Nihill v Vivien’s Model and Theatrical Management; Lehanneur [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