A model example: revisiting obvious risks in dangerous recreational activities

In brief - Defendants found not liable in negligence in Nihill v Vivien's Model case

Section 5L of the Civil Liability Act 2002 (NSW) (CLA) has enjoyed some judicial attention in early 2020. We examine the recent decision of Nihill v Vivien's Model and Theatrical Management & Anor [2020] NSWDC 131, which highlights the courts' increasing willingness to accept defendants' section 5L defences.

During the hearing of this matter, the Court of Appeal delivered its decision in Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, and the District Court generously permitted the plaintiff to make further submissions in light of the Menz decision. 

Combined, Nihill and Menz provide insurers, lawyers and institutional defendants alike with an updated guide on how the Court will approach defences under section 5L.

Plaintiff injures herself falling onto rocks during photography shoot

Ms Nihill was participating in an unpaid photography shoot as a model. The shoot was arranged by her agent, Vivien's Model and Theatrical Management, and conducted by the photographer (second defendant) and videographer (third defendant).

To access the shoot location (rock pools near Manly, NSW), the plaintiff, second and third defendant were required to negotiate a bush track, abseil a rock face and traverse a rocky ledge some 30 cm wide. Whilst traversing the 30 cm rock ledge, the plaintiff fell four metres onto rocks and suffered injury.

Court's judgment on section 5L defence

The plaintiff neither accepted that she was engaged in a dangerous recreational activity at the time of the injury nor that the risk was obvious requiring the Court to give judgment on all elements of the section 5L defence.

Dangerous Recreational Activity

The plaintiff contended that the relevant activity was "modelling" which had no inherent risks. The Court disagreed, instead finding that the activity was "journeying to a rock pool for a photoshoot". The Court found that this was a recreational activity by reason that the plaintiff was required to journey through a National Park, and participate in an activity in a public space where people ordinarily engage in pursuits for enjoyment, satisfying the definition of Section 5K(c) of the CLA. 

This finding serves as a reminder that not only will the nature of the activity have a bearing on whether it is "recreational", but also the location of the activity will be considered.

In order to consider whether the activity was dangerous, his Honour considered both the likelihood of an injury occurring, as well as the potential seriousness of the injury. His Honour noted that the plaintiff accepted both that the portion of the journey requiring abseiling and walking along slippery rocks on the seashore was dangerous and if she fell, she could be seriously injured.

His Honour found that the activity of walking along tidal rocks which could be slippery was a dangerous recreational activity within the meaning of Section 5K of the CLA.

Materialisation of Obvious Risk

The Court followed Leeming JA's five considerations to determine how obvious risk is to be specified as set out in Menz. Ultimately, the Court determined that whilst the accident occurred in the course of the plaintiff undertaking modelling, the harm was caused as a result of her slipping and falling whilst walking on tidal rocks, and it was this risk of harm that was obvious.

It follows that the Court accepted the defendants' submissions and found that they were not liable in negligence for the harm suffered by the plaintiff. 

Positive news for defendants and insurers but each case will turn on its facts and gathering of detailed evidence remains key

Whilst the Courts' increasing acceptance of section 5L defences are a welcome development for defendants and insurers, it is important to keep front of mind that these cases will turn on their own specific facts and depend on the explicit circumstances leading up to an injury. 

It is vital that efforts be made to gather detailed evidence as to the factual circumstances of the accident as soon as possible so as to best position the availability of section 5L defences.