Blacktown City Council v Hocking

Blacktown City Council appealed to the Court of Appeal of New South Wales against a judgment in favour of Ms Hocking, who had suffered injury due to a defective communications pit lid on a footpath managed by the Council. The primary dispute concerned whether the Council had breached its duty of care to Ms Hocking, and whether it was immune from liability under the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the Council owed a duty of care to pedestrians using the footpath, and if so, whether that duty had been breached. Specifically, the court considered whether the breach occurred during the construction of the pit lid or subsequently through negligent inspection. A key legal issue was the application of section 45 of the *Civil Liability Act 2002*, which provides immunity for councils in certain circumstances relating to non-feasance, and whether the Council had actual knowledge of the risk of harm posed by the defective lid. The court also considered the evidentiary weight of photographs presented at trial, and whether they were used as substantive evidence or merely demonstrative.

The Court of Appeal found that the primary judge had erred in finding that the Council had actual knowledge of the risk of harm. The court reasoned that the evidence, including the interpretation of photographs, did not establish actual knowledge on the part of the Council. Consequently, the Council was entitled to immunity under section 45 of the *Civil Liability Act 2002* as the claim related to non-feasance rather than misfeasance.

The appeal was allowed, and the verdict and judgment in favour of Ms Hocking were set aside, with judgment entered for the Council. Ms Hocking was ordered to pay the Council's costs. The cross-appeal was dismissed.