Nihill v Vivien's Model and Theatrical Management - [2020] NSWDC 131

District Court

New South Wales

Medium Neutral Citation: Nihill v Vivien’s Model and Theatrical Management; Lehanneur [2020] NSWDC 131
Hearing dates: 11, 12, 13, 20 November 2019 and 22 April 2020
Date of orders: 22 April 2020
Decision date: 22 April 2020
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Orders:
(1) Verdict and judgment for the Defendants on the Plaintiff’s claim.
(2) The Cross Claim is dismissed.
(3) Subject to any application to my Associate within 7 days to relist the matter for any further or other order as to costs:
(a) the Plaintiff is to pay the Defendants’ costs on the Claim;
(b) there is to be no order as to costs on the Cross Claim.

Catchwords:
TORTS –– Negligence –– Personal Injury –– Where Plaintiff was a model under management of First Defendant –– Plaintiff attends photoshoot with Second Defendant arranged through the First Defendant –– Plaintiff suffers injury after slipping and falling at rock pools at national park –– Where s 5F and 5L of the Civil Liability Act applied –– Meaning of recreational activity, dangerous recreational activity and obvious risk –– Where s 5M of the Civil Liability Act did not apply –– Whether First Defendant breached duty of care –– Whether Second Defendant owed Plaintiff a duty of care

CONTRACTS –– Breach of contract –– Where informal contract existed between the Plaintiff and the First Defendant –– Where agency relationship existed –– Terms of agency agreement and whether they were breached by failing to effect “appropriate insurance”

TORTS –– Negligence causing economic loss ––Whether First Defendant was negligent in releasing Second Defendant from the obligation to have insurance –– Whether the risk that the Plaintiff would suffer economic harm as a result of a lack of insurance was foreseeable –– No duty of care on behalf of the Second Defendant –– No evidence that Plaintiff suffered harm –– No evidence as to the Second Defendant’s capacity to satisfy the verdict
DAMAGES – Non-economic loss – Expenses – Economic loss – Domestic Assistance
Legislation Cited: Civil Liability Act 2002 (NSW), ss 2, 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5L, 5M, 15, 15A, 16
Entertainment Industry Act 2013 (NSW), s 43, Schedule 1 Clause 2
Evidence Act 1995 (NSW), s 136
Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219
Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd (No 6) and Anor [2015] NSWSC 341
Astley & Ors v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Bruce v Apex Software Pty ltd t/as Lark Ellen Aged Care [2018] NSWCA 330
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Caltex Refineries (QLD) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Campbell v Hay [2014] NSWCA 129
Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32
Falvo v Australian OzTag Sports Association [2006] Aust Torts Reports 81-831; [2006] NSWCA 17
Fuller-Lyons v New South Wales (2015) 89 ALJR 824; [2015] HCA 31
Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292
Geoffrey W Hill & Assocs (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012
Greater Shepparton City Council v Clarke (2017) 56 VR 229
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Hawkins v Clayton (1988) 164 CLR 539
Hume v Paterson [2013] NSWSC 1203
Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396
IAG Ltd T/as NRMA Insurance v Zahed [2015] NSWSC 657
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Le v Brydens Lawyers [2017] NSWSC 180
Lormine Pty Ltd & Anor v Xuerab [2006] NSWCA 200
McConachie (t/as Willancorah Pastoral Company) v Pack [2004] NSWCA 148
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
National Australia Bank v Rice [2015] VSC 10
Neill v NSW Fresh Food & Ice Co Pty Ltd (1963) 108 CLR 362; [1963] HCA 4
Price v Southern Cross Television (TNT9) Pty Ltd (2015) Aust Torts Reports 82-208; [2014] TASSC 70
Re Day (2017) 340 ALR 368; [2017] HCA 2
RHG Mortgage Limited v Ianni [2015] NSWCA 56
Sanches-Sidiropoulos v Canavan [2015] NSWSC 1139
Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260
Shaw v Oakdale Junior Motorcycle Club Inc [2020] NSWSC 180
Shaw v Thomas [2010] Aust Torts Reports 82-065; [2010] NSWCA 169
Singh v Lynch [2019] NSWSC 1403
Southern Colour (Vic) Pty Ltd v Michael Parr [2017] VSCA 301
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35
The Moorcock (1889) 14 PD 64
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Werne v Krahe [2002] NSWCA 168
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] Aust Torts Reports 81-754; [2004] NSWCA 247
Zahed v IAG Ltd (t/as NRMA Insurance) (2016) 75 MVR 1; [2016] NSWCA 55
Texts Cited: Dal Pont, Law of Agency (LexisNexis, 3rd ed, 2013)
Category: Principal judgment
Parties: Michelle Nihill (Plaintiff)
The Trustee for Vivien’s Unit Trust t/as Hirere Pty Limited t/as Vivien’s Model and Theatrical Management (First Defendant/Cross Claimant)
Kane Lehanneur (Second Defendant/Cross Defendant)
Representation:
Counsel:
Mr R. Goodridge (Plaintiff)
Mr N. Polin SC (First Defendant/Cross Claimant)
Mr L. Havenstein (Second Defendant/Cross Defendant)
Solicitors:
Firths the Compensation Lawyers (Plaintiff
Clyde & Co (First Defendant/Cross Claimant)
Grover Law (Second Defendant/Cross Defendant)

File Number(s): 2018/355159
Publication restriction: Nil

table of contents

Background Evidence
Contract
Plaintiff - paragraph 8
John Nihill - paragraph 26

Arrangement
Plaintiff - paragraph 31
Second Defendant - paragraph 35
Tyler Bell - paragraph 41

Meeting at Manly Hospital
Plaintiff - paragraph 43
Second Defendant - paragraph 51
Tyler Bell - paragraph 54

Journey to Blue Fish Point
Plaintiff - paragraph 56
Second Defendant - paragraph 66
Tyler Bell - paragraph 72

Abseiling
Plaintiff - paragraph 74
Second Defendant - paragraph 86
Tyler Bell - paragraph 94

Journey Thereafter
Plaintiff - paragraph 100
Second Defendant - paragraph 104
Tyler Bell - paragraph 108

The Fall
The Plaintiff - paragraph 110
Second Defendant - paragraph 121
Tyler Bell - paragraph 126

Findings
Reliability of witnesses - paragraph 127
Footwear - paragraph 140

Section 5F and 5L of the Civil Liability Act 2002 (NSW) - paragraph 148
Recreational Activity - paragraph 158
Dangerous Recreational Activity - paragraph 179
Materialisation of Obvious Risk - paragraph 201

Section 5M of the 2002 Act - paragraph 214
Section 5B and 5D of the 2002 Act
Risk of Harm - paragraph 233
Liability of First Defendant
Plaintiff’s Submissions - paragraph 236
First Defendant’s Submissions - paragraph 248
Consideration - paragraph 257

Liability of Second Defendant
Plaintiff’s Submissions - paragraph 272
Second Defendant’s Submissions - paragraph 276
Consideration - paragraph 279

Breach of Contract
Plaintiff’s submissions - paragraph 289
First Defendant’s Submissions - paragraph 313
Consideration - paragraph 320

Negligence Causing Economic Loss - paragraph 334
Damages
Physical injuries
Plaintiff’s Evidence - paragraph 345
Plaintiff’s Medical Evidence - paragraph 351
Defence Medical Evidence - paragraph 359
Consideration - paragraph 364

Psychiatric Injury
Plaintiff’s Evidence - paragraph 371
John Nihill’s Evidence - paragraph 374
Plaintiff’s Psychiatric Evidence - paragraph 376
Defendant’s Psychiatric Evidence - paragraph 380
Consideration - paragraph 383

Non-Economic Loss - paragraph 389
Expenses
Past Out of Pocket Expenses - paragraph 397
Future out of Pocket Expenses - paragraph 398
Domestic Assistance - paragraph 409

Economic loss
The Plaintiff - paragraph 415
Ms Priscilla Leighton-Clark - paragraph 426
Submissions - paragraph 431
Consideration - paragraph 440

ORDERS - paragraph 452

Judgment

The Plaintiff brings proceedings in tort and breach of contract for personal injuries arising out of accident that occurred on 18 November 2015 whilst attending a photo shoot with the Second Defendant, which had been arranged through the First Defendant modelling agency.
The accident occurred whilst walking around rocks at a location known as “Blue Fish Point” in Sydney Harbour National Park, North Head. The Plaintiff slipped off a rock, and consequently fell a distance over 4 metres onto another rock formation below.
In the Plaintiff’s case, evidence was given by the Plaintiff herself, and her father, Mr John Nihill.
No oral evidence was called by the First Defendant. The Second Defendant himself gave evidence, along with a videographer who was also present at the time of the accident, being Mr Tyler Bell.
The First Defendant cross claimed against Second Defendant seeking indemnity in the event the Plaintiff was successful.
Statements of Issues were filed by the Plaintiff and Defendants (jointly). [1]
1. T 182.3-.39.
On the day the matter was listed for delivery of judgment an opportunity was afforded to the parties to make further submissions if desired in light of the decision delivered the previous day in Menz v Wagga Wagga Show Society Inc. [2] Only the Plaintiff elected to do. The delivery of judgment was thereafter deferred to later in the day.

Background Evidence

2. [2020] NSWCA 65.

Contract

Plaintiff

The Plaintiff was 14 years old when she participated in a modelling competition through the First Defendant, which resulted in them approaching her. [3] The Plaintiff stated that the relationship with the First Defendant commenced by her doing castings and test shoots to start building up her portfolio. [4] She stated that she would get a call from the First Defendant, and would thereafter “accept the job”. The First Defendant would then send through an email with details of what to bring, what she had to wear and the location of the job. [5]
3. T 37.05-.09.
4. T 37.10-.14.
5. T 37.23-.26.
The Plaintiff gave evidence that she carried out both paid and unpaid jobs. In terms of the unpaid jobs, she described these as jobs that she undertook to get photos to build up her portfolio. [6] They included castings, which she stated were analogous to a job interview, which might or might not lead to a job being obtained. [7] Castings enabled her to see what jobs she could get, with the hope that she would be successful. [8]
6. T 38.29-.31.
7. T 38.33-.45.
8. T 38.47-.49.
The other kind of unpaid jobs she engaged in was described as meeting agencies. With these engagements, she would meet with agencies arranged by the First Defendant, [9] and take her casting cards and clothing so that photographic stills could be obtained to build her portfolio. [10]
9. T 38.17-.23.
10. T 39.01-.12.
She stated that she accepted jobs because she wanted to do them. [11] When she attended the jobs, no one from the First Defendant was present. [12] Initially she described that she was transported to the jobs by her parents, [13] but as she grew older, she would usually get public transport, drive herself or one of her parents would drive her if they were available. [14]
11. T 39.21-.23.
12. T 39.45-.46.
13. T 39.47-.50.
14. T 40.01-.08.
The Plaintiff’s evidence was that in relation to paid jobs, these were sometimes remunerated directly by the First Defendant and on other occasions, by the person who had engaged her. [15]
15. T 55.44-56.04.
There was evidence that at one point the First Defendant regarded the Plaintiff reasonably highly. They indicated that they were happy with her progress, and noted that she had steadily gained experienced and they often received good feedback from third parties who engaged her. They proposed to move her off the development board and onto what was described as the main board when she turned 16. [16]
16. Exhibit B, Email from Catherine McGill dated 14 June 2012.
It was not in issue that the First Defendant was the exclusive agent and manager for modelling services performed by the Plaintiff. [17] The Plaintiff gave evidence of times when third parties wanted to use her services and she had been instructed by the First Defendant to tell them to get in contact with the First Defendant. [18]
17. First Defendant’s Amended Defence at [2a]; T 65.26-.47.
18. T 65.09-.37. See also Exhibit E, six email chains dated 10/08/2015 to 02/11/2015.
The Plaintiff stated that she assumed that she would have been insured by the First Defendant, particularly in relation to the job that she was undertaking at the time of the accident. She stated that she further understood that as a result of the agency, the First Defendant would be obliged to ensure that she was safe at every job she attended. [19] From her point of view, she described the First Defendant’s role was to provide her with many job opportunities so that she could extend her career in modelling. [20] The Plaintiff stated that at the time she did not take out any insurance, and had not been instructed to, as she believed that insurance was provided. [21]
19. T 65.49-66.17.
20. T 66.26-.29.
21. T 66.31-67.20.
In cross-examination, the Plaintiff stated that she understood that insurance was for herself and in respect of her personal liability. [22]
22. T 67.24-.47.
The Plaintiff’s evidence was that she went to approximately 100 jobs which were provided to her by the First Defendant. [23]
23. T 62.42-.45.
The Plaintiff acknowledged that she went to all of the jobs she was offered because she wanted the experience, and wanted the photos to build up her portfolio. [24] She stated that her aim was to become a model in the long term, but if this wasn’t financially successful, she would have had to have gained other employment. [25]
24. T 64.45-.47.
25. T 64.49-65.07.
In cross-examination the Plaintiff’s attention was then taken to a bundle of sample documents that were tendered in her case. [26] The Plaintiff conceded that the information provided by the First Defendant included a phone number for a contact person. [27] She stated that she always went off the information that she was provided by the First Defendant, through whom the job was organised. [28]
26. Exhibit D, Plaintiff’s Tender Bundle.
27. T 71.12-.20.
28. T 71.35-.42.
The Plaintiff acknowledged, by reference to another booking sheet for a beach shoot dated 12 October 2015, that at the time of receiving it, she did not know where the actual shoot location would be. She further accepted that it would be very dependent on the light. [29] Consequently, she accepted that when she received the booking for the job in question she did not know which part of Manly Beach she was going to be taken to. [30]
29. T 117.06-.21.
30. T 117.23-.42.
In cross-examination, the Plaintiff conceded that she had been told by persons at the First Defendant that in terms of any job she was undertaking, she was not to do anything that she was not comfortable doing. [31] She stated that she had heard it before and was well aware of it at this time of her career. She acknowledged that models are sometimes asked to do things that they are not comfortable doing. [32]
31. T 76.33-.40.
32. T 77.11-.13.
When it was specifically put to her that she would not do everything that a photographer would tell her to do, [33] she stated:

A. Just when I turn up to jobs, I feel that's what I need to do. I feel that I need to do the job because that's what I've been booked for, and as I said before, it's my passion, it's my dream job to do that, which is why - and then as I said yesterday, I put my trust in who I'm with to ensure that I'm safe. [34]
33. T 118.14-15.
34. T 118.21-.24.

The Plaintiff’s attention was then drawn to Exhibit 7. She accepted that the photo in that exhibit, which showed her modelling on a pillar, was an unusual photo. [35] She further accepted that it was risky. [36] She stated that while the photo depicts her standing in high heels, she did not have heels on at the time she stood up the top and had two assistants helping her. [37] She accepted that she was directed to get on top of the pillar in high heels with waves breaking nearby. [38]
35. T 122.05.
36. T 122.07-.08.
37. T 122.17-.19.
38. T 122.25-.30.
The Plaintiff explained that the photo in Exhibit 7 involved a shoot that she was requested to do which stood out. [39] She stated that she performed this modelling task because of her passion and the assistance she had on that day to get her to the point where she was. [40]
39. T 122.45-.50.
40. T 123.07-.12.
The Plaintiff accepted in cross-examination that she had on occasion, indicated that she was not interested in doing particular test shoots. [41] She accepted that there was no obligation for her to do every test shoot that was offered, stating that she was looking to build up her portfolio with specific shoots, rather than others. [42] The Plaintiff acknowledged that in a number of emails, tendered as Exhibit 9, she had indicated that she did not wish to do something or was not available. [43]

John Nihill

41. T 126.33-127.44.

42. T 127.46-128.01.

43. T 128.20-.45.

The Plaintiff’s father, John Nihill, gave evidence which largely corresponded with that of the Plaintiff. He stated that the first contact the Plaintiff had with the First Defendant was when the Plaintiff was doing a runway exercise and competition at the Dee-Why shops. Following that, the First Defendant approached the Plaintiff and put her on their development site. [44] He stated that thereafter, the Plaintiff was contacted from time to time for various jobs, whether they were paid or unpaid, to be photographed or to meet various clients. [45]
44. T 149.22-.27.
45. T 149.29-.32.
Mr Nihill stated that for the first few years he or his wife would take the Plaintiff to the appointments organised by the First Defendant. [46] At no point was any formal contract signed or discussed between himself and the First Defendant regarding the Plaintiff’s appearances. [47]
46. T 149.34-.37.
47. T 149.39-.41.
When asked as to what his expectations were of the arrangements with the First Defendant and the Plaintiff, Mr Nihill stated that the First Defendant was the Plaintiff’s agent regarding her modelling career, and he and his wife were happy for them to act in this role. He stated that from that point on, they made contact each time the Plaintiff had a test shoot or a photo shoot for any job that came up. [48]
48. T 149.43-.49.
The question of insurance was never mentioned, although Mr Nihill stated that he and his wife had assumed that whenever the Plaintiff was doing something that was arranged for by the First Defendant, she would be insured by the First Defendant. [49]
49. T 150.08-.12.
In cross-examination, Mr Nihill stated that requests for the Plaintiff’s services were communicated sometimes via phone and other times via email. [50] He accepted that ultimately there was a follow up email and possibly a phone call asking whether the Plaintiff was interested in doing a particular test shoot. [51] He also acknowledged that job sheets were sent to his email, and thereafter a decision would have to be made about whether the Plaintiff could do the job, because at that stage she did not have a licence and he and his wife needed to make sure that they could get the Plaintiff to the job. [52]
50. T 152.13-.19.
51. T 152.21-.27.
52. T 153.01-.04.

Arrangement

Plaintiff

The Plaintiff stated that leading up to 18 November 2015, she was contacted by the First Defendant and advised that there was a photographer who wanted to do a test shoot. [53] She understood that she was not to get paid. [54] She further acknowledged that neither of the Defendants were to be paid. [55]
53. T 72.11-.23.
54. T 72.31-.32.
55. T 72.34-73.06.

In that context the Plaintiff stated that she was asked whether she wished to do the job. Her response was “Yes” because she wanted to do it, as she wanted to build up her portfolio with beach wear shoots. She stated that she was told that it was a beach wear shoot, and that the meeting point was at Manly Hospital and they were going to go to the beach. [56] The Plaintiff accepted that the meeting point at the Hospital was a long way from the beach [57] but she had previously done a shoot down at Manly Beach, and that is where she assumed it would be. [58]
56. T 73.08-.13.
57. T 74.16-.18.
58. T 74.20-.34.
On 17 November 2015 an email sent to the Plaintiff confirming the details and advising:

5.15AM -12 PM    Photographers-NOT A BILLING CLIENT
Photographic Stills    Stills and Video
Job (no Fee)      Call Time 05:15
Meeting Point is Manly Hospital
Kane’s number is [REDACTED]
Please have natural light make up on – there is no makeup artist. [59]
59. Exhibit D, Tab 15 at 111-12.

It was then put to the Plaintiff that upon receipt of this email, it was open to her to contact the Second Defendant if she had any concerns leading up to the actual meeting. The Plaintiff acknowledged this was so, adding that she did not have any concerns at that stage. [60]

Second Defendant

60. T 76.06-.14

The Second Defendant gave evidence that he is a photographer, and that he had engaged with the First Defendant to arrange model shoots in the past. [61] On 10 November 2015 he communicated with Ms Nicola Atwa, head booker for the First Defendant, expressing interest in using models to build his creative profile and mentioning the Plaintiff for a “beach/water inspired shoot. On 16 November 2015 the Second Defendant advised his proposal was for the shoot to take place on 18 November 2015 to do an early sunrise in Manly. Ms Atwa responded the same day confirming the Plaintiff’s availability and advising that “she has her own car.” Thereafter the Second Defendant wrote again asking that the Plaintiff meet out the front of Manly Hospital and that “the location is just near there.” On 17 November 2015 Ms Atwa sought advice when the Second Defendant had confirmed “times etc.” Thereafter the Second Defendant wrote to Ms Atwa stating inter alia:

Okay tomorrow for Michelle we will be meeting at outside manly hospital at 5.15 am. Let me know if there are any troubles, and could you send me her phone number so I could contact her be there any hick ups etc.

Ms Atwa emailed a response stating:

Thanks Kane, I will let Michelle know.
Does she need to bring anything with her?
Here is her number [REDACTED]”
Can you pass me yours also? X [62]
61. T 158.25-.38.
62. Exhibit 11.

Although undated, from the contents of the immediately preceding email the last mentioned email must have been sent sometime after 1.57 pm. It is implicit from the notification given to the Plaintiff that there was some further communication between the First and Second Defendants. This is so as the worksheet sent to the Plaintiff communicated details of requirement for makeup, the contact number of the Second Defendant and mention that there would be both video and stills. [63]
63. Exhibit D, Tab 15 at 112.
According to his evidence, the Second Defendant spoke to Ms Atwar sometime on 17 November 2015 and stated:

WITNESS: I said that we were going to go to the rock pools at North Head. I explained that we'd been there before and we were going to take the truck [track] down, and the rock pools lay at the bottom of the head, and she agreed and we made a meeting point, and she told me that she would be in contact with Michelle to meet me there. [64]
64. T 159.34-.38.

Under cross-examination on behalf of the First Defendant, the Second Defendant stated that he had done a shoot with the First Defendant through a friend of his a year before the shoot involving the Plaintiff. [65] Thereafter he stated that he made contact again with the First Defendant to take photographs of models. [66]
65. T 170.24-.35.
66. T 170.40-.50.
The Second Defendant acknowledged that there was nothing in the emails, earlier referred to, indicating that there would be shoots at rock pools. [67] He accepted that the only reference was “beach/water inspired shoot”. [68] The Second Defendant also accepted that “rock pools at North Head” could mean a variety of locations, including Collins Beach. [69]
67. T 171.17-.22.
68. T 171.24-.25.
69. T 171.34-.37.
The Second Defendant stated that his intention was to take photographs of the Plaintiff as part of a test shoot to use in his own portfolio and to send them to the First Defendant for use in the Plaintiff’s portfolio. [70]

Tyler Bell

70. T 177.41-178.02.

Mr Bell explained that at least 8 days before the date of the accident he knew that they were going to go to Bluefish Point. [71] He further stated that he had been going to the site for 2 years prior to the accident, at least once or twice a year. [72] He described going about 4 to 5 times. [73] He accepted however, that he had not been there previously with the Second Defendant. [74]
71. T 187.39-188.01.
72. T 188.03-.07.
73. T 188.09-.14.
74. T 188.16-.22.
The video which was taken by Mr Bell was tendered as Exhibit G. Mr Bell indicated that he was present on the day for his own purposes, and so that the video could be given to the First Defendant and the Plaintiff for their own use. [75] He acknowledged that he had done video shooting on other occasions which did not involve use of this particular site. [76]
75. T 190.32-.43.
76. T 191.12-.14.

Meeting at Manly Hospital

Plaintiff

Following receipt of the confirmation email the Plaintiff stated that she arrived at Manly Hospital at 5:15am and met the Second Defendant. [77] She stated that she received a text from him that morning on her way to meeting him, and knew that it was him because she saw him opposite the hospital, at his car, waiting for her. [78]
77. T 40.10-.15.
78. T 40.17-.20.
The Plaintiff thereafter got into the Second Defendant’s car and travelled roughly 200 to 300 metres where he parked the car. [79] She stated that when she got out and went and met Mr Bell. [80]
79. T 41.07-.18.
80. T 41.20-.22.
The Plaintiff was asked whether when she met with Mr Bell, she was told where they were heading. The Plaintiff’s responded that she was told very little and that they were going to down to some rock pools to get some photos, and to get some photos of the sunrise. [81]
81. T 40.46-.48.
During cross-examination on behalf of the First Defendant, the Plaintiff went on to state that what happened on 18 November 2015 was something that she thought was going to completely different to what it was. [82]
82. T 118.44-.47.
The Plaintiff stated that she did not know where she was going before she went down the bush track and had she known that, she wouldn’t have done it. She conceded that she lived on the Northern Beaches, and was reasonably familiar with North Head. She reiterated that it had been suggested to her that they were going to go down to some rock pools, adding however, that she did not know whereabouts they were. She stated that she thought that there might be some stairs going down to the ocean, and that she ultimately put her trust in the Second Defendant and Mr Bell and went down. [83]
83. T 77.27-78.17.
The Plaintiff stated that before embarking on the bush track she had no idea what to expect and all she knew was that they were going to rock pools. [84]
84. T 79.43-.46.
During cross-examination on behalf of the Second Defendant, the Plaintiff conceded that after she met the Second Defendant, she was told that they would be meeting Mr Bell and going down to the rock pools. [85] The Plaintiff acknowledged that after they met with Mr Bell, she was given a debrief of the intended photo-shoot. The Plaintiff acknowledged that at this point, there was a conversation where they told her they were going to the rock pools and would take some photographs at the top of a gun turret. [86]
85. T 135.08-.16.
86. T 135.39-.45.
The Plaintiff did not recall about being told that they would then walk to a second gun turret. [87] She further did not recall that the Second Defendant told her that at that point it was “a pretty treacherous path down to the rock pools”. [88] Nor did she recall being told that if she did not feel comfortable with anything, then she should let them know and the shoot would stop. [89] She further did not recall stating in response that she would be “fine”. [90]

Second Defendant

87. T 135.50-136.02.

88. T 136.04-.07.

89. T 136.09-.14.

90. T 136.16-.18.

The Second Defendant said he picked up the Plaintiff from Manly Hospital at around 5.15am on 18 November 2017, who he observed had been dropped off by her mother. He gave evidence that he met the Plaintiff in the car park and then they proceeded to go to the waste management plant at North Head. [91] He stated that he advised the Plaintiff that they were going to go down to the rock pool and conceded that he didn’t say too much about what was going to happen, as he was waiting until he met with Mr Bell so that everyone was on the same page. [92]
91. T 160.07-.30.
92. T 160.41-.45.
The Second Defendant then drove to North Head and towards the waste management plant. [93] When they arrived, they met up with Mr Bell who was preparing for the shoot. While preparing for the shoot, the Second Defendant stated that he had the following conversation with the Plaintiff:

…I said we were going to go to the rock pools. On the way down, we were going to shoot up the top. I said the path is going to be treacherous, and if she didn’t want to do anything on the day, then she didn’t have to, and we could take the shoot somewhere else if need be. [94]
93. T 160.30.
94. T 161.15-.18.

He said the Plaintiff said “Yeah, that’s fine” and they began their journey. [95]

Tyler Bell

95. T 161.20-.23.

Mr Bell stated that in November 2015 he was working with the Second Defendant, who organised to meet with him on 18 November 2015. He stated that he arrived separately and then met with the Plaintiff and the First Defendant at North Head. [96]
96. T 183.20-.27.
There, he stated that there was a conversation that they were going to walk along the fence and down past the bunkers to the rock pools. [97] He stated that the Plaintiff was advised that it was treacherous ahead and if she did not feel comfortable at any stage, she could stop. [98]
97. T 183.45-.47.
98. T 183.49-184.02.

Journey to Blue Fish Point

Plaintiff

Thereafter, the Plaintiff stated that they headed to the area she now knows as Bluefish Point. [99] She stated that she was walking through bushland, and that she walked some way before realising how far she had actually gone. [100] She described the bush track as being one person wide, that the three of them were walking behind one another and that she was following. [101]
99. T 40.42-.44.
100. T 41.42-.49.
101. T 42.01-.06.
In cross-examination on behalf of the First Defendant, the Plaintiff conceded entering the track beside the North Head sewerage treatment plant, and that she then walked along a dirt track that went alongside the sewerage plant’s fence. She could not remember how long her journey was down the bush track, but at the end of the track she was on the ocean side of Bluefish Point. [102]
102. T 80.47-81.21.
The Plaintiff stated that she turned up only wearing her sandals, but took them off half way through because her bare feet had more grip than her sandals did. [103] She then continued to walk along the bush track because she felt like she had to continue doing it. [104]
103. T 93.42-.45.
104. T 94.37-.39.
The transcript records the following exchange:

Q. I understand that, but at any point, 10 metres along the path, if you thought your footwear wasn’t appropriate, you could have turned around and said – I don’t want to do this. We need to do the shoot somewhere else. You could have said that couldn’t you?
A. I could have but I didn’t because it was, as I’m saying like this is my – it was my job. It was what I was doing and as I said, I put my trust in the photographers, so.
Q. I understand that, but what it was giving you was a set of photographs for your portfolio?
A. Yes.
Q. And you knew that’s all it was giving you. You weren’t going to be paid for it?
A. No.
Q. You didn’t have to do it?
A. But I wanted to do it because--
Q. Yes, I understand you wanted to do it. You were keen to get the photographs?
A. Yes.
Q. Is that why, notwithstanding the fact you were in bare feet and you continued to walk along the bush track?
A. Yes, because I felt like I had to continue doing it.
Q. To get the photographs?
A. And just because I felt like I had to continue doing it because it was – I was already there and you know, it was my – it was my job at the time is what I’m saying and I kind of felt like I was kind of pressured to kind of be stay there, be there.
Q. But the pressure was to get the photographs for your portfolio. That’s the only pressure there?
A. Yeah. [105]
105. T 94.14-.49.

The Plaintiff conceded that she did approximately 15 minutes of photo shooting near the old gun bunker. [106] She acknowledged that from that point, she could see the sea. [107] Thereafter, she stated that she continued along the track in a northerly direction and at one point the track started to go down. [108] She further conceded that along the way, more photographs may have been taken. [109]
106. T 82.44-.83.06.
107. T 83.26-.27.
108. T 83.32-.43.
109. T 83.45-.46.
The Plaintiff then acknowledged that she had to go down a dirt and rock gully area to the first platform area, where she reached the point where the rope was. [110] The Plaintiff did not recall it being suggested to her “If you’ve got any problems, we don’t need to go down to the rock pools.” [111]
110. T 84.28-.38.
111. T 84.44-.47.
By reference to Exhibit 1, the Plaintiff conceded that she was going down a rock path, but did not recall going past a second bunker. [112] She stated that as she was going down, there was always one photographer in front of her, and one behind her. [113] She stated that she could not recall being told as she went down “are you happy to keep going?” [114]
112. T 90.29-91.07.
113. T 91.24-.26.
114. T 91.35-.37.
In cross-examination on behalf of the First Defendant, it was put that as the Plaintiff went along the bush track at a point towards the end she came across of wooden stairs. She stated that she never saw such stairs, [115] and added that she never walked down any wooden stairs. [116] The Plaintiff disagreed with the suggestion that she had to walk past a sign depicted in Exhibit 2D1. [117] She reiterated that she did not see any sign. [118]
115. T 81.41-.46.
116. T 81.45-82.08.
117. T 82.10-.16.
118. T 82.30-.37.
Under cross-examination on behalf of the Second Defendant, the Plaintiff conceded going to the first gun turret where photographs took place for approximately 15 minutes. [119] She further conceded that the Second Defendant told her at that point that they were going to go to the next one, [120] but did not recall being told that if she was uncomfortable at any point during the shoot she should let them know. [121] The Plaintiff recalled that on the route to the second gun turret some photos were taken. [122] She recalled the Second Defendant asking her at that point whether she was okay, and she responded that she was fine. [123] She also recalled Mr Bell asking her whether she was ok, and responding that she was fine. [124] However, she added that she was not told, “If you’re unsafe, let us know”. [125]
119. T 136.26-.137.01.
120. T 137.03-.05.
121. T 137.07-.09.
122. T 137.29-.30.
123. T 137.29-.39.
124. T 137.41-.45.
125. T 137.47-.48.
The Plaintiff stated that she did not remember taking any photos at the second gun turret, but just walked past it. [126] Thereafter, she stated that she walked the same level of the gun turret and then had to get down to the level where the rope was. [127]

Second Defendant

126. T 138.06-.13.

127. T 138.24-.29.

The Second Defendant stated after the conversation earlier referred to they proceeded thereafter to walk on the track around the waste management site. He described the path as rocky, with a ledge on the left hand side and a lot of bush on the right hand side. He stated that it was “pretty flat” across the top of North Head, to where they reached the first bunker. [128]
128. T 161.25-.34.
The Second Defendant stated that as they proceeded along the track, he did not see anything except the waste management plant. [129] However, once he reached the first bunker, he recalled seeing a sign. [130] He accepted that he had not read the detail of it before the accident. [131]
129. T 161.42-.43.
130. T 161.45-162.11.
131. T 179.09-.11.
At the first gun turret, they took some shoots and Mr Bell took video. [132] After finishing this, he stated that he told the Plaintiff that they were going to continue the journey to the next gun turret down the bottom and that this wasn’t a very treacherous point. However, he also reinstated the fact that if the Plaintiff didn’t want to do it, or if she needed “a hand down in any way, shape, or form, to let us know”, to which the Plaintiff agreed. [133]
132. T 162.30-.39.
133. T 162.41-.49.
Proceeding on the next part of the track, the Second Defendant stated that it went down some wooden steps before reaching the warning sign. From there, there was a right hand turn and proceeded down a track, which he described as “bit more treacherous.” [134]
134. T 163.09-.15.
At that point, the Second Defendant stated that he took the Plaintiff’s belongings and said to her “it gets a bit treacherous here. If you need a hand, let us know. If you want to turn around, let us know.” He stated that down the track they were taking some photographs. [135] Up until that point, the Plaintiff was described as being “fine” and not needing any assistance. The Second Defendant stated that at this point, he and Mr Bell were carrying all of the Plaintiff’s belongings and that they assisted her to traverse down one or two spots. [136]
135. T 163.17-.24.
136. T 163.26-.42.
Eventually they got to the second gun turret, and proceeded past it. The Second Defendant described that from there, they continued north for about 50 metres until they reached a rock ledge which needed to be hopped down, until they traversed to the abseil point. [137]

Tyler Bell

137. T 164.01-.16.

Mr Bell’s evidence was that the three of them headed along the track and walked down set of five stairs where the warning sign was and reached the first bunker. At that location, they were there for approximately 5 minutes and took some shots as the sun was coming up. They then made their way to the second bunker, shooting along the way. Mr Bell explained that the Plaintiff was positioned between himself and the Second Defendant, and it was reiterated to her that if she felt uncomfortable at any stage, she was to “sing out” and they could stop. [138] Mr Bell acknowledged that Exhibit 2D1 contained three photographs depicting the sign that they walked past. [139] The sign read:

138. T 184.04-.48.
139. T 186.43-.44.
Mr Bell acknowledged that before that day, he had noticed the sign, but had not obeyed it as he had been there a few times before with many friends. [140] He accepted that he thought that he would take the risk and not worry about the warning. [141] His evidence was that the sign was located near the stairs before the first bunker shoot location. [142]
140. T 186.48-187.07.
141. T 187.09-.11.
142. T 184.04-.07.

Abseiling

Plaintiff

The Plaintiff acknowledged that she eventually got to a point on the ocean side of Bluefish Point at North Head. [143] There, she described seeing a ledge with a rope which was attached to a big metal nail in the rock. [144] At that time she described that there was no chain on the nail. [145]
143. T 42.11-.15.
144. T 42.17-.25.
145. T 42.27-.29.

The Plaintiff stated that the conversation she had with the Second Defendant Mr Bell commenced with her saying, “I don’t want to go down there.” She described the First Defendant and Mr Bell saying to her:

Basically, Tyler and Kane said to me that they’d been down this way before and that they were following markings on rocks to get to the location. [146]
146. T 42.35-.39.

The Plaintiff stated that she put her trust in the Second Defendant and Mr Bell, because they had told her that they had done it before. [147]
147. T 42.41-.43; T 120.01-.05.
The Plaintiff stated that she then proceeded to abseil down the rock, with the Second Defendant going down first and Mr Bell staying at the top. [148] She estimated that she abseiled down 1.7 metres. [149]
148. T 42.50-.43.07.
149. T 43.30.
In cross-examination on behalf of the First Defendant the Plaintiff was adamant that at the point noted in Exhibit 1 at 1:39, she did not recall that, as the spot where she went down. She stated that there was no chain in the spot on the day in question. [150] She was shown by reference to Exhibit 1 a location showing an approximately 10 metre descent. She stated that it was not that point that she went down, as she would not have climbed down that far. [151] When it was suggested to her that there is only one point that rope and chain is used to go down the rocks in that area, she indicated that there was no chain. [152]
150. T 92.08-.33.
151. T 93.07-.09.
152. T 93.11-.13.
The Plaintiff stated that she did not recall the spot identified in Exhibit 1 with the rope and chain as the spot which she descended from. [153] She stated that she put her trust in the photographers because the Second Defendant went down first, and then she descended whilst Mr Bell was standing up the top and watching her. [154] She did not remember the descent being 10 metres. [155]
153. T 96.19-.21.
154. T 96.44-.49.
155. T 97.38-.41.
The Plaintiff stated that she said that she did not want to go down the rock face, as she realised that when she looked down and saw how far down Bluefish Point she was, she didn’t realise how far down she was. [156] She further stated that the measurement she gave earlier in her evidence of 1.7m was what she thought it was, and that’s what she went off. [157] The Plaintiff stated that the reason why she did not wish to go down the rock face was because she thought it dangerous. [158] She accepted that if she slipped and fell then she would fall straight off the cliff. [159] She further accepted that if the rope broke while she was holding on to it or if she let go, she would fall backwards down the cliff. [160]
156. T 97.43-.46.
157. T 97.29-.33.
158. T 97.48-.49.
159. T 98.01-.04.
160. T 98.06-.09.
The Plaintiff rejected the suggestion that at the point she was to go down the rock face, the photographer told her “are you happy to go down here? You don’t need to go down.” She further rejected stating in response, “No, I want to get the shots of the pool.” [161]
161. T 93.18-.25.
The Plaintiff proceeded to state that she realised exactly the position that she was in, and when they said to her “we’ve done this before, you’ll be fine” she put her trust in the Second Defendant and Mr Bell. [162]
162. T 93.30-.35.
During cross-examination on behalf of the Second Defendant, the Plaintiff acknowledged she came to the metal stake out of the ground. [163] She added however, that she could only recall a rope and there was no chain in sight. [164] The Plaintiff conceded that it looked scary and risky, [165] and that at that point she stated “I don’t want to go down there”, and the Second Defendant and Mr Bell responded stating “We’ve done this before”. [166] She stated that she put her trust in them when they told her that they were following markings on rocks which she saw as confirmation that they had done it before. [167]
163. T 138.35-.36.
164. T 138.41-.43.
165. T 139.20-.24.
166. T 139.32-.36.
167. T 140.08-.13.
Pausing before responding, the Plaintiff stated that she couldn’t recall either the Second Defendant or Mr Bell of them saying “You don’t have to do this.” [168] Nor did she recall either of them saying “we don’t have to do this because we can finish the photo shoot at the top of the rocks”, [169] or “if you don’t want to do this, we can turn around and go back. It is up to you.” [170]
168. T 139.38-.45.
169. T 139.47-.49.
170. T 140.01-.03.
The Plaintiff stated that she gave her belongings to the Second Defendant, [171] and that he subsequently carried them for her. [172] She stated that the Second Defendant abseiled down first, [173] and then she went down with her hands free but with Mr Bell at the top. [174] Mr Bell then came down after her. She reached the bottom of the rock without any injury. [175]

Second Defendant

171. T 140.35-.36.

172. T 140.38-.39.

173. T 140.41-.42.

174. T 140.41-141.02.

175. T 141.17-.22.

At the rock ledge, the Second Defendant stated that he told the Plaintiff:

A. I said - we said we didn't need to go down. We could finish the shoot at the top of the location. We then said that we had done this numerous times, and knew the location very well, and then she said she would go down with us. [176]
176. T 164.45-.48.

The First Defendant stated that the Plaintiff went down first. The Second Defendant said that he didn’t think that the Plaintiff needed any assistance, as they were carrying all of her belongings and she was able to manoeuvre herself quite easily. [177]
177. T 165.04-.14.
At that point they proceeded in a southerly direction for about 25 metres, to a point where there is a stake in the rock bed, described as a big industrial nail, which had a chain and a rope attached to it. [178]
178. T 165.18-.29.
At this point where the stake/nail and chain were said to be located the Second Defendant described a further conversation with the Plaintiff in which he claimed to have repeated himself. The transcript records:

Q. So, what did you say at that point?
A. I said that she - we could finish the shoot up here, we didn't have to go down if she didn't want to.
Q. So, you repeated yourself?
A. Yes, and we said that we had done this track before and we knew the track, but if you didn't want to do it, and if you feel uncomfortable, as we said the whole way down, if you feel uncomfortable and don't want to do anything, just let us know. [179]
179. T 165.40-.48.

The Second Defendant stated that the Plaintiff said to this “I should be fine”. [180] He then stated that he took all of his and the Plaintiff’s belongings and abseiled down the rope. The Plaintiff then followed him, during which Mr Bell “offers her a hand” as she traverses down. Mr Bell then abseiled down with the rest of the equipment. [181]
180. T 165.50-166.01.
181. T 166.06-.10.
The Second Defendant described the abseil point as approximately 10 metres. [182] When they got to the bottom, he stated that there was another conversation, as follows:

A. We regathered everything, and we said to Michelle that, "The hard part is done, now we're on the rock shelf. We're going to take some photos here, and then we're going to get to the further rock pools that are out, but also, please - like, be careful, and it's slippery down here, it's a rock shelf. There's - it's a tidal rock shelf, so on high tide, it's undercover, it's slippery, so be careful, and if you need a hand at all, let us know". [183]
182. T 166.12-.16.
183. T 166.23-.28.

The Second Defendant acknowledged that at the abseil point, there is a rope and a chain, and that there was a chain on the day because he had done the abseil many times and the chain had been there for years. [184]
184. T 173.11-.42.
In cross-examination by Counsel for the Plaintiff, the Second Defendant stated that he did not recall the Plaintiff at the abseil point saying that she did not want to do it. [185] He acknowledged that he stated “Tyler and I have done this many times before, you’ll be fine”. He added:

A. We weren't encouraging her. We told her that she didn't have to do it if she didn't want to. Obviously anybody in a situation of risk thinks about something, we just told her that we’d done it before, that we knew the path down there and we told her that she didn’t have to. We said we could continue the shoot up the top and finish it there. [186]

Tyler Bell

185. T 174.32-.34.

186. T 174.43-.47.

Mr Bell stated that after walking about another 10 to 20 metres, they came to the top of the cliff with the rope and chain. Mr Bell was asked whether there was any other part of the cliff where they had to get down to get to the rope. He stated:

There’s like a – a – just same as the part before. Just a little bit of rocks and shrubs and just like a little track, so quite – yeah. [187]
187. T 185.05-.06.

Mr Bell described the stake in the ground as being there for “many, many years”, to which the rope and chain attaches. [188] He stated that a conversation occurred between them as follows:

We said that - I said that I've done this before and I was comfortable with it but, of course, if Michelle didn't want to do this, it was completely fine and that we could just stop, go somewhere else. [189]
188. T 185.11-.14.
189. T 185.22-.24.

He described the Plaintiff as stating that she was fine with it. He could not remember if she said anything else. [190]
190. T 185.27-.30.
Mr Bell stated that the Second Defendant told the Plaintiff similar things, namely that if she was uncomfortable, she didn’t have to do it and they could stop, but also that he had done it before. [191]
191. T 185.32-.34.
They then proceeded to go down, the Second Defendant going first with the Plaintiff’s belongings. The Plaintiff then went down by herself, followed by Mr Bell. [192]
192. T 185.36-186.01.
It was put to Mr Bell in cross examination that the Plaintiff told him at the top of the cliff, “I don’t want to go down there I don’t want to do this.” He rejected that this was said. [193] He accepted that both he and the Second Defendant told the Plaintiff, “Don’t worry, we’ve done this many times before, you’ll be fine”. [194] He conceded that he said those words because the Plaintiff had raised some level of fear in what she said at the top of the cliff, but stated that the Plaintiff didn’t say that she didn’t want to do it. [195]
193. T 187.13-.16.
194. T 187.18-.20.
195. T 187.22-.25.

Journey Thereafter

Plaintiff

The Plaintiff stated that after descending the cliff they were down of the lower rock shelf and proceeded to walk in a southerly direction towards the pool. At first she stated that she didn’t see any rock pool. [196] Subsequently, she came to concede that she had photos taken in the rock area. The photos were tendered as Exhibit 6 although the Plaintiff maintained that she had no recollection of being in the area depicted. She accepted that the photos were taken before the fall. [197]
196. T 98.31-.39.
197. T 98.41-.43; T 114.39-115.01.
The Plaintiff accepted that she could have been there for approximately 15 minutes. [198] She stated that she could not recall whether the Second Defendant asked her to go around to another set of pools adding that she was just following. [199]
198. T 141.39-.44.
199. T 141.46-142.02.
Exhibit 1 was tendered subject to a restriction under section 136 of the Evidence Act 1995 (NSW), [200] that it be used to understand the area navigated by the Plaintiff. [201]
200. Hereinafter referred to as the “1995 Act”.
201. T 104.43-105.27.
Photos in Exhibit 4 were tendered (subject to the restriction that it be used to understand the Plaintiff’s evidence) which the Plaintiff accepted looked something like what occurred on the occasion in question. [202]

Second Defendant

202. T 112.05-.39.

The Second Defendant stated that after descending the cliff they walked in a southerly direction to a rock pool where the tide washed in and out on the rock shelf, where one or two photos were taken. [203] He described being there for five to ten minutes. After doing this, he and Mr Bell had a another conversation with the Plaintiff as follows:

Q. And then you had a conversation about where to go to next?
A. Yeah. So, after that, we had a conversation that this was not the initial rock pool that we intended to go to. There's further rock pools around the rock ledge, and that - like, we were going to go there, and she was fine with that. She agreed to that-— [204]
203. T 166.30-.49.
204. T 167.01-.05.

The Plaintiff was stated to have said, “Okay cool, like, let’s go”. [205]
205. T 167.08.
They then got back up on the ledge, and continued to walk in a southerly direction around to the point of the accident. He stated that the area in question changes frequently in height along the way but didn’t recall it being much higher than four metres. He described the ledge as being maybe two metres wide most of the way but as they reached the accident point it narrowed. [206] He acknowledged that they were still carrying the Plaintiff’s belongings and whilst they were walking, Mr Bell was leading, with the Plaintiff in the middle, and he was then walking behind her. [207]
206. T 167.19-.22.
207. T 167.24-.26.
The Second Defendant did not accept that after the abseil point when he said that the hard bit is over, he was reassuring the Plaintiff that it was plain and easy sailing from there to the rock pool. [208] He said he wished to convey that the hardest bit was over but there still was a risk in a slippery rock shelf as discussed earlier. [209]

Tyler Bell

208. T 175.14-.19.

209. T 175.21-.26

After abseiling Mr Bell stated that they then had a conversation that they were going to keep walking to the next location, where there was a rock pool. More shots were taken at this location. [210]
210. T 186.10-.18.
Mr Bell stated that there was then another conversation as follows:

A. Yes. We said, "Over there, you can see the final destination. It's a bigger rock pool that is very, yeah, photogenic." [211]

211. T 186-22-.23.

The Fall

The Plaintiff

The Plaintiff stated that thereafter, they began walking across rocks, which led them to a narrow ledge approximately 30cm wide.
She described a rock on top hanging out over where they were walking, so she had to dodge the rock to get around it. [212] The Plaintiff stated that the rock that was sticking out was high or hip height. [213]
212. T 43.35-.48.
213. T 44.05-.13.
At that point, the Second Defendant was ahead of her and Mr Bell was behind her. She stated that both the Second Defendant and Mr Bell said “Just watch out for that slippery patch”, and that as she tried to dodge that, she lost her footing and slipped sideways and fell about 4 metres. [214] She thereafter fell off the rock platform, over 4 metres, onto rocks below. [215]
214. T 44.26-.29.
215. T 44.31-.32.
She said that she walked for approximately five to ten minutes along the area depicted in the blue line in Exhibit 2, and at the point where the blue dot was, she tried to dodge the rock that was hanging out and that’s when she fell. [216] She accepted that the photo in Exhibit 2 depicted basically the line she travelled from the bottom of the rope to the point where she fell. [217]
216. T 101.40-.43.
217. T 101.45-.102.01.
In cross-examination the Plaintiff maintained that that at the time she thought that the Second Defendant was in front of her. [218] She reiterated that she recalled one of them saying that there was a slippery patch but she could see that for herself. [219]
218. T 114.13-.24.
219. T 114.26-.33.
She acknowledged that walking along rocks on the sea shore can be slippery and that there was a risk that she could slip. [220] She accepted that there was a risk she could injure herself when walking on rocks. [221]
220. T 115.39-.49.
221. T 116.01-.03.
The Plaintiff conceded that she got back onto the ledge, and that she believed that the Second Defendant was walking in front of her. [222] She acknowledged that she was in the middle between the Second Defendant and Mr Bell. [223]
222. T 142.07-.09.
223. T 142.11-.18.
The Plaintiff conceded that Mr Bell, who could have been in front of her, said “Be really careful, it’s slippery”. [224] She then stated that she was trying to dodge the other rock, and then lost of footing and fell. [225]
224. T 142.26-.30.
225. T 142.32-.35.
Her evidence was:

Q. What happened next?
A. We began walking across the rocks which led us to where we reached this little ledge, this narrow ledge and there was this rock on top that was hanging out so I was walking about here and the rock was just there, so I had to dodge the rock to get around.
Q. The transcript will have difficulty with that, so we’ll take it little bit by little bit.
A. Okay. Sorry.
Q. That’s okay. You were walking on a ledge. At first, roughly, how wide was the ledge?
A. It would of been probably about that.
HIS HONOUR: 30 centimetres.
GOODRIDGE
Q. Did the ledge get narrower than that or wider than that as you went along?
A. It was the same around, yes.
Q. When you came to this rock that was sticking out, first of all, how high off the ledge was it sticking out? Did it come right down to the ledge or did it stick out at knee height or shoulder height or higher or what are you talking about?
A. I’m talking about maybe – can I step up again so I can
Q. Yes, of course.
A. It was about up to here.
GOODRIDGE: Top of the thigh height, hip height, I suppose.
Q. At this point, was anybody ahead of you on the ledge or were you the leader on the ledge at this point?
A. No, someone was ahead of me.
Q. Who was ahead of you?
A. Kane.
Q. What happened when you got to this rock that was sticking out making the ledge
A. I--
Q. Affecting your path on the ledge.
A. So, there was a slippery patch on this rock. Kane and Tyler both said to me, “Just watch out for that slippery patch”. As I was trying to dodge that, that’s when I lost my footing and I slipped sideways and fell four metres.
Q. You fell onto rocks at the
A. Yeah, rock bottom. [226]
226. T 43.35-44.32.

The Plaintiff stated in re-examination that she felt she needed the experience and needed photos to build up her portfolio with hope to progress in the industry. [227] The Plaintiff admitted in evidence that she had previously done some modelling photo shoots on rocks on the beach, as demonstrated in photos tendered in Exhibit 5. [228] She added that on none of the previous occasions was she required to climb down dangerous cliffs or walk down slippery ledges. [229] She stated that the photographs taken in these types of shoots would be supplied to the First Defendant, and then forwarded to her in order to build up her portfolio. [230] She stated that the photographs would then be selected for use on the First Defendant’s website. [231]
227. T 145.40-.43.
228. T 113.05-.33.
229. T 144.32-.35.
230. T 144.44-.48.
231. T 144.50-145.03.
She accepted that when walking along rocks along the seashore they could be slippery, that it is something that had to be looked out for and that the rocks change with every step. [232] The Plaintiff further accepted that as a result of slipping when walking around rocks, there was a risk that she could injure herself. [233]

Second Defendant

232. T 115.39-.49.

233. T 116.01-.03.

When asked to describe what happened in the moment before the Plaintiff fell, the Second Defendant stated:

A. Tyler goes first, and we've got her on either side, and Tyler goes first, and there's a slippery spot on the ground, and you can see it quite clearly that it's black moss, and Tyler turns around and says to Michelle, "It's slippery, watch out", and she - as he says that, pretty much she takes her step and has a fall. [234]
234. T 167.43-.47.

After the fall occurred, the Second Defendant stated that they ran as fast as they could to where they could access the rock ledge. He stated that from there, Mr Bell stayed with the Plaintiff to comfort her, while he ran south looking for phone reception to call triple-0. [235]
235. T 167.49-168.28.

The Second Defendant accepted that besides Mr Bell telling the Plaintiff as she reached the accident point that there was a slippery patch, there was no other warning given of the slippery patch. [236]
236. T 175.28-.33.
The Second Defendant conceded that he had never taken any models down to the point where the accident happened. [237] Nevertheless, he maintained that he had been down there on “many occasions” previously, describing that he had been down there at least 4 times. [238]
237. T 180.48-.50.
238. T 181.01-.10.
The Second Defendant stated that whilst he had sneakers, gym boots or something like that, at the time he was traversing the area, he ended up taking them off. This was so as he liked to go bare feet as you have more grip or control. [239] However he conceded that he was wearing shoes which “he’d say” didn’t have much grip on them. [240] Notwithstanding this, he accepted that Mr Bell was photographed wearing gym boots. [241]

Tyler Bell

239. T 180.01-.09

240. T 180.17-.18.

241. T 179.44-.46. See also Exhibit F, Photographs of Tyler Bell.

Mr Bell stated that they proceeded to walk along, until they reached a point where they had to scale back up the rocks, which was “quite skinny”. [242] He went first, followed by the Plaintiff, and the Second Defendant behind her. The Plaintiff at that point had nothing in her hands, and they were holding her belongings. He stated that he stepped on a slippery step, and looked over his left shoulder and said to the Plaintiff “Watch out, Michelle, this bit is slippery”. At that point, the Plaintiff took her step and slipped off the edge. [243]

Findings

242. T 186.26-.28.

243. T 186.30-.35.

Reliability of witnesses

I accept that the Plaintiff generally did her best to describe the events as she could recall them. It is clear, however, that the accuracy of her recollection of events at times fell short. In particular, her recollection of the journey undertaken with the Second Defendant and Mr Bell was such that she could not recall walking along or seeing the wooden steps or seeing the sign both depicted in Exhibit 2D1. She didn’t recall descending rocks to get to the stake/nail. At the point where it is said the steel stake was, she stated there was no chain and she did not abseil at the point depicted, which appeared to be approximately 10 metres. She had estimated the abseil to be approximately 1.7 metres. The Plaintiff responded that she would not have climbed down the longer distance. The Plaintiff couldn’t recall the second bunker marked on Exhibit 2. Nor did she recall it being suggested to her that she did not need to go to the rock pools or whether she was happy to keep going.
At the point before she descended, the Plaintiff initially in cross-examination did not respond when it was put to her that she was told “you don’t have to do this.” [244] Subsequently, she stated she could not recall whether she was told “we don’t have to do this because we can finish the photoshoot at the top of the stairs.” [245] The evidence of the Second Defendant stating that this is what he said was not challenged. [246]
244. T 139.41-.42.
245. T 139.47-.49.
246. T 174.36-175.05.
After descending the cliff the Plaintiff could not recall seeing any rock pool. However, she subsequently came to concede that photographs had been taken at the rock pool, although she could not recall it. [247] The photos in question were Exhibit 6.
247. T 98.31-.39 and T 114.39-115.30.
As they approached the point where the Plaintiff occasioned her accident she stated she recalled the Second Defendant leading and Mr Bell behind her. At one point she stated both of them warned her of the slippery patch, [248] and at another point Mr Bell did. The Second Defendant and Mr Bell maintained that it was the latter that was leading the Plaintiff and gave her the warning. [249] Their evidence in this regard was not challenged.
248. T 44.27-.29.
249. T 167-.44-.47 and 186.31-.35.
Overall, I am satisfied that the evidence of the Second Defendant and Mr Bell was more reliable.
Neither the Second Defendant nor Mr Bell were challenged as to what their account of what was said to the Plaintiff as to the journey to be embarked on, its description of the journey as “treacherous” and the advice that if the Plaintiff didn’t want to do anything she didn’t have to. The Second Defendant’s account that the Plaintiff responded “fine” was also not challenged.
The Second Defendant’s evidence at the first gun turret advising the Plaintiff that if she didn’t want to do anything or if she felt uncomfortable and that if she needed a hand down in any way shape to let them know was also not challenged. Nor was Mr Bell’s evidence that after the first gun bunker shoot location the Plaintiff was advised that they were going to the second bunker and if she felt uncomfortable at any time they could stop and not continue.
I accept that the Plaintiff must have traversed the wooden stairs and passed the sign earlier referred to as well as the second gun turret. The evidence of the Second Defendant is that that sign was located prior to the second bunker. I accept that as being more reliable than Mr Bell’s statement to the extent which he suggested that the sign was before the first bunker shoot location. There was no challenge to the Second Defendant’s account and it accords with the content of the sign being referable to the cliff descent. Mr Bell indicated that en-route to the second bunker, the Plaintiff was again advised that if she felt uncomfortable at any time they could stop. He was also not challenged in this regard.
Nor was there any challenge to the Second Defendant’s evidence that after the sign the Plaintiff was told that the path was more treacherous and that if she wanted to turn around or felt uncomfortable to let them know and that she advised that she was fine.
I accept that the area that was abseiled was the vertical cliff depicted in Exhibit 4 which at the time had a steel spike, chain and rope with a descent of approximately 10 metres.
I further prefer the evidence of the Second Defendant and Mr Bell in respect of the communications they describe as having with the Plaintiff at the rock ledge and abseil point. Their recollection appeared to me to be honest, reliable and generally consistent, although Mr Bell did not give an account of any conversation on the rock ledge.
The Plaintiff stated that she advised that she did not want to go down the cliff. Neither the Second Defendant nor Mr Bell recall this and I am not satisfied it was said. However, I accept that the Plaintiff exhibited some signs of apprehension. I accept that the Plaintiff was told that if she didn’t want to descend she didn’t have to and the photo shoot could continue where they were. Further, I accept that the Second Defendant and Mr Bell told the Plaintiff that they had been down “many times before” and told the Plaintiff “you’ll be fine.” I also accept that the Plaintiff said at some point “I should be fine.” That is consistent with the Plaintiff’s own desire and passion to complete the assignment and obtain the photography. It is also consistent with Mr Bell’s evidence describing the Plaintiff as “fine with it.”
I accept the Second Defendant’s account of what he says he told the Plaintiff after the descent down the cliff. The Second Defendant was challenged on the basis that he was reassuring the Plaintiff that it was “easy sailing to the rock pool “and that he was encouraging the Plaintiff to go over to the rock pools. The Second Defendant maintained, however, that what he communicated was that there was a risk involved in a slippery rock shelf. I accept his evidence in this regard.

Footwear

Central to the Plaintiff’s claim was that the fall occasion was as a consequence of inadequate footwear and warning.
The Plaintiff submitted that she had no opportunity to wear shoes with such grip such as gym boots or high tread hiking shoes, and drew attention to the fact that Mr Bell did not fall and that he was wore gym boots whilst the Plaintiff was barefooted. The Plaintiff submitted that choosing appropriate footwear and expressing opinion on appropriate footwear is an ordinary occurrence and a common sense approach to the evidence was appropriate. It drew attention to the unchallenged evidence of the Plaintiff as to how the accident occurred and contended that an application of inferential reasoning would lead the Court to a finding of negligence. Reliance in this regard was placed on the decision of the High Court in Fuller-Lyons v New South Wales. [250]
250. (2015) 89 ALJR 824; [2015] HCA 31.
The Defendant contended that:

POLIN: The footwear, your Honour, at the time of the incident, the plaintiff was in bare feet. There’s no evidence before the Court as to what is meant by appropriate footwear. There’s no evidence that any particular sort of footwear would have led to a likely reduction in the coefficient of friction between - I mean, the only thing I could think of and I’m just guessing, that rock fishermen might wear spikes of some sort but the actual only evidence your Honour has was from Mr - one of the two, I thought it was Mr Bell, it might have been the second defendant - that in fact he took his shoes off because he found that bare feet gave--
HIS HONOUR: Yes, I remember that.
POLIN: --better grip. Your Honour would be just speculating to suggest that she should have been told to wear a particular type of shoe and that would have meant that she didn’t slip on this particular rock so that just goes nowhere. The fact of the matter is, the Courts have said shoes, no shoes, everyone knows that rocks by the seashore can be slippery. So that just goes nowhere, the question of footwear. So that at its highest, rather than just that it could have been you’re going to some rock pools at North Head, you’re going to take a track down there. [251]
251. T 222.41-223.10.

In CSR Ltd v Adecco (Australia) Pty Ltd, [252] in the context of assessing whether the primary judge ought to have inferred an implied contract, McColl JA, referred to Gordon J in Re Day, [253] stating:

[86] Having regard to the significant role the drawing of inferences plays in this case, it is necessary to revisit the basis upon which an inference might be drawn, absent direct proof of a fact. In order to find a fact proved, including by inference:
[18] The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, ‘there must be something more than mere conjecture, guesswork or surmise — there must be more than ‘conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture’. An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed. [Emphasis added; footnotes omitted]

[87] The inherent unlikelihood of an occurrence of a given description is one consideration which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal. Further, “[i]n establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable.” (Footnotes omitted)
252. [2017] NSWCA 121 (Macfarlan and Simpson JJA agreeing).
253. (2017) 340 ALR 368; [2017] HCA 2.

The fact that Mr Bell wore gym boots and did not fall is of no assistance. The suggestion in submissions that it was common knowledge that gym boots have tread that supplies grip has not been established, let alone substantiated, in respect of what Mr Bell was wearing. His evidence was that he stepped on a slippery step looked over his shoulder and then told the Plaintiff to watch out as it was a bit slippery. He did not describe any other movement he took at that point and was not cross examined as to his movements. The Second Defendant stated that the area was black moss that was quite noticeable. Further, the Second Defendant provided evidence that he took his shoes off, which he described as sneakers, as he found it gave him a better grip. [254] It is acknowledged that he stated that he was as skateboarder, the bottom of his shoes wear out and that he’d say that that he was wearing shoes without much grip on them. His answer as to his shoes not having much grip on them was wearing was equivocally expressed.
254. T 180.01-03.
The Plaintiff’s evidence was that she was trying to dodge the rocky outcrop, and the slippery patch lost her footing and slipped sideways and fell about 4 metres. In this way it is not apparent that the movement of the Plaintiff and Mr Bell were identical.
In Swain v Waverley Municipal Council,[255] McHugh J stated that as the Plaintiff bears the evidentiary and legal burden of establishing a prima facie case of negligence, the Plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the Plaintiff. [256] His Honour proceeded to state that the alternative system should be described in sufficient detail to enable the decision maker to contrast it with the Defendant’s system, or to assess its advantages or disadvantages, or to say whether or not it would have practicable and reasonable for the defendant to adopt it. [257]
255. (2005) 220 CLR 517; [2005] HCA 4. While McHugh J was in dissent, these comments have been adopted in a number of cases: see Southern Colour (Vic) Pty Ltd v Michael Parr [2017] VSCA 301 at [58]; Greater Shepparton City Council v Clarke (2017) 56 VR 229 at [108]-[110]; Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd (No 6) and Anor [2015] NSWSC 341 at [93].
256. (2005) 220 CLR 517 at [40] per McHugh J, citing Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 364 per Dixon CJ, 369-70 per Taylor and Owen JJ; Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J; Kingshoot v Goodyear Tyre & Rubber Co Australia (No 2) (1987) 8 NSWLR 707 at 725 per McHugh JA.
257. (2005) 220 CLR 517 at [43] per McHugh J, citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J.
There was no detail in the Plaintiff’s pleadings or opening beyond the description of appropriate footwear. In submissions the suggestion was made of gym boots or hiking boots. Bearing in mind the nature of the evidence as to the surface traversed, the Plaintiff called no evidence that this or any other footwear would have reduced or prevented the risk of harm that arose. Contrary to the submission made, this is not a matter of common knowledge. [258]

Section 5F and 5L of the Civil Liability Act 2002 (NSW)

258. Neill v NSW Fresh Food & Ice Co Pty Ltd (1963) 108 CLR 362 at 370-71 per Taylor and Owen JJ; Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 at [121]-[122] per Basten JA (with Ward and McColl JJA agreeing).

The Defendants’ relied on section 5F and 5L of the Civil Liability Act 2002 (NSW). [259] I accept the submission that as this could potentially be complete answers to the Plaintiff’s claim it should be considered the ahead of the question of the alleged breach of duty of care. [260]
259. Hereinafter referred to as “the 2002 Act”.
260. Goode v Angland [2017] NSWCA 311 at [185] applied in Singh v Lynch [2019] NSWSC 1403 at [65].
The Defendants argued that whether a risk was obvious was determined objectively in accordance with s 5F of the 2002 Act. It submitted that the question is answered by reference to whether the risk in the circumstances would have been obvious to a reasonable person in the position of the Plaintiff exercising ordinary perception, intelligence and judgment. That was the position at common law. [261]
261. See Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] Aust Torts Reports 81-754; [2004] NSWCA 247 per Tobias JA at [161].
Obvious risk is defined in s 5F as follows:-

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

That definition applies to Part 1A, Division 5 of the 2002 Act. [262]
262. S 5K of the 2002 Act.
Section 5G presumes that an injured person is aware of obvious risks:-

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

Section 5K of the 2002 Act provides definitions in the context of Division 5 of the 2002 Act as follows:-

In this Division:
dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.
obvious risk has the same meaning as it has in Division 4.
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.

Section 5L provides the relevant defence that the First Defendant relies on. It provides:-

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.

Section 5L mandates that a Defendant is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged by the Plaintiff.
The Defendants acknowledged that to make out a s 5L defence, it was required to establish the following:-

The Plaintiff was engaged in a “recreational activity”;

The recreational activity was “dangerous”;

That there was a “risk of that activity” which was an “obvious” risk (a risk that would have been obvious to a reasonable person in the position of the plaintiff); and

That the harm suffered by the plaintiff was a result of the “materialisation of that obvious risk”.

In identifying what risk should be regarded as having a materialised cause of injury to the Plaintiff, the Defendants submitted that the relevant “risk” is not to be defined too narrowly. So much must be accepted by the breadth of the definition contained in s 5G of the 2002 Act and the cases which have come to apply it. [263]
263. See Singh v Lynch [2019] NSWSC 1403 at [66]-[72] and Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 per Lynn JA at [108]-[122].

Recreational Activity

The Defendants contended that the Plaintiff was involved in a recreational activity as defined in s 5K(c), in that she was involved in a pursuit or activity in terms of going to a photo shoot at the rock pools; [264] being 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.
264. T 201.21-.22.

The Plaintiff gave evidence that after the accident she was discharged from hospital from 4 December 2015 in a wheelchair, and remained in that wheelchair for a period of 3 months. During that time she undertook some physiotherapy and hydrotherapy but was, however, confined to that wheelchair except when using a walking frame and crutches.
The Plaintiff gave evidence that prior to the accident she did her proportion of the cooking, cleaning and washing in the family home. [464] In the 3 months post-accident, she described that she did not do any washing during that period, and that it was done for her by her mother. [465] She did, however, clean her room. [466] The Plaintiff stated that she also did not do any cooking. She also stated she needed assistance with her personal care for longer than a period of 3 months. [467] She stated that overall the assistance was required for a good 7 months. [468] After a period of 6 months she was able to do her own bathing and caring for herself. [469] She was also able to do her own washing and cleaning as necessary, [470] as well as her own cooking. [471] At 2 years prior to giving evidence she stated that she still needed to sit down after walking on her feet. [472]
464. T 51.40-52.32.
465. T 52.47.
466. T 53.01-.04.
467. T 50.37-.39.
468. T 60.26-.29.
469. T 53.14-.17.
470. T 53.19-.20.
471. T 53.22-.23.
472. T 53.25-.31.
Overall, I accept the Defendant’s submission that there was no evidence as to the actual hours the Plaintiff needed assistance following the accident. Precision in these circumstances is impossible, and the matter is largely one of impression. [473] Whilst there is no evidence of the actual hours that the Plaintiff needed assistance immediately after the accident, I accept that the provision of 7 hours a week for 12 months is reasonable. Based on 1/40th of average of weekly earnings of the relevant period, I will allow a sum, comprised as follows:

4 December 2015 to 20 May 2016 (24 weeks) for 7 hours a week at $29.41 per hour, with a subtotal of $4,940.88

21 May 2016 to 18 November 2016 (26 weeks) for 7 hours a week at $29.98 per hour, with a subtotal of $5,456.36

19 November 2016 to 3 December 2016 (2 weeks) for 7 hours a week at $30.15 per hour, with a subtotal of $422.10

I would grant a total of $10,819.34.

473. Werne v Krahe [2002] NSWCA 168 at [27] per Foster AJA (with Hodgson JA agreeing); McConachie (t/as Willancorah Pastoral Company) v Pack [2004] NSWCA 148 at [20] per Stein AJA (with Hodgson and Bryson JA agreeing); IAG Ltd T/as NRMA Insurance v Zahed [2015] NSWSC 657 at [31] per R S Hulme J; Zahed v IAG Ltd (t/as NRMA Insurance) [2016] NSWCA 55 at [34] per Emmett AJA (with Meagher and Leeming JA agreeing).

I accept the Defendant’s submission that there is no evidence supporting a need for future domestic assistance. I further accept the Dr Rowe’s evidence that the Plaintiff does not require any personal assistance at this stage and should not require any in the future. I note that the Plaintiff indicated to Dr Rowe that she does not require any domestic assistance and is able to assist in all domestic chores subject to the qualifications she gave in her evidence.

Economic loss

The Plaintiff

The Plaintiff gave evidence that shortly before the accident she had been signed up to go to South Korea on a contract for three months. She stated that her plans were to go and stay for three months to see how much work she could get over there, with a view to work out from there. [474] She clarified that “out there” was a reference to Asia generally. [475] Her back up plan was to come to back to Australia and see if she could pursue a career in Australia. [476]
474. T 54.41-.46 and T 130.47-131.01.
475. T 55.04-08.
476. T 55.10-.19 and T 131.03-.09.
The circumstances in which that opportunity arose were that on 1 October 2015, Plaintiff wrote an email to “Nicola Atwa” from the First Defendant stating that:

I’m really concerned at the moment as I am not getting any work! I haven’t for nearly 3 weeks now.
I have no braces and my hair colour has changed, so just wondering why I’m not getting chosen for anything. [477]
477. Exhibit 10.

Ms Atwa, the head booker at the woman’s desk of the First Defendant responded, stating:

It’s a very quiet time of year in Sydney. Everyone is on school holidays for the past two weeks and there is a long weekend this week, so I think that is why it’s been quiet recently.
Very few models make a full time living in Sydney, they either have part time jobs or they travel abroad to the bigger markets.
If you feel ready to start travelling this is something we can look at for you. I would need for you to come in and do some digitals and videos so I can propose you to agencies. [478]
478. Exhibit 10.

On 26 October 2015, Catherine McGill from the First Defendant wrote to the Plaintiff, stated:

Hi Michelle
Well, Korea looks like it’s confirmed. Yay!
Can you please send me a scanned copy of your passport-the page with your picture and all the details on it.
They are happy to take you for 3 months from beginning January so you get to spend Xmas and New year here. As I mentioned, we have been able to negotiate a USD$2K minimum guarantee per month with them (that is what you will get in the hand after all your expenses are taken out).
Esee in China are still interested but I asked them to confirm their minimum guarantee offer and it is USD$2K for the 60 day contract AND they want you from the beginning Dec until Feb 8. This overlaps with Korea and the money isn’t as good.
Still a good option for future though, so I am going to go back to them and say you’re going to be in Korea at that time but we’d love to keep in touch for possibilities next year after that.
Catherine xx [479]
479. Exhibit E, Email from Catherine McGill dated 26 October 2015.

The Plaintiff conceded that the Korea job was floated after she had complained to the First Defendant that she was not getting work, but added that she was looking forward to going to get the experience as well as seeing how much work she could get over there. [480] Exhibit 10 was tendered as evidence in relation to the Plaintiff’s interest.
480. T 131.11-.18.
The contract was ultimately afforded to the Plaintiff on 27 October 2015 and arrangements had been made with the Plaintiff to arrive in South Korea on 4 January 2016 with a departure date of 2 April 2016. [481]
481. Exhibit E, Email from Catherine McGill dated 2 November 2015.
In cross-examination it was put to the Plaintiff that she had not been making a lot of money out of modelling at that stage; she accepted this was so. [482] The Plaintiff conceded that she had at that point been to 16 foreign agency shoots including in New York, Japan and Milan. [483] She conceded that done casting in Paris, Hong Kong, Germany, Miami and Milan and had not gotten any work overseas. [484] She was not aware whether she had been proposed for other modelling agencies overseas by the First Defendant. [485] She conceded the position in South Korea was only for a three month period. She acknowledged that there were discussions of her possibly going to China for 2 months after Korea, but indicated that that was up to the First Defendant, but she was willing to take that on as well. [486] She was not aware of how much she was going to be paid if she went to China. [487]
482. T 130.47-.131.01.
483. T 132.01-.09.
484. T 132.11-.16.
485. T 132.26.-28.
486. T 132.45-.47.
487. T 132.49-133.01.
The Plaintiff stated that while she was not earning a lot of money from modelling even with the Korean contract, modelling was her passion and her dream job which had unfortunately been cut short. She did not see herself getting back into it again after the accident. [488]
488. T 133.05-.09.
The Plaintiff stated that after the accident, and her recovery, she initially did around 2 hours of voluntary work per week to try and get out of the house, and after that she did a Certificate III in Early Childhood. She stated that she now worked with the Little Diggers School in Collaroy Plateau, working 3 days per week for 10 hours a day. The Plaintiff stated that she did not believe that she could work beyond that. [489] Payment summaries tendered in the Plaintiff’s case indicated that she commenced at the Little Diggers School on 15 May 2018. [490]
489. T 133.36-.49.
490. Exhibit D, Tab 20 at 122; Exhibit D, Tab 21 at 123..
The Plaintiff explained that she was more interested in doing modelling work, as childcare was not her passion. Modelling was what she had always wanted to do, even if it was a short career, irrespective of whether there was money in it or not. [491] She stated, however, that she would have needed a second job.
491. T 134.08-.17.
The Plaintiff stated that she had not considered doing administrative work, as even sitting down, her legs and feet get stiff. [492] She admitted that if the job enabled her to stand up from time to time she would probably do it, but that’s not something that she wanted to do. [493]

Ms Priscilla Leighton-Clark

492. T 134.18-.26.

493. T 134.28-.31.

Tendered in the Defendant’s case was a report prepared by Ms Priscilla Leighton-Clark, Director of Priscilla’s Model Management Pty Ltd dated 8 August 2019. [494] That report was produced on the assumption that the Plaintiff joined the First Defendant in June 2012, whereas it was accepted on the evidence that she commenced in April 2011. [495] Secondly, Ms Leighton-Clark proceeded on the assumption that the Plaintiff had over that period (June 2012 – November 2015) been cast in 16 paid jobs, and received a total billing of $7,418.33 gross.
494. Exhibit 14, Report of Ms Priscilla Leighton-Clark.
495. Exhibit A; T 37.10-.41; T 68.38-.40.
Ms Leighton-Clark stated that the Plaintiff had met 16 foreign agencies in person with the view to them representing her overseas, and none of her agencies confirmed her. She states that the First Defendant had proposed her via email to 14 foreign agencies, only About Models in Korea confirmed that they wanted to represent her. Ms Leighton-Clark acknowledges that the Korean trip would have provided the Plaintiff with experience. She describes that a 10% agency fee paid to the First Defendant is consistent with industry practice, but notes that the contract attached to her report stated that the agency advances the cost of initial expenses to the model and deducts her actual costs from her gross earnings. Ms Leighton-Clark expresses the opinion that in the circumstances the trip to Korea would have been ill-advised given the noted costs. [496]
496. Exhibit 14, Report of Ms Priscilla Leighton-Clark at 4.
Ms Leighton-Clark describes that a “successful model” was one who has been scouted during her school years, who after finishing Year 12 and undertaking work experience with an agency, works for young labels and works their way up to established, high fashion labels and campaigns. A “busy model” she described as a person who has constantly been employed and enjoys a sustainable income across a variety of clientele. Ms Leighton-Clark expresses the view that in her opinion, the Plaintiff could have an expectation that her career experience would have remained the same. Specifically, she notes that it is very hard for a model to maintain consistent work unless the model has experienced commercial success in the earlier stages of her career.
In conclusion, Ms Leighton-Clark opines:

It is my considered opinion that this model would not have had a fruitful career. The age at which she started modelling and her gross earnings over three years do not indicate to me that she would have had a successful or busy career as I have defined above.
Due to my years of experience, I can predict whether a model will do exceptionally well, providing that the chosen models follow our advice. This does not always happen.
It is my opinion and based on the assumption that the model had stayed at Vivien’s, she could have an expectation that her career would have continued at the same level for the same wages for the next three years, based on the material provided to me, if not for the accident. Based on the information provided, it is my opinion that she also couldn’t expect to earn money that would sustain her, as her only occupation. This is demonstrated in the fact that this model was introduced to 15 agencies and only had one take-up.
In my opinion, China and Korea are not markets that I would sustain a model’s career unless she relocated to these markets for the duration of her career. This because (in my experience) the models don’t make enough money to cover their costs and other living expenses for the short period of time specified in the contracts. In my opinion, these are not considered beneficial modelling markets for a girl who wants a promising career. [497]
497. Exhibit 14, Report of Ms Priscilla Leighton-Clark at 4-5.

Ms Leighton-Clark states that based on the information provided to her, taking into account the money the Plaintiff had earned in the three years prior to the accident, her expectations would be that she would earn similar gross earnings for the next three years if not for the accident. In her opinion, the Plaintiff would need to include a part-time modelling career plus regular, paid employment. Ms Leighton-Clark expresses the view that had she represented the Plaintiff, she would be compelled to discuss that considering the money she had earned previously, she would have been better suited to some other form of employment.

Submissions

The Plaintiff has claimed past economic loss from 18 November 2015 to date, based on average weekly earnings less her actual current earnings (from 15 May 2018 onwards).
The Plaintiff’s tax records shows that income that the Plaintiff received from modelling as follows: [498]

Year ending June 2014: $1300

Year ending June 2015: $4634

Year ending June 2016: $2759
498. Exhibit D, Tabs 16-20.

The Plaintiff contended that in fact she had done 24 paying jobs in modelling and if the additional income not included in the list provided in the report of Ms Leighton-Clark were added, the total would have come to approximately $10,814.80.
There is no evidence of earnings in the 2017 year although earnings recommenced in 2018.
These were summarised in the Plaintiff’s economic loss schedule based on the Plaintiff’s pay slips as $574.46 net per week from 15 May 2018 to date.
The Plaintiff contended without elaboration, the opinion of Ms Leighton-Clark as to the Plaintiff’s future prospects could not be readily understood given the statements made by the First Defendant in Exhibit E. Further, it was submitted that notwithstanding Ms Leighton-Clark’s view, the Plaintiff had given evidence that she was prepared to relocate to those markets for the duration of her career. [499] The fact, was that the Plaintiff was she was going to go to South Korea for three months and see how much work she could get in Asia generally. At that stage, however, it is clear that she did not have a back-up, noting that jobs are not always reliable.
499. T 54.47-55.02.
The Defendant accepted that the figure for past earnings which was utilised by Ms Leighton Clarke might be inaccurate, and the figure ought to have been over a longer period, namely from April 2011 – November 2015. Based on the tax returns, the Plaintiff earnings were $8,683 gross from modelling. [500] The Plaintiff asserted that the figure should be $10,500.
500. Exhibit D, Tabs 16-20; T 192.07-.10; T 229.39-.50.
In short, the Defendant stated that even if the earnings were $10,500 over the period, this still equates with only $182 per month ($2 difference a month on the Defendant’s calculations) and this would not undermine the opinion that Ms Leighton-Clark expressed. [501]
501. T 229.10-.230.10.
The Defendant asserts that based on the Plaintiff’s past earnings it should be accepted that her most likely circumstances would be that she would earn similar earnings as a model of 3 years and an allowance of $10,000 should be allowed. [502]

Consideration

502. First Defendants Submissions on Damages at [10].

I accept that the variations in actual earnings compared to those on which Ms Leighton-Clark based her opinion would overall this would make little to no difference. [503]
503. T 230.10.
Whilst I accept that the Plaintiff was determined in her pursuit of modelling her limited success over the course of three years, the inability of the First Defendant to increase the opportunities domestically and the firm evidence of Ms Leighton Clark satisfy me that she could have anticipated similar earnings in the three years that followed had she sought to continue in that role.
Whilst the Plaintiff was anxious to pursue work in South Korea and China (assuming that opportunity arose) and was willing to relocate, I cannot ignore the evidence of Ms Leighton-Clarke that these are not these are not considered beneficial modelling markets for a person wanting a promising career. Nor can I ignore the other efforts to obtain work for the Plaintiff domestically and overseas that appeared not to succeed.
Having said that, I consider it unlikely that the Plaintiff would have remained overseas seeking modelling opportunities. Realistically she accepted that she needed a backup career and was prepared to return to Australia.
Overall, I would accept that an allowance of one further year based on past earnings but thereafter it is likely that she would have moved on to other pursuits. In light of the evidence, I am not satisfied that this would have included modelling, and that realistically would have been advised at that point that she would have been suited to some other form of employment.
From 18 November 2015 to 15 May 2018 is 130 weeks.
In light of the modest skills that the Plaintiff possessed, I would accept that her loss of earning capacity at the time would have been reflected in the average earnings for a female Administrative and Support Worker. Based on an earnings average of $750 net per week [504] over the period of 78 weeks and adding an amount based on prior earnings in modelling for the balance of the period I would allow $62,000 for loss of earning capacity for this period.
504. Derived from ABS statistics for female workers.
For the period from 15 May 2018 to date is an amount of 101 weeks. During this period the Plaintiff qualified in Early Childhood Education. Based on the figures supplied by the Plaintiff average weekly earnings but for the injury would have been in the vicinity of $790 net per week (totalling to $79,790 for the period). Her actual earnings were $544.46 (totalling to $54,990.46. for the period) leaving a loss of $24,800 (rounded up).
Accordingly I would have allowed $86,800 for the past. To this, I would have allowed loss of superannuation at 9.5% being an amount of $8246.
For the future the Plaintiff has claimed a loss of $220 net per week. I accept that this is reasonable and is reflective of the loss she has sustained by reason of her inability to work a full working week and having a reduced capacity on the open labour market for a person in her position. Using a multiplier of 939.7 less 15% for vicissitudes this would come to a figure of $175,723.90.
To this I would add superannuation at 11.5% being an amount of $20,208.26.
In summary the Plaintiff’s damages would have been:

Non-economic loss: $197,500

Past out of pocket expenses: $12,682

Future out of pocket expenses: $30,000

Past domestic assistance: $10,819.34

Past economic loss: $86,800

Past loss of superannuation: $8246

Future economic loss: $175,723.90

Future loss of superannuation: $20,208.26

TOTAL: $ 541,979.50

ORDERS

Accordingly for the reasons stated the orders will be.

Verdict and judgment for the Defendants on the Plaintiff’s claim.

The Cross Claim is dismissed.

Subject to any application to my Associate within 7 days to relist the matter for any further or other order as to costs:

the Plaintiff is to pay the Defendants’ costs on the Claim;

There is to be no order as to costs on the Cross Claim.

Note: Formatting and typographical errors have been amended since the Judgment was handed down on 22 April 2020.

Endnotes

Decision last updated: 07 May 2020

Medium Neutral Citation:	Nihill v Vivien’s Model and Theatrical Management; Lehanneur [2020] NSWDC 131
Hearing dates:	11, 12, 13, 20 November 2019 and 22 April 2020
Date of orders:	22 April 2020
Decision date:	22 April 2020
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Orders: (1) Verdict and judgment for the Defendants on the Plaintiff’s claim. (2) The Cross Claim is dismissed. (3) Subject to any application to my Associate within 7 days to relist the matter for any further or other order as to costs: (a) the Plaintiff is to pay the Defendants’ costs on the Claim; (b) there is to be no order as to costs on the Cross Claim.
Catchwords:	TORTS –– Negligence –– Personal Injury –– Where Plaintiff was a model under management of First Defendant –– Plaintiff attends photoshoot with Second Defendant arranged through the First Defendant –– Plaintiff suffers injury after slipping and falling at rock pools at national park –– Where s 5F and 5L of the Civil Liability Act applied –– Meaning of recreational activity, dangerous recreational activity and obvious risk –– Where s 5M of the Civil Liability Act did not apply –– Whether First Defendant breached duty of care –– Whether Second Defendant owed Plaintiff a duty of care CONTRACTS –– Breach of contract –– Where informal contract existed between the Plaintiff and the First Defendant –– Where agency relationship existed –– Terms of agency agreement and whether they were breached by failing to effect “appropriate insurance” TORTS –– Negligence causing economic loss ––Whether First Defendant was negligent in releasing Second Defendant from the obligation to have insurance –– Whether the risk that the Plaintiff would suffer economic harm as a result of a lack of insurance was foreseeable –– No duty of care on behalf of the Second Defendant –– No evidence that Plaintiff suffered harm –– No evidence as to the Second Defendant’s capacity to satisfy the verdict DAMAGES – Non-economic loss – Expenses – Economic loss – Domestic Assistance
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 2, 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5L, 5M, 15, 15A, 16 Entertainment Industry Act 2013 (NSW), s 43, Schedule 1 Clause 2 Evidence Act 1995 (NSW), s 136
Cases Cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219 Andonovski v Park-Tec Engineering Pty Ltd and Barbeques Galore Pty Ltd; Andonovski v East Realisations Pty Ltd (No 6) and Anor [2015] NSWSC 341 Astley & Ors v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Bruce v Apex Software Pty ltd t/as Lark Ellen Aged Care [2018] NSWCA 330 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Caltex Refineries (QLD) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 Campbell v Hay [2014] NSWCA 129 Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780 CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32 Falvo v Australian OzTag Sports Association [2006] Aust Torts Reports 81-831; [2006] NSWCA 17 Fuller-Lyons v New South Wales (2015) 89 ALJR 824; [2015] HCA 31 Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 Geoffrey W Hill & Assocs (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012 Greater Shepparton City Council v Clarke (2017) 56 VR 229 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Hawkins v Clayton (1988) 164 CLR 539 Hume v Paterson [2013] NSWSC 1203 Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 IAG Ltd T/as NRMA Insurance v Zahed [2015] NSWSC 657 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Le v Brydens Lawyers [2017] NSWSC 180 Lormine Pty Ltd & Anor v Xuerab [2006] NSWCA 200 McConachie (t/as Willancorah Pastoral Company) v Pack [2004] NSWCA 148 Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 National Australia Bank v Rice [2015] VSC 10 Neill v NSW Fresh Food & Ice Co Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 Price v Southern Cross Television (TNT9) Pty Ltd (2015) Aust Torts Reports 82-208; [2014] TASSC 70 Re Day (2017) 340 ALR 368; [2017] HCA 2 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Sanches-Sidiropoulos v Canavan [2015] NSWSC 1139 Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260 Shaw v Oakdale Junior Motorcycle Club Inc [2020] NSWSC 180 Shaw v Thomas [2010] Aust Torts Reports 82-065; [2010] NSWCA 169 Singh v Lynch [2019] NSWSC 1403 Southern Colour (Vic) Pty Ltd v Michael Parr [2017] VSCA 301 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35 The Moorcock (1889) 14 PD 64 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Werne v Krahe [2002] NSWCA 168 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] Aust Torts Reports 81-754; [2004] NSWCA 247 Zahed v IAG Ltd (t/as NRMA Insurance) (2016) 75 MVR 1; [2016] NSWCA 55
Texts Cited:	Dal Pont, Law of Agency (LexisNexis, 3rd ed, 2013)
Category:	Principal judgment
Parties:	Michelle Nihill (Plaintiff) The Trustee for Vivien’s Unit Trust t/as Hirere Pty Limited t/as Vivien’s Model and Theatrical Management (First Defendant/Cross Claimant) Kane Lehanneur (Second Defendant/Cross Defendant)
Representation:	Counsel: Mr R. Goodridge (Plaintiff) Mr N. Polin SC (First Defendant/Cross Claimant) Mr L. Havenstein (Second Defendant/Cross Defendant) Solicitors: Firths the Compensation Lawyers (Plaintiff Clyde & Co (First Defendant/Cross Claimant) Grover Law (Second Defendant/Cross Defendant)
File Number(s):	2018/355159
Publication restriction:	Nil