Dangerous Recreational Activity

It seems being a fashion model may not be all low-carb champagne and sugar-free chocolate.  Often it is early morning wakeups and hard work which sometimes can result in serious injury. 
 
The pursuit of the perfect image extracted a harsh price when model Michelle Nihill plunged 4m off a rock cliff at North Head in Sydney during a photoshoot in 20151.
 
Ms Nihil commenced District Court proceedings against her agent, Vivien’s Model and Theatrical Management, and the photoshoot photographer Kane Lehanneur.
 
Ms Nihill pleaded negligence against both, alleging the photoshoot required that she walk down a path which Mr Lehanneur described as “pretty treacherous,2 in order to reach the photogenic rock pools at Blue Fish Point.
 
The treacherous path involved abseiling 10m down a sheer rock face and walking barefoot on wet rugged terrain and tidal rocks. While walking across a 30cm rock platform with a 4m drop, Ms Nihil slipped and fell. She was air-lifted to Royal North Shore Hospital having suffered injuries to her toes, feet and heels. After 3 months in a wheelchair, she was fortunately able to ambulate once again but continued to suffer ongoing impairment which she said brought her modelling career to a premature end.
 
The District Court found against Ms Nihill, entering verdict and judgment for the defendants.
 
The Court was not satisfied that Ms Nihill was pressured to continue down the treacherous path despite her protests.3 The Court accepted that Mr Lehanneur and his colleague had explained to Ms Nihill at various times during the decent:

       “you don’t have to do this... If you don’t want to do this, we can turn around and go back”.4

It was accepted Ms Nihill nevertheless indicated she wished to proceed and said:

        “okay … let’s go.”

The Court rejected the plaintiff’s case that more appropriate footwear would have reduced the risk of harm. Given the nature of the terrain, the Court was not willing to make such a finding in the absence of expert evidence. In particular, it was noted that Mr Lehanneur at one stage removed his shoes as he thought his bare feet would give him better traction.5

Consideration was given as to whether the photoshoot constituted a “recreational activity” for the purposes of s5K of the Civil Liability Act 2002:

recreational activity includes—

(a)  any sport (whether or not the sport is an organised activity), and
(b)  any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c)  any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.


The Court found that the third limb of s5K was satisfied, s5K(c), in that the area of the photoshoot was a place where people ordinarily engage in activity for enjoyment, relaxation or leisure.6 As the activity involved an element of harm, it was further found a “dangerous recreational activity” for the purposes of s5K. Further it was found that the harm of slipping and falling while on tidal rocks, was a harm that materialized from an obvious risk of the dangerous recreational activity.7

Accordingly, the defendants were not liable in negligence for the harm suffered.

Our observations:

It may seem reflexively odd that the law would categorise modelling as a “dangerous recreational activity”.

And although Ms Nihill was on an “unpaid” photo shoot, Ms Nihill was a professional model, and the incident was undoubtedly in furtherance of her modelling career. It is accepted that professionals will often undertake unpaid work, engage in extracurricular activities or perhaps even write short legal case summaries and articles to further their careers.

The test however, applying the Court of Appeal decision of Fallas v Mourlas,8 is to consider the “particular activities actually engaged in at the relevant time”.9 Therefore, it is the “walking to the rock pools” which is the recreational activity that is dangerous; as opposed to the broad activity of “modelling”.

Post by Robert Mitas
 
[1] Nihill v Vivien’s Model and Theatrical Management; Lehanneur [2020] NSWDC 131
[2] At [50].
[3] At [99].
[4] At [84].
[5] At [144].
[6] [178].
[7] [212].
[8] Fallas v Mourlas [2006] NSWCA 32.
[9] [40]-[43].

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