Local government determined to not have a duty of care in its planning guise after a member of the public developed a psychiatric injury due to a fatal accident in a carpark

In brief

The case of Bryant v Competitive Foods Australia & Ors [2018] QDC 258 concerned a trial in the District Court in relation to a personal injuries claim for damages for a psychiatric injury following an accident in the First Defendants carpark which resulted in the death of a child. 

The Plaintiff was the driver of the vehicle which struck a child on a pedestrian crossing in a Hungry Jack’s carpark (Premises). Due to the accident, the Plaintiff developed a psychiatric injury and sought damages for personal injuries against the following parties: 

• Competitive Foods Australia Pty Ltd (Competitive Foods); 
• Brisbane City Council (Council); and 
• Wayne Blow & Associates Pty Ltd (Architects). 

The Plaintiff’s complaint in respect of the Council's involvement in the trial, concerned the design and approval of the driveway and carpark. The Plaintiff submitted that the Council owed the Plaintiff a duty of care when approving the development application for the modification of the driveway and carpark of the Premises. 

The Council denied that it owed the Plaintiff a duty of care and submitted that even if the Council did, it not breach its duty or caused the Plaintiff’s psychiatric injury.

In order to determine the trial, the Court had to determine whether the Council owed the Plaintiff a duty of care in relation to the approval of a development application in respect of the Premises. 

The Court held that the Council did not owe the Plaintiff a duty of care in its role as a planning authority when exercising its statutory approval powers in relation to the development application over the Premises. 

Development application of the Premises

In September 1999, the Architects on behalf of Competitive Foods, submitted a development application to the Council for ‘extensions and alterations to an existing fast food store’ at the Premises (Development Application). The Council had to assess the Development Application under the provisions of the Integrated Planning Act 1997 (IPA). 

The Council made an information request to Competitive Foods under section 3.3.6 of IPA which requested Competitive Foods submit amended drawings which provided for safe and convenient movement of pedestrians from the existing car parking area into the restaurant. It also requested Competitive Foods to demonstrate compliance with section 19.10 of the Transitional Planning Scheme in relation to non-discriminatory access. 

The Architects responded to the Council's Information Request with the requested documents. The Council then approved the Development Application with conditions under section 3.5.15 of IPA. 

Did the Council owe a duty of care to the Plaintiff when approving the Development Application?

The Plaintiff submitted that the Council, as the assessment manager for the Development Application, owed a duty care to the public and therefore, owed a duty of care to do the following:

• exercise its statutory powers conferred by the IPA in respect to the Development Application with reasonable care; 
• avoid giving a development approval which gives rise to reasonably foreseeable risks to the public; 
• comply with the relevant planning schemes and codes; and 
• comply with the ‘Off Street Parking Facilities’ Standard and the ‘Manual of Uniform Traffic Control Devices’ Standard. 

The Court noted that the decision of Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 (Lee Decision), is the authority for the proposition that a council in its planning guise does not owe a duty of care. The court in the Lee Decision determined that when there is no authority establishing the existence of a duty of care, the Court should apply the salient features test established in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, 103 (Caltex Decision).

The Council relied upon the application of the salient features test established in the Caltex Decision and submitted that as the pedestrian crossing was located on privately owned land, it was not under the control of the Council. It was further submitted that once the Development Application was approved under the IPA, the Council had no role in the construction of the pedestrian crossing, or control over the subject works. 

The Court accepted the Council’s submission and determined that the Council did not owe a duty of care in relation to the approval of the Development Application. The Court further noted that the Plaintiff, as a motorist using the Premises, did not exhibit any reliance upon the Council’s approval of the Development Application and additionally, it ought to be reasonably expected that drivers who enter the Premises would keep an appropriate lookout for pedestrians on the Premises.  

The Court lastly noted that the statutory provisions within the IPA did not identify an existence of an actionable duty of care as there was no reference to the payment of compensation for a personal injury, no reference to the bringing of proceedings for personal injuries, and no reference to the provision of resources for the payment of compensation to adversely affected parties.

Conclusion

The Court held that the Plaintiff failed to establish that the Council had a duty of care in its planning guise when exercising its statutory approval powers in relation to the Development Application concerning the Premises. The Court therefore held that the Council did not owe the Plaintiff a duty of care and thus was not liable for the Plaintiff’s claim for compensation due to the development of a psychiatric condition after the accident.