted in accordance with all relevant Australian Standards and Occupational Health and Safety Legislation. The risks associated with this project shall be recorded in form lMSAD-01064 WH&S Plan. The control measures for these identified risk activities are as per those documented in lMSAD-01050 within Construction Procedure Manual. The hazards and risks identified for this project will be communicated through site inductions. The controls specified by IMSAD-01050 shall be implemented for all identified hazards & be monitored daily. Reviews by the team leader & WHSO will continue throughout the project. Should additional hazards be identified, assessments will be completed, additional controls implemented and employees informed of these additional risks” [191] The “Project Traffic Control Plan” set out in the PMP provided, at paragraph 1.3, in respect of “Pedestrian Traffic”: “Pedestrian traffic will be controlled by signage identifying alternate routes. Pedestrians will not be permitted to traverse through the construction works. Temporary pedestrian paths shall be of a standard similar to that which existed prior to works. A surface of crusher dust will be used for temporary pathways.” [192] At section 2 of the PMP, one of the miscellaneous tasks listed in the “Weekly Site Inspection Checklist” was, “Site left for public in a safe state overnight (barricades/hazard lights/signs).” That item was ticked off for each listed day, Monday to Friday, which I infer was confirmation that the task had been checked each weekday that work was being undertaken, however the particular site location and dates of work are not identified. -- 67 of 97 -- 68 [193] Mr Rodgers was asked about the PMP in cross-examination. He agreed that the reference to cathodic protection works was the kind of work that his work crew had been performing on 17 December 2009. He agreed that he had signed off on the “Quality Assurance & Environmental Checklist” on 4 December 2009 and presumed that he had completed the checklist and the “Project Weekly Work Site Inspection Checklist” on the previous page. When asked about the Monday to Friday columns in that checklist, he was unable to say if they related to the week in which works had been done on 17 December 2009, as it could have been from the previous week. When asked about point (28) in the “Project Site Rules” (A safe and clearly defined path for pedestrians must be provided in accordance with BCC specifications), he was unable to remember what the BCC specifications were. [194] The next relevant document is another internal BCC work document of the Brisbane City Works – Construction Group, titled “IMSAD-01068 – Construction Safety for Small Size Projects, Cathodic Protection of Trunk Main” (CSSSP). The document bears an issue date of 20 January 2009 and appears to be a more specific workplace health and safety plan for the cathodic protection works being undertaken by the workgroup. Sections of the document have been signed by Michael Rodgers as Team Leader, dated 4 December 2009. [195] As with the CSLSP, at paragraph 3.2, under the heading, “Traffic Management Control”, the CSSSP provided in respect of “Pedestrian Traffic”, “Provide a safe and clearly defined pedestrian path past the work site.” In respect of “Daily Traffic Management Checks” the document stated, “Refer to BCC Roadwork Signage Guide (ALL SIGNS MUST BE RETRO REFLECTIVE).” [196] Appendix 15 to the CSSSP is headed, “Construction Group Traffic Management Plan”. It contains a document titled, “Signals Site Inspection & Plan Checklist – Electrical/Civil.” The checklist (uncompleted) asks at question 1, “Is Pedestrian or Vehicle traffic affected?” and contains a series of specific prompts for which a “yes/no” tick is required. If pedestrian traffic is affected, the specific prompts include, “Signs/barriers erected”. [197] Mr Rodgers was asked about the CSSSP in cross-examination. He agreed that on the first page of the document he was noted as the Team Leader for the project and that the document was in respect of the cathodic protection works that he and his work -- 68 of 97 -- 69 crew had carried out. He agreed he had completed and signed the “Induction Prompt List” in the document, dated 4 December 2009. He agreed the list was a reminder to ensure that all of the ticked items were done, or would be done, at the work site. He further agreed that items he had ticked under a heading, “Specific attention is drawn to the following site safety issues” were, “Be aware of local vehicles inside and outside of site, as well as pedestrian traffic” and “Must comply with Site Construction Safety Plan and attended all Toolbox Meetings.” He agreed that the overall “Construction Safety Plan” comprised the CSLSP, the PMP and the CSSSP. [198] Mr Rodgers further agreed that he had signed, and dated 4 December 2009, the “Project Responsibilities and Accountabilities” section of the document as the Team Leader. He agreed that by doing so he acknowledged that he was responsible for implementing the provisions of the Construction Safety Plan. When asked about the use of signs noted within the “Site Safety Information” section, Mr Rodgers agreed that the document stated, “All job approaches shall have the minimum number of signs in accordance with Council’s roadwork signage guide”, however he was unable to now recall what the guide said, but presumed he would have known back then at the time of the incident. He nevertheless agreed that one of the things he understood from the document was that if he was creating a hazard on a footpath that he needed to put some signs up. He further agreed that he was required to have signs delineating a safe passage around the works during the night-time, however he could not recall whether there were any signs put up. [199] When asked about the “Site Inspection Checklist” at Appendix A5 to the document, Mr Rodgers was unable to say whether he had ticked the spreadsheet as indicated. He nevertheless agreed each day of the row, “Site Safety Signage displayed correctly” had been ticked for two weeks. He agreed if signs had not been displayed then it would have been incorrect to tick that box. He agreed that the row, “Barriers and barricading in place and effective where required”, had also been ticked for every day but could not recall who had done that. [200] The next document is an internal BCC policy document titled, “WH&S410 Construction Work Procedures”. It appears to be a generic work safety guide or instruction for all work performed at a workplace where construction is undertaken by BCC employees, consultants or contractor. At point 10, “Barricades”, the -- 69 of 97 -- 70 document states, “Barricades or hoardings must be erected around hazardous areas of a worksite to prevent entry by unauthorised persons (i.e. members of the public)” and provides that a “barricade” is a “self-supporting fence or a self-supporting series of continuous plastic, concrete or other sold barriers, usually temporary, erected or placed to restrict the entry of persons, to a workplace.” Examples of barricades included “steel pickets joined by taut plastic webbing commonly known as para- webbing.” [201] Another related guide is the BCC’s “Pathway Barricading Procedure”. The document bears the date, 7 January 2010, at the foot of the first page and later states a creation date of May 2010. As I understand it, the document is a revised work instruction produced by the BCC after it had conducted its own investigation into the incident involving Mr Dennison. The document sets out the “minimum requirements for barricading a worksite on a pathway” and notes the procedure to be used when work, involving excavations or the use of plant, is undertaken on a footpath or cycleway, to prevent public access to hazardous areas. It states that a “worksite” is “a site where work is being or is in the process of being undertaken, which may be attended or unattended.” The prescribed procedure notes that barricading shall remain in place until the work has been completed and all site hazards removed; that all plant, materials and other hazards associated with the worksite shall be contained within the barrier area; that where a partial pathway closure was required, “the flow of pedestrians and bicycles is to be preserved as far as practicable and the route for pedestrians kept clear”; and that barricades were to be set up for partial closures as shown in an attached diagram at Appendix 2. [202] The Appendix 2 diagram shows that a barricade, comprised of barrier mesh, supported by road dogs, was to be used. It also shows that a sign with the word “Pedestrians” and an arrow pointing and directing around the side of the barricade is to be placed at the front of the barricade. Elsewhere, at point 5.3 titled “Signage”, the document notes that "PEDESTRIANS (arrow)" signs shall be used at work sites where it is necessary to direct pedestrians via a particular path and that a "PEDESTRIANS WATCH YOUR/STEP" sign should be used where the route for pedestrians could be hazardous because of roughness, level differences, loose or other surface materials. The document further states, “Supervisors are to ensure signs and -- 70 of 97 -- 71 devices are securely mounted readily visible to and are not a hazard to pathway users.” The style and dimension of the required signs is as per the MUTCD. [203] With respect to point 5.4 ,“Unattended Worksites”, the document further notes: “Where any worksite is left unattended, the hazardous area shall be barricaded and pedestrian signs remain in place. At night the barricade shall be lit with a battery operated flashing yellow lamp at each corner.” [204] The document provides that the type of barrier to be erected around a worksite will be selected using the “Barricade Matrix” as set out in Appendix 1. The prescribed “barrier mesh standards” is stated as: “1m flexible orange mesh is to be taut and secured to supports (or existing fixed structure such as a fence). Traffic cones are to be secured at each corner.” [205] The final document to note is the Brisbane City Works’, “Safe Works on Roadways, IMSWI-02080” (SWR) The version in evidence was last revised on 29 July 2009. Under the introductory “Scope” heading, the SWR states: “The purpose of this Instruction is to provide a supplement to the BCW Roadwork Signing Guide…It does not replace the Guide but highlights some of the more important aspects for working safely on roads and footpaths.” [206] In section 6, “Implementation of the Plan”, the SWR provides that a risk assessment is to be conducted on the day and the controls employed are to be recorded. It then states: …at point 6.2, “Signs”: a. Signs and devices must provide sufficient advance warning and allow adequate time for a correct response under the worst anticipated conditions. All approaches to the work area must be considered. b. Signs must be erected in the following sequence: -- 71 of 97 -- 72 • Advance warning signs • Other warning signs • Instruction signs c. Signs should be erected to face the approaching traffic at approximate right angles to the driver’s line-of-sight. d. Hessian should not be used to cover signs, as headlights can pick up reflective detail through the hessian at night. Signs that are no longer required must be removed. …at point 6.4, “Pedestrians”: a. Safe pedestrian access must be maintained at all times during the work and after-hours. b. Appropriate signs, warning lamps and illumination must be provided. c. A well-defined walkway with a smooth walking surface should be provided, day & night. d. Trenches should be covered and barricaded/fenced if left overnight, depending on the risk. …at point 6.5, “Maintenance and Checking of Devices and Signs”: a. Signs and barriers must be checked periodically throughout the day to ensure that they have not been impacted, vandalised or stolen. b. Signs must be checked regularly to ensure that they are still visible in the prevailing conditions (for example, under setting sun etc). -- 72 of 97 -- 73 Mr Harris’ evidence [207] Mr Harris gave evidence that the main areas of the standards and guidelines relevant to the incident were those dealing with planning and risk assessment, warning/delineation/visibility/visual cues, and devices used. [208] With respect to risk assessment, he noted in his report that that the MUTCD in particular required practitioners to undertake a risk assessment process, which generally included steps of identification of hazards, assessment of risks, control of risks and review of hazards and control measures employed. He cited the terms of paragraph 2.2.3, “Risk management”. [209] With respect to warning/delineation/visibility/visual cues, Mr Harris noted that various documents highlighted the need for delineation on the approach to and past a work area, under all reasonably expected weather and atmospheric conditions, day and night; and that that signs and devices should command attention and should be located to give adequate time for response. He specifically noted that the standards within the MUTCD section 2.4.2 on “Delineation” were equally applicable to footpaths. [210] As for devices, Mr Harris noted that sections of the MUTCD and other standards, about ensuring that devices do not become possible hazards, had led to capping of steel star pickets, and later on to the substitution of other devices, such as wooden stakes or rubber supports. He noted that the height of the road dogs used by the BCC here was “well within the typical adult bicycle user envelope”. [211] Mr Harris expressed the following opinion in his report about the adequacy of the BCC barricade set-up: “There was no warning, there was some visibility due to lighting but only a small amount of retro-reflectivity via the small size traffic cones. There were no signs at the work zone. These aspects contravene the external and internal guidelines and planning documents. The steel stakes (‘road dogs’) are quite clearly potential hazards to path users, especially cyclists.” [212] Mr Harris stated that the typical orange mesh fencing used as a barricade on paths was not a retro-reflective material, whereby light from a bike light or car headlight -- 73 of 97 -- 74 would bounce back to the source with minimal scattering. He noted that in the context of a path, retro-reflective devices are important and commonly used to identify obstructions/hazards. He further stated that the orange colour of the mesh fence contrasts with many road areas such as pavements and landscaping, however, the core purpose of such a device is fundamentally as a “fence”, not a delineation device. He observed that the MUTCD provides that a device such as a mesh fence is used to “discourage access to the whole portion of the work area”. Mr Harris stated that in his experience, mesh fencing tends to be used as a longer-term treatment (days or weeks, not up to 24 hours), mostly used off the travelled way, and mostly used to restrict pedestrian access to works. [213] In terms of general industry practices, Mr Harris stated that site-specific practices can vary, with variation and adaptation required to ensure that sites are suitable in their context. He observed that such variation and adaptation was required less when the generic traffic plan is setting a particularly high standard and is being followed. On the other hand, however, where the generic traffic plan was not setting a particularly high standard, and/or, was not being followed, then any deviations to it should be based on a careful assessment of site-specific risk factors, ideally with notes taken to act as a reminder of the changes at a future date. He observed that with all short and long-term traffic management, generally, the elements of cost, time, exposure, and risk are weighed up due to competing demands. [214] Mr Harris further set out in his report various examples of “footpath treatments” of which he was “highly confident” were available in 2009. The various examples were illustrated by photographs showing a range of work site set-ups, employing various combinations of devices, signs and barriers, including advance warning signs and road/path closure signs. In my view, most of these examples provide little assistance in the specific circumstances of the present case. Whilst Mr Harris provided some detail and explanation in his oral evidence about the examples shown on pages 88 and 89 of his report, the examples generally did not contain any details of the site locations, authorities or entities undertaking the work, the functions being performed, or any other circumstances in which the particular treatment was employed. [215] In terms of the standard practices employed by the BCC in 2009 for similar works, Mr Harris stated he could not say whether “mesh-only” or “mesh with bollards” was -- 74 of 97 -- 75 standard practice for barricading this type of work area at the time. As to the BCC’s compliance with relevant standards, principles and practices, Mr Harris stated: “It’s difficult to understand…whether there are any site-specific plans for the setup on Zillmere Road. From what I can discern, the documents with names like ‘Construction Plan, Safety Plan, Risk Assessment’, all seem to be generic. …I believe they were probably working more to understood protocols of ‘mesh fencing + bollards + a sign’, and that the team leader exercised discretion day-to-day as to whether to implement signage, with the default position being to not install signs.” [216] In conclusion, Mr Harris stated: “The use of mesh and ‘strong posts’ (road dogs) appears to me to be entirely an issue of cost / convenience for the works (i.e. to prevent unwanted damage prior to concrete curing). The objective has very little to do with public safety. The uncured concrete is a negligeable risk to the public (there is no excavation). This places a high burden on the party creating the obstruction, to make the devices and area safe. In my view, this barricade setup is a highly ‘defensive’ site, with maximum priority towards the security of the work zone, probably unjustifiably, and, minimal waring [sic. warning] and guidance to road users. This setup type of using: road dogs and two small-sized traffic cones with no other signs or retro-reflective devices might be suitable in short-term very low volume conditions on low-volume local road paths, with good approach sight distance where there is safe and obvious passage around, and no other obvious risk factors. However, based on the standards and guidelines and normal practices of assessing risk at a site-specific level, I do not believe that this setup, with a very small amount of delineation and no signs, was fit for purpose / commensurate with the risks posed.” -- 75 of 97 -- 76 [217] I observe here that Mr Harris’ assumption that there were two traffic cones in place is based on the fact that the two witches hats later placed by Mr Coombs after the incident were shown in some of the photographs taken on 18 December. [218] Mr Harris opined that suitable treatment options that could have been used by the BCC included: (i) Providing an advanced warning sign. If there was a concern about theft, chain a sign to the fence or power pole, or install a corflute to sign to a power pole via cable-tie, or to the ground via stakes; (ii) Providing improved warning at the obstruction; (iii) Providing a suitable surface for the route around the work site; (iv) Replacing road dogs with a more forgiving device such as timber stakes. [219] When cross-examined, Mr Harris agreed that as a general proposition any standard or guideline was simply a guide for those who are required to make decisions with respect to traffic or pedestrian control, having regard to the particular circumstances of a particular scene. He agreed that as a general proposition they were not prescriptive, adding that ultimately road design and traffic management standards were not even prescribed by legislation, rather “…the industry works to standards and guides in practice.” When asked whether different authorities might do different things, Mr Harris agreed that was the case, not only between councils but also between service authorities, and that it was “highly varied”. [220] Mr Harris confirmed his opinion was that, according to the relevant standards and guides he had cited, something more was required by way of delineation on the approach to and past a work area in this case. When asked if he also maintained that there should also have been something by way of signage, he said, “…it’s not necessarily the case. It would’ve assisted. Yes. That would’ve been helpful.” [221] When asked to assume that council had delineated the worksite by placing four witches hats, one at each corner of the barrier, Mr Harris said, “…for this type of site. It’s an improvement to just the para-web because it adds some form of – um appropriate night delineation. So yes, it’s – it’s definitely a – a better-than-nothing – -- 76 of 97 -- 77 um – approach.” He agreed that such actions “would go some distance” to changing his view about the appropriateness of the delineation but said that his opinion would most likely remain that more should have been done. He said, “par for the course” would be to have something a little more than that, such as a retroreflective advance sign, placed about 30 to 60 metres before, or a stronger 600mm x 600mm corflute sign stitched onto the para-web. He said either would be the minimum required for a site of this type. He reiterated that one of his other concerns about the barricade set- up used in this case was the use of the road-dogs, however he conceded it was a “secondary matter”. Consideration [222] The evidence demonstrates that the BCC failed to comply with relevant standards, guidelines and its own internal policies in several respects. In particular, I am satisfied that it failed to do each of the following: (a) It did not conduct any, or any proper, risk assessment with respect to the barricading of work sites generally, or with respect to the barricading of the particular work site in this instance, where it was to be left unattended overnight whilst the works were unfinished (cf. MUTCDQ, paragraph 2.2.3; CSLSP; PMP, section 11); (b) It did not delineate an alternative path around the work site for pedestrians (cf. MUTCDQ, paragraphs 2.3.7, 3.9.1; CSLSPP, section 9.5; CSSSP, paragraph 3.2) (c) It did not place any warning signs on or before the barricade to warn of the hazard (cf. MUTCDQ, paragraph 2.4.1; CSLSP, point 6.2, “Traffic Control for Motor and Pedestrian Traffic”; CSSSP, “Site Safety Information”; SWR, points 6.2, 6.3, 6.4); and (d) It did not use retroreflective devices and signs (cf. MUTCDQ, paragraph 2.4.3). [223] Whilst I am satisfied of these deficiencies on the part of the BCC, it remains to consider whether the extent of its failings, in the context of the other circumstances of the case, is such that the proviso in s 36(2) of the CLA is satisfied. Unless I positively reach that conclusion, s 36 will operate to preclude BCC’s liability. -- 77 of 97 -- 78 [224] In Rodriguez the Court noted that in a claim based on negligence, s 36(2) of the CLA set the standard to be applied by the Court in determining whether there had been a breach of the authority’s duty of care. The Court relevantly stated: 30 “…the distinction between the general approach to breach of duty under s 9 of the Civil Liability Act and that applicable to a public authority to which s 36 applies may be identified as follows: under s 9 it is for the court to determine whether, on the evidence before it, it is satisfied that the defendant failed to take precautions against a risk of harm which a reasonable person in its position would have taken; under s 36, the court must be satisfied that the authority, acting on its understanding of the relevant circumstances and applicable law, adopted an approach to the exercise of its functions which fell outside the range of reasonably available options.”31 [225] Whilst observing that the statutory language should not be paraphrased or substituted with other words, the Court noted that it was possible to clarify the context in which the unreasonableness standard in s 36(2) would be applied. To further illustrate the point that a lack of reasonable care does not demonstrate liability where s 36(2) is engaged, the Court stated:32 “…where a person suffers injury caused by the conduct of another, it may appear on the evidence that the impugned conduct falls into one of the following categories, viewed prospectively: 1. conduct which was the preferred or correct course although harm may have been foreseeable; 2. conduct which was not unreasonable, although it involved an error of judgment and some would have avoided it; 3. conduct which, in the Court’s view, a reasonable person taking appropriate precautions would not have done, and 30 Rodriguez, [134]. 31 Ibid, [134]. 32 Ibid, [137]. -- 78 of 97 -- 79 4. the exercise of a power which is so unreasonable that the Court cannot envisage any person in that position considering it to be a reasonable exercise of the power.” [226] The Court concluded these categories reflected a scale of increasing culpability, with categories 1 and 2 not engaging tortious liability for negligence in accordance with s 9 of the CLA; category 3 engaging liability under s 9; but only category 4 engaging liability under s 36(2) of the CLA.33 [227] Noting again that there is an absence of Queensland authority on s 36 of the CLA, it is instructive to consider what has also been said in some of the cases that have dealt with the Wednesbury unreasonableness standard imposed under the cognate provision in s 43A of the Civil Liability Act 2002 (NSW). [228] Whilst s 43A is not expressed in precisely the same terms as s 36 of the CLA, it nevertheless is a provision designed to limit the liability of a public authority, subject to the same type of proviso that appears in s 36(2) of the CLA, the existence of which is similarly a matter of objective determination. Section 43A relevantly states: “43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power— (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could 33 Ibid, [139]. -- 79 of 97 -- 80 properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. ….” [229] In Allianz Australia Insurance Limited v Roads and Traffic Authority,34 the Court acknowledged the difficulty in transposing the public law concept of Wednesbury unreasonableness to the private law of reasonable response to foreseeable risk of injury.35 Nevertheless, it held that the words “could properly consider” in s 43A (and also in s 43) required a determination to be made from the perspective of the authority, but with an objective element.36 After assaying various authorities, the Court noted that many explanations of Wednesbury unreasonableness can be found, with fluctuating stringency;37 but nonetheless observed that a constant is that Wednesbury unreasonableness must be at a high level.38 The Court further cautioned against substituting the concept of “irrationality” for the language of s 43A (as the trial judge had done in that case). [230] In Curtis v Harden Shire Council,39 after noting similar difficulties with adopting the Wednesdbury standard in the context of tort liability, Bathurst CJ noted, in respect of s 43A:40 “It does not, in these circumstances, seem to be necessary to paraphrase the section by reference to cases derived from the administrative law area, although the manner in which courts have approached the question in these cases may inform consideration of the application of s 43A of the Act. It is sufficient to say that what is important is that the standard is set by what a holder of the statutory power could properly consider reasonable. 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. This is 34 (2010) 57 MVR 80; [2010] NSWCA 328 (Giles JA, McColl JA and Sackville AJA agreeing). 35 Ibid, [77]. 36 Ibid, [79], approved in Collins v Clarence Valley Council (2015) 91 NSWLR 128, [177]. 37 Ibid, [82]. 38 Ibid, [87]. 39 (2014) 88 NSWLR 10 (Curtis). 40 Ibid, [6]. -- 80 of 97 -- 81 so even if the Court considering the matter independently of the section would have concluded there was a failure to fulfil the duty.” [231] In the same case, Basten JA (with whom Beazley P agreed) stated in respect of the relevant test in s 43A(3):41 “The final clause sets a standard. The standard is an act or omission that is “so unreasonable” that no authority could “properly consider the act or omission to be reasonable”. This is a curious form of expression: it is not that the act be so unreasonable that no reasonable authority could do the act, but it may perhaps be assumed that the reference to “no authority” is a reference to “no authority acting reasonably”. That conclusion is supported by the reference to an authority which “could properly consider” the act to be reasonable. That reading should be accepted. The other awkwardness of expression is that the court is required to consider not whether it considers the act (to paraphrase) grossly unreasonable, but rather whether no authority properly considering the matter could consider it to be reasonable. This test has two aspects. First, the identification of the body to be satisfied as to the proper characterisation of the act or omission is not the court but another public authority. That is, it is like the test of apprehended bias in administrative law, which asks not whether the court might think that the decision-maker might not bring a fair and unbiased mind to the task, but whether a fair-minded lay observer might think that the decision-maker might not bring such a mind to the task. With apprehended bias, the identification of the holder of the opinion is understandable; with liability in tort, it is less clear. It means that the court must view the matter through the eyes of a responsible public authority, having particular expertise and functions… The second aspect of the statutory language is that the state of mind of the authority is not identified as one which it would or should hold, but 41 Ibid, [277]-[279]. -- 81 of 97 -- 82 rather one which no authority could hold. In other words, it envisages a range of opinions as to what might constitute a reasonable act or reasonable failure to act, but asks if no public authority properly considering the issue could place it within that range. [232] In Collins v Clarence Valley Council,42McColl JA (Macfarlan JA and Emmett AJ agreeing) stated:43 “The question whether s 43A(3) is satisfied is a determination to be made from the perspective of the authority, but with an objective element. The plaintiff must establish that no authority acting reasonably having the special statutory power in question 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.” [233] In Roads and Maritime Services v Grant,44Basten JA considered the application of s 43A in a case where the plaintiff motorcyclist suffered catastrophic injuries when he crashed on a median strip. The plaintiff had alleged the road authority had breached its duty of care in its design and construction of the roadway by failing to erect a warning sign ahead of the median strip. In concluding that s 43A was engaged and exempted the road authority from liability, Basten JA stated:45 “…There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond 42 (2015) 91 NSWLR 128. 43 Ibid, [177]. 44 (2015) 70 MVR 520. 45 Ibid, [35]-[37]. -- 82 of 97 -- 83 which a person (such as an authority) having necessary expertise in traffic engineering would not step. Secondly, the test is formulated in the negative…it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, “so unreasonable that no authority …”. Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed…” [234] More recently, in Hunt Leather Pty Ltd v Transport for NSW,46 Gordon and Edelman JJ observed:47 “Section 43A is only loosely described as a “defence” in the sense that a defendant must plead the facts that engage the operation of s 43A. Once s 43A is engaged, it operates to transform the plaintiff's cause of action into one that requires proof of the heightened standard of unreasonableness described in s 43A(3) before the plaintiff can establish liability based upon the exercise of (or failure to exercise) the special statutory power.” [235] Having regard to the statutory language and evident purpose of s 36 of the CLA, the observations made in Rodriguez, and what has been said about the similar Wednesbury unreasonableness standard expressed in s 43A of the New South Wales Civil Liability Act, I approach the operation of s 36 on the following basis: 46 [2025] HCA 53 47 Ibid, [141]. -- 83 of 97 -- 84 (1) Where s 36 is engaged, s 36(2) of the CLA sets the standard to be applied by the Court in determining whether there had been a breach of the authority’s duty of care; (2) The plaintiff bears the onus of establishing the proviso in s 36(2); (3) The evident purpose of the proviso is to restrict the circumstances in which a public or other authority will be liable. The “Wednesdbury unreasonableness standard imposes a high threshold; (4) Although the relevant standard in the proviso is expressed in terms of Wednesdbury unreasonableness, it is the words of the statutory language that must be applied, without substitution or paraphrase; (5) The words “could properly” require a determination to be made from the perspective of the authority, but with an objective element; (6) The Court must view the matter through the eyes of a responsible public authority, having particular expertise and functions; (7) The statutory language envisages a range of options as to what might constitute a reasonable exercise of a function or a reasonable failure to exercise a function, but asks if no authority properly considering the issue of whether, or how, to exercise the function in question could place it within that range; (8) It is only where the relevant act or omission of the authority falls outside the range of conduct that an authority with like functions could properly consider to be a reasonable exercise of the function in question that the proviso will be established; and (9) The Court must be satisfied that the authority’s act or omission said to constitute the wrongful exercise or a failure to exercise a function was so unreasonable that the Court cannot envisage any person in that position considering it to be a reasonable exercise of the power. [236] On my assessment of the evidence, the BCC’s use of the orange mesh with supporting uncapped steel road-dogs appears to have been consistent with its own work practices, -- 84 of 97 -- 85 procedures and its own “WH&S410 Construction Work Procedures” work instruction document. It also seems to be generally consistent with industry practice. [237] Although Mr Dennison relied upon Mr Harris’ evidence with respect to BCC’s conduct and its non-compliance with standards, guidelines and internal policies, he did not adduce any evidence as to what a reasonable council would have done, or what it could properly have considered, in the circumstances. [238] It may be accepted that the various relevant standards and guidelines identified by Mr Harris provide guidance as to what should be done by a public authority when undertaking footpath works. It may also be accepted that the purposes of such standards and guidelines are to promote and achieve quality, safety and consistency in the design, construction and maintenance of public facilities. The same may be said of the BCC internal policy documents. In addition, the purpose of those documents is also to ensure work is undertaken with a proper appreciation of the risk of harm to workers and the public, so that effective measures are employed to eliminate or minimise such safety risks. The documents are relevant to determining not only whether, according to s 9 of the CLA, the BCC would have breached the duty of care that it owed on this occasion, but also whether its exercise of its functions with respect to the footpath works was so unreasonable that no other public authority with like functions could properly have considered it to be a reasonable exercise of those functions. [239] Whilst Mr Harris suggested several treatment options that the BCC could have employed to discharge its duty, he ultimately identified the absence of a retroreflective warning sign, either in the form of an advance warning sign before the barricade or a sign affixed to the barricade, as the essential omission on the part of the BCC. The use of such signage was variously recommended or required in some instances by the relevant standards, guidelines and BCC’s own internal policy documents. He did not suggest that additional lighting sources or traffic lamps were required. [240] The determination of whether Mr Dennison has established the proviso in s 36(2) does not turn solely upon whether the BCC departed from applicable standards, guidelines or internal policies. The focus must remain upon the acts or omissions of the public authority but considered in the context of a departure from the standards, -- 85 of 97 -- 86 procedures or instructions it has previously determined and adopted as applicable for the safe performance of the functions in question. [241] As the Court stated in Rodriguez,48 where it was alleged that the authority had failed follow flood mitigation strategies set out in its “Flood Operations Manual”: “… the fact that the relevant acts and omissions may have involved a departure from the Manual, even in a serious way, does not of itself entail breach of the standard in s 36(2). We do not accept that a mere breach of the Manual has that consequence. Indeed, breach of the Manual may not entail a breach of the standard of care under s 9. In any event, for the reasons earlier given, it is necessary to apply the language of the statute.” [242] Ultimately, I am not satisfied that the way BCC exercised its functions here was so unreasonable that the test in s 36(2) is satisfied. In particular, I do not consider its failure to provide one of the two suggested kinds of retroreflective warning sign was so unreasonable in the circumstances that no other public authority could properly have considered it to be a reasonable exercise of its functions with respect to the footpath works. Despite the existence of the standards, guidelines and internal policy documents recommending or requiring such signs to be displayed, the decision whether to erect such a sign remained a matter for the exercise of judgement. The documents did not prescribe mandatory actions that must be taken in every case without regard to the prevailing circumstances. Although it is easy to criticise Mr Rodgers’ judgement in hindsight, I am unable to conclude that his decision to set up the barricade in the way that was done, without placing a warning sign to alert pedestrians and cyclists of the barricade hazard, shows that BCC’s conduct was so unreasonable no other public authority could properly have considered it to be a reasonable exercise of its functions with respect to the footpath works. [243] I am of the same opinion in relation to the BCC failings to conduct a risk assessment; to check the streetlight functionality and lighting levels in the area at night; to provide additional lighting; and to provide additional delineation at and around the barricade. Again, I consider these to be matters of judgement and I am not satisfied that what 48 at [650]. -- 86 of 97 -- 87 Mr Rodgers did, or did not do, on behalf of the BCC was so unreasonable that no public authority with like functions could properly consider it to be a reasonable exercise of those functions. In particular, I am not satisfied that the failure to check lighting levels or install additional lighting, based on Mr Rodgers’ assumption that there would be sufficient lighting from nearby sources, demonstrates that the BCC’s acts or omissions were so unreasonable that no public authority with like functions could properly have considered them to be a reasonable performance of its functions. Whilst these various additions may have been optimal or preferable their absence does not establish that the way the BCC exercised its functions falls outside the range of options as to what could properly be considered to be a reasonable exercise of those functions. Causation [244] Because of the conclusions I have reached with respect to s 36 of the CLA, it follows that the BCC is not liable. Nevertheless, I will briefly address the issue of causation on the assumptions that either s 36 does not apply or, if it does, it would not operate to defeat Mr Dennison’s claim. [245] The general principles in s 11 of the CLA apply. The relevant issue here is whether factual causation has been established. In accordance with s 11(1)(a), that requires proof that the alleged breach of duty was a necessary condition of the occurrence of the harm suffered by Mr Dennison. That is a statutory statement of the “but for” test of causation at common law.49 Under s 12 of the CLA, Mr Dennison bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. [246] I would have been satisfied on the balance of probabilities that BCC’s breach of its duty was a necessary condition of the occurrence of the harm suffered by Mr Dennison. But for its failings with respect to the barricade set-up, Mr Dennison would not have collided with the barricade and would not have crashed and fallen onto the road dog which caused the penetrating injury to his left eye and cranial cavity. It is more probable than not that sequence of events would have been averted if the BCC had done the things which I have found it was obliged to do to avoid the occurrence of a foreseeable risk of injury to a cyclist using the footpath. The taking of those 49 Strong v Woolworths Limited (2012) 246 CLR 182, 190, [18]; The Corporation of the Synod of the Diocese of Brisbane v Greenway [2018] 1 Qd R 344, [37]-[38]. -- 87 of 97 -- 88 precautions would have ensured that a cyclist was warned of the hazard ahead, that the barricade was visible at night, and that a safe path around the barricade was provided and directed. Conclusion as to liability [247] 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. [248] 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. [249] Accordingly, there will be judgment for the defendant. QUANTUM [250] I will notionally assess the damages that I would have awarded had I found the BCC liable. General Damages [251] Chapter 3 of the CLA governs an award of general damages. Section 61 of the CLA requires the Court to assess an “injury scale value” (ISV) on a scale from 0 to 100, from a case in which an injury is not severe enough to justify any award of general damages (0) to a case in which an injury is of the gravest conceivable kind (100). The Court must assess the ISV under the rules provided by the Civil Liability Regulation (CLR).50 Section 7 and Schedules 3 to 6 of the CLR provide the relevant rules. Schedule 4 sets the relevant ISV ranges. Schedule 3 provides that where there are multiple injuries, the Court must consider the range of ISVs for the dominant injury of the multiple injuries. Where the Court considers that the maximum dominant injury ISV is inadequate, the Court may make a higher assessment of the ISV. Any such increase should rarely be more than 25%. The extent of whole person impairment 50 The original CLR was the Civil Liability Regulation 2003. It was repealed by the Civil Liability Regulation 2014, which commenced on 1 July 2014. By the transitional provision in s 11 of the 2014 CLR, subject to ss 6, 8 and 9, the repealed 2003 regulation continued to apply to injuries arising before the commencement of the 2014 CLR. I note the 2014 CLR has now since been replaced by the Civil Liability Regulation 2025. -- 88 of 97 -- 89 (WPI) is an important consideration, but not the only consideration, affecting the assessment of an ISV. [252] Under 62 of the CLA the Court must calculate general damages according to the sum of the “base amount” and the “variable amount” for the ISV for the injury for the period within which the injury arose. Pursuant to s 8 of the CLR, Schedule 7 of the CLR contains the relevant prescribed general damages calculation provisions for an injury arising on or after 2 December 2002 to, and including, 30 June 2010. [253] Mr Dennison claims he sustained multiple injuries, including a penetrating wound of the left orbit, cranial cavity and frontal lobe; fractures; loss of his left eye; an ABI; seizures and convulsions; psychological injury and a loss of balance and gait. These are all established by the medical evidence. His ABI is the dominant injury. His eye injury was very serious and his subsequent impairments on account of the loss of his eye are substantial. He submits that the ISV range in Item 7 of Schedule 4 (Moderate brain injury), with an ISV range of 21 to 55, is inadequate to reflect the level of adverse impact upon him occasioned by his multiple injuries. [254] By reference to Schedule 4, Item 7 (Moderate brain injury) for an ISV of 55, uplifted by 25% for multiple injuries to give an ISV of 69, Mr Dennison claims $147,860 by way of general damages. [255] Relying principally upon the evidence of Dr Saines, neurologist, the BCC submits that Mr Dennison’s brain injury falls within the lower range of the Item 7 ISV range and that an ISV assessment of 38 would be appropriate to account for all injuries, resulting in $63,200 for general damages. [256] I have considered the medical evidence, including the reports and oral evidence provided by Dr Saines and by Dr Mark Paine, neurologist. It is not necessary to provide a detailed summary of all the medical evidence. However, I note the following points. [257] Associate Professor Brian Chambers was the first neurologist to see Mr Dennison. He assessed him on 15 July 2011 and provided a report dated 1 August 2011. He did not give evidence at trial. His report was tendered on behalf of Mr Dennison on limited bases: it provided a “point in time” record of the history provided at the examination at that time; and it was later referred to by both Dr Saines and Dr Paine. -- 89 of 97 -- 90 Amongst other things, Professor Chambers considered Mr Dennison had sustained severe traumatic injuries to his left eye and brain and had been left with neurological impairments, complicated by the development of post-traumatic epilepsy. He assessed Mr Dennison’s WPI as 45%. [258] Dr Saines then first saw Mr Dennison on 23 November 2011. In his report of 2 December 2011, he considered that Mr Dennison had made a reasonably good recovery after a prolonged period of hospitalisation and rehabilitation; that there was clinical evidence of mild brain injury; and that he had developed epilepsy secondary to his ABI, which was controlled by medication. He assessed Mr Dennison’s WPI as 40%, of which 24% was attributed to loss of his left eye and 5% for impairment of mental status. He considered Mr Dennison’s condition was stable and that there should not be any further deterioration. [259] Mr Martin Jackson, clinical neuropsychologist, saw Mr Dennison on 9 July 2013 and provided a report dated 6 September 2013. He noted that Mr Dennison reported issues with his short-term memory; some difficulties with organisation and planning; and that he would exhibit anger and frustration at times. He considered the majority of Mr Dennison’s executive skills were below his pre-morbid level of functioning, albeit within the average range. He noted Mr Dennison’s major difficulties were in the areas of processing speed, attention and complex new learning. Overall, he thought there was evidence of considerable impairment in processing speed, high level attention, executive skills, working memory and new learning and new memory that were consistent with having sustained a severe traumatic brain injury. He was not surprised that Mr Dennison had exhibited a change in personality as the penetrating injury caused substantial damage to the basal areas of his frontal lobe, which is an area of the brain that is very important in controlling behaviour. [260] As a result of subsequent changes in his behaviour and apparent cognitive decline, of which Mrs Dennison gave evidence at trial, Mr Dennison was later referred to a geriatrician. On 4 August 2021, Dr Gangardharan provided a report in which he opined that Mr Dennison had frontotemporal dementia, secondary to his head injury involving the left frontal lobe. [261] In a subsequent report of 9 November 2022, Dr Saines noted that Mr Dennison’s condition had worsened, mainly in respect of his mental status, station and gait; that -- 90 of 97 -- 91 his memory was now much worse; that he was experiencing behavioural issues; and noted that as a result he had been referred to the geriatrician who had diagnosed likely frontotemporal dementia. Dr Saines considered there had been a substantial worsening of Mr Dennison’s cognitive functioning, balance and gait, likely due to his dementia. He did not consider that to be the result of the initial brain injury. [262] Dr Paine first saw Mr Dennison on 3 May 2022. In his first report of 25 May 2022, he considered that Mr Dennison’s sustained a traumatic brain injury as a result of a severe left orbital penetrating traumatic injury; that his brain injury had resulted in a neurocognitive disorder with impaired memory, executive dysfunction with behavioural impairment and personality change; that he had impaired balance and was a falls risk as a consequence of his injury; and that he developed post traumatic epilepsy with seizures, which was seemingly well controlled with appropriate anti- seizure medication. He noted that there was a suggestion of an additional acquired cognitive decline unrelated to the injury, possibly explained by aging and additional degenerative brain pathology. He considered Mr Dennison’s WPI included 15% for cognitive disorder, 15% for frontal executive dysfunction, 10% for post-traumatic epilepsy, 10% for balance/gait disorder, 10% for cosmetic orbital deformity and that he had 28% vision impairment. [263] A signed file note of a 23 March 2023 conference between Mr Dennison’s lawyers and Dr Paine recorded Dr Paine’s opinion that he suspected Mr Dennison’s dementia would be separate to the head trauma he suffered. Another signed file note of a more recent pre-trial conference with Mr Dennison’s lawyers on 7 October 2025 recorded Dr Paine’s opinion that, based on his 2022 assessment, Mr Dennison’s calculated WPI was 56%. [264] In a joint conclave report, dated 23 July 2025, both Dr Saines and Dr Paine agreed that Mr Dennison had suffered neurological decline related to a degenerative brain condition which developed in 2015, later diagnosed as frontotemporal dementia by Dr Gangardharan in 2021. Both agreed that his current neurological condition reflected a combination of his original brain injury and the subsequent degenerative brain disease; and that the degenerative brain condition was not caused or contributed to by the incident. Both considered the degenerative brain condition would progress -- 91 of 97 -- 92 in the future and Mr Denison’s life expectancy would be reduced as a result and would depend upon the rate of progression but might be within 2 years. [265] I have also considered Mrs Dennison’s evidence about the impacts her husband’s injuries have had upon him over time. Her evidence was that before the accident he was a very stoic man, although with a soft personality, and that he would never show anger or yell at someone, but that after the accident his personality changed. She stated that after the accident he suffered memory problems, mood disturbances and could be quite volatile at times; that he became increasingly more frustrated and angry as time went on; that he was prone to outbursts; that he had become distressed when the normal routine changed; that he had lost all initiative; that his speech, cognitive abilities and behaviours had changed since the accident; that he became more disinhibited and his sense of right or wrong seemed to be missing; and that he needed constant monitoring. She further described his increasing reliance and dependence upon her for many activities of daily living. She considered their relationship was no longer “normal” but was akin to “mother and child”. Over time the situation deteriorated, to the point where in December 2022 he entered full time residential care in an aged care facility. [266] I do not accept BCC’s submission that an ISV of 38 is appropriate. Whilst the BCC correctly noted that Dr Saines first saw Mr Dennison much closer in time to the incident than Dr Paine, and before there was any evidence of cognitive decline attributable to the emergence of his non-incident related dementia condition, at about the same time, Mr Jackson saw Mr Dennison and noted he had significant neuropsychological difficulties caused by the accident. On the other hand, I do not accept the submission made on behalf of Mr Dennison that an uplift of the ISV is required because the range is inadequate to reflect the adverse impacts of multiple injuries. [267] Having regard to the evidence, the CLR rules and the injury examples given Schedule 4, I am satisfied that the maximum ISV of 55 is appropriate, equating to general damages of $107,600. Past Care [268] The parties agree that past care was claimable up until 14 December 2022, when Mr Dennison entered the aged care facility. In light of the evidence at trial, Mr -- 92 of 97 -- 93 Dennison’s revised claim for damages for past care is $730,000, taking into account the subsuming of the need for care by the onset of dementia from 1 July 2021. The BCC submits there should be various reductions or discounts on what is claimed, resulting in an assessed amount of $420,633.57. [269] An award of damages for gratuitous services provided to an injured person is regulated by s 59 of the CLA. Subject to what follows, there is no dispute that the requirements of s 59 for an award of damages are satisfied here. [270] Part of the past care claim concerns emotional support provided by Mrs Dennison to her injured husband following his discharge from hospital. In an affidavit affirmed 15 September 2025, Mrs Dennison deposed that the amount of additional emotional support she provided to her husband was one hour on a “good day” and could be up to two hours on a “bad day”. In a table setting out a summary of care provided to her husband since the accident, Mrs Dennison claimed that after his discharge from hospital, from 20 March 2010 onwards, she has provided 7 hours per week of emotional support. [271] The BCC says the emotional support provided by Mrs Dennison is not a recognised compensable form of gratuitous care. Mr Dennison says that it is, particularly in a case such as this where the plaintiff has sustained a brain injury [272] There is no definition of “gratuitous care services” in the CLA. Whether such a service is compensable under s 59 is to be determined according to common law principles and the evidence adduced at trial. [273] I was referred to various cases in which the issue has been considered. What the cases show is where the evidence supports the conclusion that the injured person has a need for additional emotional support services resulting from their injury, damages for gratuitous past care have allowed amounts for services in the nature of “emotional support”. However, in cases where the evidence suggests that the emotional support was not needed and amounted to simply “being on call” or “being there” for the inured person, damages for gratuitous care invariably do not encompass any component of emotional support. [274] In cross-examination, Mrs Dennison agreed that the emotional support she was providing to her husband was providing him with some comfort. She explained that -- 93 of 97 -- 94 after the accident he got very volatile in his moods and had outbursts and that she would try to calm him down. She agreed that his outbursts increased over time. She accepted that in the first period of post-hospital discharge, from 20 Match 2010 to January 2011, that the emotional support she provided was not always her trying to calm her husband down from his frustration and anger outbursts. She agreed that what she was doing was more in the nature of being present, talking to him and keeping him company. She agreed that she was providing the same type of emotional support later on during the time they had relocated to Deloraine, Tasmania, between January 2011 and July 2017, although she said that as time went on his frustrations and anger got worse. She agreed thought that up until 2015 his outbursts were only periodic, and his behaviour was generally stable. She agreed that in about 2016 his mood deteriorated, and he became more angry and more frustrated. She further agreed that when they had returned from Deloraine to live at Mango Hill, between July 2017 to July 2020, that she continued to provide the same level of care to her husband, for the same reasons, albeit that his mood, behaviour, memory and balance were all getting worse. She confirmed that since her husband had been in full time care at the aged care facility that she has continued to provide emotional support to him. [275] I am satisfied that the evidence here does establish that after the accident Mr Dennison had some need for additional emotional support to help him to regulate his mood and deal with his frustration, anger and outbursts, due to evident changes in his personality and behaviour as a result of the accident. I accept that his needs in that respect increased over time. Initially it was periodic but as time went on it became more regular. I consider that this “emotional support” component of Mr Dennison’s claim for past gratuitous care services is properly compensable, however there ought to be some adjustment to reflect the fact that not all of the claimed 7 hours of emotional support each week was borne of need caused by the accident. [276] The BCC also submits that there should be further reduction or discounting of the past care claim on the basis that it includes tasks undertaken by Mrs Dennison for the joint benefit of herself and her husband, such as shopping, locking the home at bedtime, preparing meals and undertaking household chores and yard maintenance. The BCC says Mr Dennison does not have a need for these services arising out of the injuries he sustained, as required by s 59(1)(b) of the CLA. Alternatively, the BCC -- 94 of 97 -- 95 says that the benefit Mrs Dennison received must be taken into account in the assessment of damages, as required by s 59(3)(a) of the CLA. [277] Mrs Dennison’s evidence was that after his initial discharge from hospital, between 20 March 2010 and January 2011, the gratuitous care services she provided to her husband included 7 to 10 hours of meal preparation, 3 hours of domestic chores, 2 hours of shopping for groceries, 1 hour of home security and 1 hour of yard maintenance. Thereafter, with one exception, the number of hours for these tasks remained constant until Mr Dennison entered the aged care facility. The exception is that after January 2011, the meal preparation hours dropped to 7 hours per week and remained at that level until July 2020, when it reduced further to 5 hours when Mr Dennison began receiving in home care. [278] Mrs Dennison’s evidence on these points was as follows. Before the accident she and her husband would share the cooking meal preparation, but after the accident she alone did these tasks as Mr Dennison lacked capacity. Before the accident he would help equally with domestic chores but that after the accident, she did all the chores as he lost all initiative to assist. Further, because of his impaired spatial awareness and limited peripheral vision he would frequently spill liquids, which required additional cleaning. Before the accident he did all the yard work at the house, but after the accident he was only able to do the mowing and gardening, however by the time they returned from Tasmania he had ceased doing the yard work altogether. Whereas her husband had previously been very particular about home security, after the accident he was quite blasé about it and did not seem to understand security at all. There were instances where he would wake up and open the front door thinking someone was there when there was not. As a result, Mrs Dennison had to make sure everything was locked up before bedtime. Mrs Dennison agreed in cross-examination that she also benefited from providing each of these various services for her husband [279] Given the evidence adduced and Mrs Dennison’s concession that she also benefitted from doing the various tasks she described, I consider the total amounts claimed cannot be fully established. I accept that Mr Dennison had additional needs for the services as a result of the injuries he sustained in the accident, however not all of the services provided by Mrs Dennison arose solely out of the injuries sustained by Mr -- 95 of 97 -- 96 Dennison, or it is otherwise appropriate to offset the benefit that she also obtained from providing the services. [280] Adopting a broad approach to the matter, I consider it would be appropriate in the circumstances to reduce Mr Dennison’s claim for past gratuitous services provided by Mrs Dennison by about one-third. [281] Accordingly, I would award damages for past care in the sum of $482,000. Future Care [282] The parties agree that the amount for future care is $5,086.13, based on half an hour per week for eye care for 2 years at a rate of $102.75 per hour. Past special damages – Refunds [283] The parties agree the amount for refunds is $48,405.08. Past special damages – out of pocket expenses [284] The parties agree the amount for past special damages is $22,499.79 and the interest claimable on that sum at 2.2% for 15.83 years is $7,835.77. Future expenses [285] The parties agree on future expenses of $2,500 for pharmaceuticals, eye care solutions and attendance on an eye specialist. [286] On the basis of the foregoing, the damages that I would have awarded are summarised in the table below: Head of damage Amount General damages $107,600 Past care $482,000 Future care $5,086.13 Past special damages – Refunds $48,405.08 -- 96 of 97 -- 97 Head of damage Amount Past special damages – Out of pocket expenses $22,499.79 Interest on past special damages $7,835.77 Future expenses $2,500 TOTAL $675,926.77 CONCLUSION [287] For the reasons I have given, there will be judgment for the defendant. I will hear the parties further as to costs. -- 97 of 97 --