Increased risk of liability in negligence for public authorities: Hamcor Pty Ltd v Queensland

摘要

While the State was ultimately able to avoid liability, the QSC's interpretation of s 36 of the CLA has significantly narrowed the protection that, formerly, appeared to be provided by that section. Hamcor has appealed the QSC's decision to the Queensland Court of Appeal, and it remains to be seen whether, in the course of that appeal, the Court of Appeal will have the opportunity to consider the proper construction of s 36 of the CLA. In the meantime, pending any clarification by the Court of Appeal (or parliament), Queensland's public authorities are confronted by a much wider risk of liability in negligence. While some limited protection remains available under s 35 of the CLA, which sets out a number of general principles relevant to determining whether a public authority owes, or has breached, a duty of care (eg, the authority's allocation of financial or other resources is not open to challenge), the protection offered by that section is much less extensive than that which would have been available under a broad application of s 36. Given this, Queensland's public authorities may now need to undertake a review of their existing insurance arrangements and risk management decisions, if those arrangements or decisions have assumed the applicability of s 36 of the CLA to claims in negligence.