Victor sued after impaling his eye on a footpath barricade. He lost

One summer day, just a few minutes into his regular early-morning bike ride, Victor Dennison’s life was changed forever when he struck a temporary mesh barricade erected over a footpath.

The 64-year-old fell and impaled his left eye on a metal stake that was holding up one corner of the barricade, destroying his eye and causing a traumatic brain injury.

But despite a court finding workers did not follow relevant standards, guidelines and internal policies, Brisbane City Council was found not liable in a Supreme Court judgment handed down this month.

Dennison, a retired industrial chemist, was a fit and active man who liked to get out early in summer before it got too hot and the roads became busy.

Just after 4am on December 18, 2009, Dennison was riding his bike on the footpath next to Zillmere Road in Aspley, near the corner of Kirby Road, when he crashed.

He remained conscious for a short time, and somehow managed to pick up his bicycle, park it on its kickstand, walk back towards the orange mesh barricade and pick up the stake, before collapsing.

A passerby found him a short time later lying face down across the footpath.

The day before, a council construction crew had dug up part of the footpath to work on the underground water main. They filled the hole, re-concreted the footpath, and erected the barricade to protect the concrete as it cured overnight.

The barricade and yellow steel stakes were not reflective or fluorescent, and they did not have caps.

Justice Lincoln Crowley found no warning lights or signs had been placed around the barricade, and while he accepted the crew left four witches hats with white reflective centre bands at the site, they were gone at the time of the crash, possibly stolen.

Crowley found the sky was black, Dennison was using bike lights, and the closest streetlight was not working at the time.

A cyclist would not have been able to clearly see from 30 metres away that the right-hand side of the barricade was connected to the fence, blocking access, the judge said.

“Because of the poor lighting levels, reduced visibility and 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,” Crowley wrote in his judgment.

Dennison had tried to veer to the right of the footpath onto the grass strip, but by the time he could see the full extent of the barricade, it was too late to avoid crashing, Crowley said.

“Whilst 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,” he said.

Crowley said the council failed to comply with standards and policies, including by not doing a proper risk assessment for barricading work sites, not delineating an alternative path for pedestrians, not placing warning signs about the hazard, and not using reflective devices and signs.

However, he did not find the council liable, and said the way the barricade was set up was not unreasonable – despite the policies and standards – as decisions came down to the exercise of judgment.

Dennison is now 80 years old and living with frontal lobe dementia. His wife sued the council, on his behalf, for damages for personal injuries they claimed were caused by council’s negligence.

The council argued it did not breach its duty of care for people using the footpath because the precautions it took to manage risks were reasonable and sufficient in the circumstances.

After the incident, the council changed its procedures for pathway barricades.

The council and Dennison’s solicitors were contacted for comment.

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