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Click and fall: obvious risk in dangerous recreational activities

It appears being a model may not always be as glamorous as it seems.

In 2015, Ms Nihill fell four metres onto rocks at North Head in Sydney during an unpaid photo shoot.

Ms Nihill commenced proceedings in the District Court against the agent, Vivien’s Model and Theatrical Management, together with the photo shoot’s photographer and videographer for negligence. Ms Nihill alleged the photo shoot required her to walk down a treacherous path to access the location, which involved abseiling a rock face and crossing a rocky ledge which subsequently led to her falling.

The agent argued in the defence that Ms Nihill had engaged in a dangerous recreational activity at the time of the injury pursuant to section 5L Civil Liability Act 2002 (NSW).

Ms Nihill asserted that the relevant activity was “modelling” which had no inherent risks. The Court disagreed, instead finding that it was a recreational activity by reason that Ms Nihill 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 Civil Liability Act 2002 (NSW).

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

In order to consider whether the activity was dangerous, the Court examined both the likelihood of an injury occurring, as well as the potential seriousness of the injury. The Court noted that the plaintiff accepted both that a 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.

The Court 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 Civil Liability Act 2002 (NSW).

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.

The Court found against Ms Nihill, entering verdict and judgment for the defendants: Nihill v Vivien’s Model and Theatrical Management & Anor [2020] NSWDC 131.

Liability limited by a scheme approved under Professional Standards Legislation

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