Nihill v Vivien's Model and Theatrical Management; Lehanneur - [2020] NSWDC 131 - NSWDC 2019 case summary — Zoe

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Nihill v Vivien's Model and Theatrical Management; Lehanneur

[2020] NSWDC 131

District Court of NSW|2019-11-20

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Source facts

Court

District Court of NSW

Decision date

2019-11-20

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

th) 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)

[3]

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

[5]

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]
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]
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]
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]
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]
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]
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]
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]
In cross-examination, the Plaintiff stated that she understood that insurance was for herself and in respect of her personal liability. [22]
The Plaintiff's evidence was that she went to approximately 100 jobs which were provided to her by the First Defendant. [23]
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]
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]
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]
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]
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]
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]
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]
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]

[6]

John Nihill

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]
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]
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]
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]
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]

[8]

Second Defendant

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]
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]
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]
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]
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]
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]

[10]

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]
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]
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]
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]
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]
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]
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]
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]

[13]

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]
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]
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]
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]
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]
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]
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]
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]
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]
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]

[14]

Second Defendant

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]
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]
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]
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]
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]
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]

[16]

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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]

[17]

Second Defendant

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]
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]
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]
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]
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]
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]
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]
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]

[22]

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]
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]
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]
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]
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]
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]
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]
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]
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]
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]

[25]

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]
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.
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.
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.

[26]

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]
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]
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)
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.
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]
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]

[27]

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

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]
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]
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]
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:- 1. The Plaintiff was engaged in a "recreational activity"; 2. The recreational activity was "dangerous"; 3. 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 4. 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]

[28]

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.
The Defendants relied upon the definition of s 5K(c) of recreational activity. In Goode v Angland, [265] Leeming JA stated: [190] I start with the statutory text. Recreational activity is defined inclusively, by reference to three limbs. Each limb is disjunctive. Each limb commences with the word "any", but yet each operates in a different way. The first is directed to the characterisation of the activity, the second to the purpose of the participant, and the third to the location. The evident purpose is for the definition to capture activities if they satisfy any or all of the stated character, or purpose, or location. Even then, the definition is not exhaustive. [191] The first limb is "any sport". The limb therefore requires an analysis of whether the activity bears a particular character, namely, whether it is a "sport". Contrary to the appellant's submission, the words "any sport" are apt to preclude a distinction between sports engaged in for recreational purposes and professional sports. The distinction for which the appellant contends is in the teeth of the ordinary meaning of "any". [192] The words "any sport" are followed by the words "(whether or not the sport is an organised activity)". Again, contrary to the appellant's submission, the bracketed words are words of generality, directed to fending off any implication that only a subclass of organised sports fall within the words "any sport". Once again, far from supporting, they tell against there being a distinction between recreational and professional sports. [193] The second inclusive limb of the definition is "any pursuit or activity engaged in for enjoyment, relaxation or leisure". The word "for" and those following it make it clear that this limb looks to the purpose of the activity. If the appellant's construction were accepted, and sport were confined to recreational activities, then this second component of the definition would amount to its entire content. But a relatively elaborate definition, such as that of recreational activity, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile. See (in private law contexts) FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 at [50] and Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 92 NSWLR 128; [2016] NSWCA 207 at [42]. The purpose of the triply disjunctive definition is necessarily to expand the scope of "recreational activities" beyond those which have a recreational purpose; that is the point of the first and third limbs. [194] The third limb of the definition focuses upon the location of the activity ("at a place"). It highlights some of the practical difficulties which accompany the appellant's construction. If the location of the activity is sufficient to engages 5K, then how does the appellant's construction distinguish between professional and non-professional sportspeople at the same location? [195] More generally, it is easy to contemplate sporting events in which some competitors participate for enjoyment or relaxation or leisure, but others do not. There must be some occasions when professionals, semi-professionals and amateurs compete simultaneously (for example, marathon running and some forms of car or motorbike racing). What of an elite high school or undergraduate rugby player who plays a game amongst professionals? It would seem most arbitrary in such a case if a player could be liable for injury negligently inflicted upon a professional but not upon the student. Constructions which yield improbable or capricious results are to be avoided on settled principles of statutory interpretation: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26 at 321. [196] Further, the distinction between professional and non-professional is scarcely a crisp one. It is easy to contemplate competitors who receive some remuneration, and hope as their careers progress to be able to support themselves from their sport, but whose participation is predominantly for recreational purposes, and who would not be regarded as professional. Boxing may be one example, there are many others. [197] It will also be seen that there are two components in the third limb: where people ordinarily engage in sport, and where people ordinarily engage in any pursuit or activity for enjoyment, relaxation or leisure. Those components correspond with the first and second limbs. That in turn emphasises that the definition as a whole should not be construed so that the second limb swallows up the first. [198] All these difficulties arise from seeking to impose a gloss not found in the statutory definition, and contrary to the generality and ordinary meaning of "any sport". They tell against the appellant's construction.
The Defendants submitted that the Plaintiff was engaged in the photoshoot at Bluefish Point North Head which was a public open space and indeed part of a national park. [266] The area was clearly difficult to access.
Attention, however, was drawn to Exhibit 1 that demonstrated that bushwalkers and fisherman use the area. [267] Persons are seen sunbaking on the rocks. [268] The footage showed those persons returning their fishing gear. [269] In these circumstances it was contended that the definition of recreational activity was clearly engaged. [270]
The Plaintiff contended that it was not open to make a finding that this was "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 as there was no evidence to support it.
On Day 1 of the hearing, the Plaintiff complained that if it was sought to prove what pursuit or activity is usually engaged at this location then the Plaintiff had no chance to do an investigation. Counsel for the First Defendant stated that whilst not proposing to call evidence, a submission would be made based on the location as to the kinds of things that go on there. Following that undertaking being adopted by the Second Defendant, each Defendant was granted leave to rely on Further Amended Defences without objection.
In circumstances where there were further issues as to the readiness of the matter it was referred to the list judge (Balla ADCJ) who stood the matter over to 12 November 2019 granting the Plaintiff leave to file an Amended Statement of Claim. On this latter date, being Day 2, an issue arose as to the ability of the Defendants to meet the proposed further amended pleading. After this had been resolved the Plaintiff informed me that its case may require a ruling on a YouTube clip. [271] The First Defendant advised they had also served a YouTube clip and didn't anticipate it being an issue as something could be worked out. [272]
Counsel for the First Defendant indicated at that point that in light of the Further Amended Statement of Claim there would be no restriction in terms of evidence that would be called. [273] After some discussion, Counsel for the First Defendant stated that what he was referring to was his previous statement was that he wasn't going to call witnesses relevant to the activities that take place at the location in question. He then drew attention to two YouTube clips that he anticipated being shown stating that they "actually put it in perspective." [274]
I then drew to the First Defendant's counsel the undertaking previously given and asked if any evidence was to be called other than a common sense rationalisation. Counsel responded referring to other evidence actually in the case. At that point I asked if this was the YouTube videos. The First Defendant's counsel responded: POLIN: There will be evidence of the plaintiff as to where she is. I'll be asking her questions about where she is, where she went, how she got there. That's the evidence [275]
During the course of cross examination the Plaintiff was shown two YouTube clips. At a point in the first clip following the fall, the Plaintiff objected to further viewing despite having served the document stating "we were given an undertaking that other evidence will not be called as to what occurs in this location." The First Defendant stated that it had not given an undertaking which I infer relates to the material in question. Ultimately both videos were tendered limiting their use of them being as to an understanding of the area navigated by the Plaintiff. [276]
When the Defendant's submitted in terms of the s 5K(c) definition, the Plaintiff indicated that it had earlier advised that it wouldn't be able to meet the amendment in the Defence to the Further Amended Statement of Claim if any evidence was be called about activities usually occur there. When I pointed out that the no other evidence was called except by reference to Exhibit 1, the Plaintiff raised no further objection either in terms of the undertaking or the s 136 restriction. One of the recordings on the Exhibit appeared to have been supplied by the Plaintiff and one by the First Defendant.
The Plaintiff submitted: GOODRIDGE:… in the sense that to get access to it, you had to breach that sign. You were not - of course, you could have - I'm not suggesting it was out of bounds if you were rich enough to hire a helicopter to land down there, I'm not suggesting it was out of bounds in that sense, but it's out of bounds in the way that the plaintiff and the first - the second defendant and Mr Bell approached this site. It would be out of bounds for the ordinary person. But there's also the second evidentiary point that the defendant would need to establish that the pursuit of activity, if it's being down there, is ordinarily done for enjoyment, relaxation, or leisure. Now, your Honour, we have here the second defendant and Mr Bell both gave evidence they'd been down there four times. This was the fifth time. They gave no evidence as to why - what was their purpose on any other occasions. That would only be slight evidence, but it's some evidence that could have been called. You have no evidence as to what other people were doing down there, whether it's part of a commercial activity or not. The YouTube that was shown, there's no evidence about whether people shooting the YouTube were doing it for commercial reasons. For my part, I don't understand why people do YouTubes, but apparently you can make money out of it somehow. [277]
The distinction sought to be advanced by the Plaintiff, focusing on the commercial or other purpose of the activity or pursuit, is contrary to the analysis of the s 5K(c) definition of "recreational activity" by Leeming JA in Goode v Angland. [278]
Nor do I accept that the breadth of the definition of recreational activity is to be limited to avoid the consequences described by the Plaintiff. [279] I see nothing in the remarks of Leeming JA at in Goode v Angland that suggest such an approach. His Honour's remarks at [207] to [208] were referable to circumstances where the defence under s 5L may not apply. They were not referable to the construction of what might otherwise amount to a recreational activity. [280]
The Plaintiff sought to describe the relevant activity as modelling such that there were no "inherent risks" that can be relied upon by the Defendants to defeat Ms Nihill's claim. [281] Section 5L of the 2002 Act talks about obvious risk.
The Plaintiff's general descriptor that obscures the particular activity that the Plaintiff was engaged in at the relevant time referable to the s 5K (c) definition. It does not accord with the statements of Ipp JA in Fallas v Mourlas [282] discussed below as to the scope of the activity being referenced to the actual activities engaged in at the time.
In this case the journeying to a photoshoot at the rock pools amounted to an activity within s 5K(c).
Section 5K(c) requires a proximal connection between the pursuit or activity engaged in and the place where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation, or leisure. [283]
In another legislative context "ordinarily used" was held to refer to commonly or usually used but not exclusively or principally. [284] Section 5 K(1) (c) uses the term "ordinarily engage."
The area where the journey was undertaken was plainly a "public open space", being part of a national park. As such it comes within the terms of s 5K(c) as a place where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relation or leisure. It is difficult to imagine how it could be otherwise. The fact that parts of the place may be less easily accessible than other parts would not preclude it from falling within the legislative descriptor.
It follows that I accept that the relevant activity was the Plaintiff proceeding to the photo shoot at the rock pools at North Head amounted to a recreational activity within s 5K(c) of the 2002 Act.

[29]

Dangerous Recreational Activity

The question which next arises is whether it constituted a "dangerous recreational activity".
The First Defendant drew attention to the contents of Exhibit 1, 2 and 4 as evidence supporting that the Plaintiff was engaged in dangerous recreational activity. Both Defendants drew attention further to the Plaintiff's own evidence which referred to her looking down from the cliff and resisting going down because she thought it was dangerous and looked scary. [285] Attention was also drawn to the evidence of the Second Defendant and Mr Bell referable to the description of the location in question.
The First Defendant described the activity as involving scaling rocks, going down the side of a cliff, and traversing across rock shelves that are underwater at high tide and clearly slippery when it is low tide.
It submitted that there was a significant risk of physical harm in the activity, including walking along rocks on the sea shore, being an example remarked on by Heydon JA in Van Der Sluice v Display Craft Pty Ltd [286] in the following terms: These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. [287]
The Plaintiff acknowledged that the definition in s 5K(c) of recreational activity had a different application where the place is ordinarily used for relaxation, enjoyment and leisure. It accepted that the purpose of other people ordinarily changes the risk profile under the statute. [288]
However, the argument the Plaintiff presented as the recreational activity not being dangerous appeared to be referenced to the instant case bearing some analogy to Alameddine v Glenworth Valley Horse Riding Pty Ltd. [289]
In Alameddine v Glenworth Valley Horse Riding Pty Ltd the Court held that quad bike riding was not a dangerous recreational activity. That was held to be so in light of the representations made, instructions given, and the assessment of the skills being closely supervised throughout the activity.
Ipp JA in Fallas v Mourlas [290] noted that unless the determination of whether the recreational activity was dangerous took into account the particular circumstances in which it was undertaken, it was likely to operate unfairly and result in injustice. At [43] his Honour noted that: [43] These potential situations of unfairness and injustice can be avoided if, for the purposes of s 5K, the scope of the recreational activity is determined by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred.
His Honour then went on to state: [48] For example, if it is accepted that "walking" is too general a description, where does one draw the line between that general description and a description that would allow one or more of the following factors to be taken into account: the place of the walk, the state of the traffic anticipated and experienced, the condition of the path, the actual weather, the weather that was expected, the visibility, the age of the walker, the mental competence of the walker, the walker's physical competence, the walker's experience, the walker's sobriety, the walker's knowledge or ignorance of any dangerous circumstances in the path which would be regarded as traps, the walker's clothing and equipment, whether the walker was alone or with companions, the age, competence, experience and sobriety of the companions. The list of factors that could bear on the risk involved in this simple common or garden recreational activity is infinite in number. How can one differentiate in a principled way between them? In my opinion, this question cannot be answered in a satisfactory way. All must be taken into account. [49] If no practicable test for determining the scope of the activities exists, other than "the particular activities engaged in by the plaintiff at the relevant time", it is self-evident that the test so articulated must be regarded as the test intended. Otherwise uncertainty and confusion would be the result. No other test has been suggested. [50] Accordingly, in my view, the dangerousness (in terms of s 5L) of the recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time. All relevant circumstances that may bear on whether those activities were dangerous in the defined sense include relevant matters personal to the plaintiff and others of the kind I have mentioned.
Basten JA held that significant qualified the balance of the expression "risk of physical harm." [291] Tobias JA stated that he preferred to approach significant risk as "one which has a real chance of materialising" taking into account the conduct actually engaged in and the circumstances which provides context. [292]
In Falvo v Australian OzTag Sports Association, [293] Ipp JA stated: [31] In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the "risk of physical harm" may be "significant" if the risk is low but the potential harm is catastrophic. The "risk of physical harm" may also be "significant" if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the "risk of physical harm" may not be "significant" if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is "dangerous".
Subsequently, Mason P in Lormine Pty Ltd & Anor v Xuerab [294] summarised what was required in determining recreational activity was dangerous in the following terms:- [31] The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92]). (emphasis added)
Looking at the matter objectively and prospectively, the Plaintiff in the present case was aged 19.
She attended on the day of the accident for the purposes of a photoshoot which was represented as a beachwear shoot, or as it was represented to the First Defendant, a beach/water inspired shoot. Prior to her attendance that day, she not know the relevant location of the shoot beyond being advised to meet at Manly Hospital. The attendance was unpaid and was to obtain photographic material for the mutual benefit of the Plaintiff and Defendants
When the Plaintiff arrived she was driven to North Head National Park and told that the path she was to embark on was treacherous. She was advised at the outset and along the path that if she wished to discontinue she could. The pathway was not an area with which she was previously familiar. The Plaintiff's attire was to the task of modelling task. The description of the landscape submitted by the First Defendant was not traversed and the journey involved an ad hoc expedition.
Whilst the question of whether a recreational activity is dangerous is objectively determined, matters personal or subjective to the Plaintiff tending to demonstrate dangerousness and where appropriate, challenge about specific risk and the extent to which they may have been known or otherwise apparent, may be relevant. [295] The Plaintiff accepted the description of the scene at the top of the cliff as dangerous and risky. She accepted that if she slipped and fell then she would fall straight off the cliff. She further accepted that when holding the rope if she either let go, or the rope broke, she would fall backwards down the cliff. [296]
The Plaintiff also accepted that when walking along rocks along the seashore they could be slippery, that it was something that had to be looked out for and that the rocks change with every step. [297] The Plaintiff further accepted that as a result of slipping when walking around rocks, there was a risk that she could injure herself. [298]
These observations accord with what is exhibited in the Exhibits to which the Defendant has drawn attention.
This was not a commercial trek activity and there was no representation as to the nature of the activity as was the case in Alameddine. The Plaintiff had the company of two persons who had represented to her that they had prior experience in walking through the area and that she would be fine. Those assurances were in a context where she also advised at the cliff that she did not need to descend and that they could take further photography on top. The Plaintiff conceded that the only pressure she had was to get the photographs for her portfolio. At various stages of the journey it was open for her to discontinue.
The statements made by the Second Defendant and Mr Bell to the Plaintiff these have to be viewed in the context of what was said by Basten JA in Fallas v Mourlas: [299] [135] Whether particular information is relevant or material depends either upon what would be expected of a reasonable person or was actually expected by the plaintiff, where the expectation was or should have been known to the practitioner. By contrast, in the present case, the existence of a "significant risk", in relation to a recreational activity, will deprive the injured party of a right of action. The reasonable expectations of the plaintiff need not control the limits of the immunity. [136] In the present statutory context the phrase "significant risk" is one which requires an objective test, not dependent upon the expectations of a person in a particular relationship with another, whether it be a drunken friend or a medical advisor.
In the circumstances, the presence of the Second Defendant and Mr Bell and their words of reassurance would have done nothing to reduce the assessment of risk of physical harm in the eyes of a reasonable person in the Plaintiff's position. The nature of the journey was such that from the cliff face and beyond any assistance or reassurance would be to little avail to address the risk of physical injury. The circumstances bear some analogy with those discussed in Campbell v Hay. [300]
Taking all the circumstances into account at an appropriate level of abstraction, I accept that the recreational activity involved a likelihood of injury and seriousness of injury that was high such that it amounted to a significant risk of physical harm. Accordingly I am satisfied that there was a dangerous recreational activity.

[30]

Materialisation of Obvious Risk

The First Defendant submitted that accepting this was so, the harm suffered by the Plaintiff was a result of the materialisation of an obvious risk (within the terms of s 5L) being that whilst crossing the rocks at Bluefish Point, the Plaintiff slipped and fell and suffered injury. [301]
The Second Defendant characterised it as the result of the materialisation of the risk that the Plaintiff slipped and fell while walking on slippery tidal rocks. [302]
As noted below I accept the relevant risk of harm as the Plaintiff slipping and falling while walking on tidal rocks at Blue Fish Point.
As noted earlier the Plaintiff sought to contend that the relevant activity was modelling from which I further infer that it contends that the risk which materialised was not the result of an obvious risk.
The Plaintiff submitted that there was nothing to alert the Plaintiff in that the First Defendant said it was "a beachwear shoot", and the work sheet earlier described gave no hint of the relevant risk. [303]
The Plaintiff's submission mischaracterises the application of s 5F which requires all of the surrounding circumstances which occurred immediately prior to the Plaintiff suffering the relevant harm to be identified for the purpose of determining whether the risk which materialised was obvious. [304] Those circumstances include the observations the Plaintiff was able to make herself, the predicament she was in, and the information given to her which I have accepted.
I do not accept the Plaintiff's submission that after traversing the cliff it wasn't logical for the Plaintiff to turn back. Neither the Plaintiff nor any other witness gave such evidence. Contrary to the submission made, the Plaintiff was not advised that it was easy thereafter that there was no danger. [305] The Second Defendant gave specific evidence of having a conversation with the Plaintiff about the slipperiness of the tidal rock shelf.
The Plaintiff in any event acknowledged that walking along rocks on the sea shore can be slippery and that there was a risk that she could slip. She further accepted that there was a risk she could injure herself when walking on rocks and rocks change at every step. That is relevant to the extent that any reliance is placed on s 5G, although 5L(2) states that 5L(1) applies irrespective of whether the Plaintiff was aware of the risk.
In Menz v Wagga Wagga Show Society Inc, Leeming JA held: [69] The fact that a plaintiff can identify some facts which are not the "materialisation of an obvious risk" but which are causally connected with the plaintiff's harm is no answer to the defendant establishing other facts which are the materialisation of an obvious risk as a result of which the plaintiff suffers harm. While s 5L is a defence, it is not to the point for a plaintiff to establish that the harm suffered may be considered to be the result of the materialisation of a risk which is not an obvious risk, unless the plaintiff can also demonstrate that the defendant's characterisation is inappropriate. The focus must be on whether the respondent's characterisation of what occurred was an appropriate one so as to engage s 5L. [306]
His Honour proceeded to outline how obvious risk is to be specified, stating: [70] What follows from the considerations mentioned above is the following. First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single "correct" specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient. [71] Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required. [72] Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight. [73] Fourthly, I think there is much to be said for the view that "as a result of" in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm. [74] Fifthly, the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious.
The reference by Heydon JA in Van Der Sluice v Display Craft Pty Ltd [307] to the slipperiness of rocks on the seashore being obvious is a matter of matter for judicial notice. There was no argument however that this was not so.
In the present case the harm caused was the result of the fall. Whilst it occurred in the course of the Plaintiff undertaking modelling that did not deny that it was the result of her slipping and falling whilst walking on tidal rocks. The slipperiness of tidal rocks was not in issue. Accordingly it is appropriate to characterise the harm as the materialisation of an obvious risk of the dangerous recreational activity. It follows that I accept the Defendants' submission and find that they are not liable in negligence for the harm suffered by the Plaintiff in the circumstances.
Nevertheless I will proceed to consider other aspects of the claim.

[31]

Section 5M of the 2002 Act

The Defendants further relied on the provisions of s 5M of the 2002 Act. This was advanced in the context of Exhibit 2D1 which in its tendered form was as follows:
Section 5M (1) of the 2002 Act relevantly reads: 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (2) … (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) … (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean - (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12)…
The Defendants pointed to the fact that although the Plaintiff said she did not see the sign on the day in question, the evidence of both the Second Defendant and Mr Bell was that they had seen the sign. The Second Defendant stated that he had not read it prior to the accident, whilst Mr Bell had but decided not to obey it as he had been there a few times before with many friends and thought he would take the risk. The Defendants argued that in light of this evidence the Court should find that the sign depicted was present and the Plaintiff had walked past it.
The Plaintiff submitted that the Defendants had not established that it was reasonably likely that the Plaintiff would have received the warning. [308]
I accept that the sign was present on the day. The evidence of the First Defendant satisfies me that that was so. Mr Bell had been to the site previously and had previously read the sign although suggested different location. The Plaintiff did not recall going down the wooden stairs depicted in Exhibit 2D1 or seeing the sign. I accept the First Defendant's contention that the fact that the Plaintiff did not read the sign is not determinative. I accept that the Plaintiff would have traversed that area to get to where the cliff was and that was proximate to where the abseiling occurred.
The warning conveyed by the sign was the risk of being injured either through the cliff edge giving way or use of climbing aids due to an unfenced thirty metre drop and rocks below.
As the sign itself referred to the "NPWS" I accept that it can be inferred that it was erected by the occupier such that both Defendants can rely on it pursuant to 5M(6) of the 2002 Act.
Counsel for the First Defendant maintained that the sign was a general warning of the risk that included the particular risk referring the heading "DANGER" and submitting that it was telling that the area was dangerous. [309]
The Plaintiff argued that the sign did not embrace the risk of harm earlier referred to. The Plaintiff submitted: GOODRIDGE: Just dealing with the sign, there is nothing in that sign that says anything about that. It says "Stay away from edge and do not climb down cliff face", so there's a prohibition in that sense. And then dot point, "unfenced high cliff and unstable edge, 90 metre drop to rocks below, supervise children, cliff edge may give way resulting in serious injury or death, ladders and other climbing aids in this area are not permitted, authorised, installed, tested or maintained. Use of these aids to climb down the cliff is dangerous and may result in serious injury or death. Installation of ladders and other climbing aids in this area is prohibited." There seems to be a red circle with a line through it about climbing down anything. [310]
The risk to which s 5M(1) is directed is a risk of the recreational activity. I do not accept that the sign can be regarded as being a general warning of risks that included the particular risk encountered by the Plaintiff within in the terms of s 5M(5) of the 2002 Act. In my view the sign was quite specific as relating to the cliff face.
The First Defendant next relied upon further warnings said to have been given by the Second Defendant and Mr Bell which are referred to in submissions as follows:- [56] In addition, the 2nd defendant and Tyler Bell gave further risk warnings. At T44-22 the plaintiff gave the following evidence in chief: 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. [57] At T167-45 the 2nd defendant gave the following evidence: Q. So, can you just describe what happens in that moment? 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. [58] At T186-30 Tyler Bell gave the following evidence: Q. What order did you walk in? A. I walked at the front and Michelle walked in the middle and Kane walked at the end. We were holding - she had nothing in her hands. We were holding all of the belongings and I stepped onto a slippery step and looked over my left shoulder and said, "Watch out, Michelle, this bit is slippery," and as I said that, she took her step and then slipped off the edge. [311]
The Second Defendant advanced that the Plaintiff was advised of additional risk warning on the following occasions: 1. At the treatment plant car park during a conversation with the Second Defendant and Mr Bell; 2. The warning sign located along the track to the first gun bunker (Exhibit 2D1). Both the Second Defendant and Tyler Bell gave clear evidence that they saw the sign on their way to the first gun bunker. This evidence was unchallenged by the Plaintiff in cross-examination. 3. At the first gun bunker during conversation with the Second Defendant and Mr Bell; 4. During the course of the walking form the first gun bunker to the second gun bunker; 5. At the top of the rope which the Plaintiff, Second Defendant and Mr Bell scaled to get to the bottom the rocks; and 6. During the course of the walk on the ledge around to the second rock pools. [312]
These submissions overlap to an extent.
In Sharp v Parramatta City Council [313] Meagher JA stated: [32] The question raised by s 5M(1) is whether the relevant risk of injury "was the subject of a risk warning to the [appellant]". Section 5M(3) provides that question is to be answered in the affirmative if the warning was "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". It directs attention not to whether the relevant person received or understood the warning or was capable of doing so, but rather to whether the warning, by the manner in which it was given, was reasonably likely to result in "people" being warned. The "people" referred to are not all people but people in the same position as the relevant person. Such people would only have been "warned" if they were reasonably likely to have received and understood the warning said to have been given.
Section 5M(3) requires that the warning is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. There may well be an issue as to the point at which the relevant recreational activity commenced in light of the reliance on s 5K(c) of the 2002 Act. I will proceed on the assumption that there is no issue in this regard.
The Second Defendant conceded that no other warning of the presence of the particular slippery patch was given other that by Mr Bell. [314]
It is not apparent that the warning given at the ledge amounted to a warning given in a manner reasonably likely to result in the Plaintiff being warned of the risk before engaging in the recreational activity within s 5M(3). Neither party raised the warning that the Second Defendant says he gave to the Plaintiff after the descent. Again, however, it is not apparent that this was given in accordance with s 5M(3).
The Second Defendant did not identity how the additional matters referred to in its submission constituted a risk warning within s 5M(3). Advising the Plaintiff that she did not need to continue if she was uncomfortable did not constitute a warning of any risk. Further, the Second Defendant did not identify how the warning at the car park (that the path is going to be treacherous and if she didn't want to do anything on the day she didn't have to) constituted a warning of the general nature of the particular risk under s 5M(5).
I am not satisfied in these circumstances that no duty of care was owed by reason of s 5M of the 2002 Act.

[33]

Plaintiff's Submissions

The First Defendant was in a commercial relationship with the Plaintiff being her exclusive agent/manager. As such the Plaintiff contended that it was required to provide services with due skill and care.
The Plaintiff further pleaded that each Defendant was in breach of its duty of care to the Plaintiff as it: 1. Failed to exercise reasonable care for the safety of the Plaintiff; 2. Exposed the Plaintiff to a foreseeable risk of injury which could have been avoided by the exercise of reasonable care; 3. Failed to take precautions as identified in [21] and [27] of the Statement of Claim; 4. Failed to ensure that the precise location of the photoshoot was known to the Plaintiff; 5. Failed to ensure that the Plaintiff was advised to wear appropriate footwear to meet the conditions of the photoshoot location; and 6. Failed to devise, adopt, implement and enforce a safe system of arranging photoshoots between its clients and models such as the Plaintiff for whom it was the exclusive agent and manager. [320]
In contending that the risk of injury was foreseeable the Plaintiff placed reliance was placed on the test laid out in Wyong Shire Council v Shirt [321] and Tame v State of New South Wales. [322]
The Plaintiff pleaded the following precautions that ought to have been taken: 1. To have put appropriate measures in place to ensure that the location for photoshoots as arranged with its clients, such as the Second Defendant, were appropriate and safe for models, such as the Plaintiff, for whom it was the exclusive agent and manager; 2. To have ensured that the precise location for photoshoots as arranged with its clients were extensively predetermined so that models, such as the Plaintiff, were advised to wear appropriate clothing, and in particular appropriate footwear, to meet the conditions of the location; and 3. To have ensured that, at the very least, a telephone conversation occurred between its client's and models, such as the Plaintiff prior to the photoshoot occurring so that the precise location was discussion and the Plaintiff afforded an opportunity to wear appropriate clothing, and in particular appropriate footwear, to meet the conditions of the location. [323]
Despite the breadth of the pleadings, the Plaintiff in written submissions contended that the First Defendant erred in not conveying to the Plaintiff the danger and the correct description of the modelling job, its risk and its demands. It asserted that the Plaintiff understood from the First Defendant that she was turning up to a beachwear shoot and accordingly brought no footwear appropriate for rock climbing and traversing rocks and rock ledges. [324] Accordingly it was submitted that breach under s 5B(2) of the 2002 Act was established.
In oral submissions, the Plaintiff came to accept that the First Defendant's duty did not extend to giving risk management advice but asserted that the First Defendant should not have kept from the Plaintiff material that would have been material to whether she took on the job. [325]
The Plaintiff pointed out that beside the meeting point, none of the information it received about the track, trek or rock pools at North Head, or that the rock pools lay at the bottom of the head, was ever conveyed to her. [326]
Next, the Plaintiff contended that risk of harm was not insignificant within the terms of s 5B(1)(b) of the 2002 Act. The Plaintiff acknowledged that the requirement in s 5B(c) that the risk be not insignificant was more demanding that the common law, but not by very much. [327]
As I understand the Plaintiff's submission as now put, it was not contending that the First Defendant ought to have audited the locations of the assignments but rather it should have passed on information it obtained to enable the Plaintiff to make the appropriate decisions.
The Plaintiff submitted that causation under s 5D of the 2002 Act was established as it was the First Defendant who: 1. Agreed to the arrangements with the Second Defendant on the Plaintiff's behalf; 2. Forwarded the Plaintiff a worksheet not detailing the job as had been described by the Second Defendant to the First Defendant; 3. Caused the Plaintiff to travel to Manly at 5.15 am with her mother who "dropped" the Plaintiff off; 4. Caused the Plaintiff to be dressed only for a swimwear shoot; 5. Caused the Plaintiff to turn up in sandals only. The sandals were inappropriate and so they had to be removed leaving the Plaintiff in bear feet. The Plaintiff's unchallenged evidence was that she was not told to wear proper footwear; 6. Left the Plaintiff under the direction of the Second Defendant, isolated and a long way from transport and somewhat dependent upon the Second Defendant and Mr Bell; and 7. Left the Plaintiff on a narrow slippery rock ledge needing to avoid a jutting out rock, being urged on by the Second Defendant and Mr Bell (the latter having gym boots), following Mr Bell who had on gym boots, taking the same route as Mr Bell without "proper foot wear" and then slipping and falling suffering significant injuries. [328]
The Plaintiff further asserted that she was vulnerable by a lack of practical capacity (or limited capacity) to protect herself from harm and an inability to control or influence the physical events which gave rise to the loss. [329]
It was submitted that had the Plaintiff been provided with the information imparted by the Second Defendant, the Court would find that she would have declined stating: GOODRIDGE: … Because we know that when the plaintiff does finally get the information, woah, I don't want to do this. Now that's - if she's at home, that's easy, she doesn't have Mr Bell and the second defendant going oh, you'll be fine, it's good, we'll help you et cetera. It's just no. The no wouldn't have been contradicted. The end. And secondly, the plaintiff said in her evidence that I wasn't even given enough information to bring appropriate shoes. [330]

[34]

First Defendant's Submissions

The First Defendant maintained that the scope of it duty of care was delimited by the expectation that the Plaintiff would exercise reasonable care for her own safety. It submitted that if the Court were to find that the Plaintiff was not exercising reasonable care for her own safety then no duty would be found. [331] Ultimately it was submitted that any duty was no more than a duty to take reasonable care in its role as her agent and manager. [332] In oral submissions it acknowledged that the relationship was exclusive. [333]
The First Defendant contended that the risk was not foreseeable as there was no evidence that the First Defendant was aware of the precise location of the photoshoot and therefore it had no actual knowledge. It further submitted it was difficult to see what constructive knowledge it has that it ought to have known of the risk of harm. [334]
The Defendant placed reliance on Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [335] where Meagher JA stated at [37]: The question remains whether, as Mrs Bruce contends, the primary judge should have held that the risk of harm was "not insignificant". In my view the evidence before the primary judge supported the conclusion that the risk of someone tripping and falling was "insignificant" because of the obviousness of that risk and remoteness of the likelihood that people using the area would fail to observe and take account of the uneven surface: Thompson v Woolworths at [36].
The First Defendant contended that the risk here was insignificant because of the obviousness of it and the remoteness of the likelihood that people using the area would fail to observe and take account of it. Accordingly the Plaintiff could not establish that the risk was "not insignificant." [336]
The First Defendant contended that a reasonable person in the First Defendant's position would not have taken the precautions contended by the Plaintiff.
The First Defendant submitted that the Plaintiff would attend many and varied locations for photo shoots and had done photo shoots on rocks by the sea shore on previous occasions. [337] This was evident in Exhibits 5, 7 and 15.
The First Defendant drew attention to the Plaintiff's evidence that what was depicted in Exhibit 7 was risky. [338] That photo showed the Plaintiff standing in high heels on a pillar at Coogee beach with waves breaking nearby. It drew attention to the fact that the Plaintiff in evidence conceded that what was depicted was risky and that modelling is not the safest job. [339] The Plaintiff stated that she accepted the risk on the basis that that was the sort of work she wanted to do. She acknowledged in her evidence that she was always told that "If there's anything, no matter what it is you are not comfortable with you do not do it." [340]
The First Defendant contended that it could not audit every location and photo shoot which the Plaintiff may attend. The response to the risks was to advise not to do anything that she was uncomfortable with. It drew attention to the fact that well before she slipped and fell she was aware of the precise location of the photo shoot and was repeatedly asked if she was alright to continue with the option given to stop and return at any stage if she wished. [341]
In respect of the failure to wear appropriate footwear the First Defendant repeated its earlier submissions. [342] The First Defendant submitted that there was no evidence that the conduct on the part of the First Defendant was the real cause of the Plaintiff's injury, as failing to advise of the particular location of the photo shoot did not cause the injury and nor did the failure to advise the appropriate footwear.

[35]

Consideration

The First Defendant did not identify how any circumstance amounting to a failure by the Plaintiff to exercise reasonable care for her own safety was such that it fell outside its duty of care. [343] It accepted, nonetheless, that its duty was to take reasonable care in its position as exclusive agent manager.
The discussion between the Second Defendant and Ms Atwa from the First Defendant did not involve the latter agreeing to the request independently of the Plaintiff, all the more so as this was a non-paying request. The correspondence between the First and Second Defendants relevant to the assignment clearly demonstrates that the Plaintiff was asked as to her willingness to take on the request. [344]
The First Defendant made the arrangements and left it to the Plaintiff to pursue further dialogue with the Second Defendant. There is no evidence that the invitation to speak to the Second Defendant was taken up following receipt of the work order.
I do not accept the First Defendant's submission as to foreseeability. As the Plaintiff pointed out, the unchallenged evidence of the Second Defendant was that he told Ms Atwa from the First Defendant that it was intended to go down to the rock pools at North Head for a shoot. Ms Atwa was told that the journey involved taking the track down, and the rock pools lay at the bottom of the head. Even if the First Defendant had no actual knowledge, I am satisfied that the facts matter and circumstances impute it with constructive knowledge of the risk of harm. [345] It matters not that it was not aware of the precise rock pools.
A finding that a risk is obvious within s 5F is from the perspective of a reasonable person in the position of the Plaintiff. The question of whether a risk is not insignificant under s 5B(1)(b) is based on the perspective of the Defendant. [346] In Bruce v Apex Software Pty ltd t/as Lark Ellen Aged Care attention was drawn to relevant factors to the assessment of the significance of the risk being its obviousness, its likelihood of occurrence, and the seriousness of its consequences. [347] The Court proceeded to make its assessment based on these factors proceeding beyond the obviousness from the perspective of the Plaintiff. That included the absence of any reported falls, or of any other complaint, for a period of 15 years.
The obviousness of the risk of harm in this case needs to be taken into account together with the likelihood that it would occur as well as the serious consequence that could flow. Neither party made any detailed submissions in regard to the latter elements. As Leeming JA stated in Menz v Wagga Wagga Show Society Inc little may turn on this altered orientation as the risk is an obvious one. [348] Nevertheless, I will proceed on the basis that the risk was not insignificant.
I would accept that the probability of harm, if care were not taken, would be high. I would further accept the likely seriousness of the harm was high.
As the First Defendant correctly pointed out s 5B(2) is not an exhaustive list of factors that a court is required to take into account in deciding if s 5B(1)(c) is made out. [349]
I accept the First Defendant's submission that it would be unreasonable to expect it to audit every location and photo shoot which the Plaintiff may attend. Such an obligation, were it to be required, would need to extend to all potential bookings. [350] The Plaintiff ultimately appeared to accept as much.
The burden of taking the precaution so far as passing on information would not have been great. However, the First Defendant's response was to reinforce to the Plaintiff that she should not do anything which she was uncomfortable with. Beyond that the Plaintiff was aware well before she slipped and fell of the precise location of the photoshoot.
The Plaintiff has not identified how the advice provided was not an adequate response to the risk of harm. [351]
For the reasons earlier given I am not satisfied that the Plaintiff has demonstrated that a failure to be enable her to wear appropriate footwear was would have prevented or prevented the risk of harm materialising.
Even if I was to be satisfied that a reasonable person in the First Defendant's position would have taken the precautions identified, I cannot be satisfied that the failure to take those precautions caused the particular harm.
As this is so, I am not satisfied that they would have made any difference to the Plaintiff's decision to purse the journey she took. The Plaintiff was advised on the morning of the accident that they would proceed down the track to the rock pools and the path was treacherous. The Plaintiff 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. From previous experience she was aware she had a choice to not attend to certain jobs that had been offered to her. She had been told by the First Defendant that if there's anything, no matter what she wasn't comfortable with, to do not do it. She acknowledged that she accepted the risk associated with modelling as she was passionate and it was the kind of work she wanted to do. She further acknowledged that the only pressure she was under was to obtain the relevant photographs. She was aware that if she wished not to continue at any time she should do so and knew the state of her attire. Whilst she may have been apprehensive at the cliff and may have personally felt reassured by what she had been told I am not satisfied that she was under any pressure.
It follows that I accept the First Defendant's contention that neither of the causes proposed by Plaintiff, being the failure of the First Defendant to inform her as to the precise location of the photo shoot nor enabling her to wear appropriate footwear, were demonstrated to the real cause of the Plaintiff's injury.

[36]

Plaintiff's Submissions

The Plaintiff contended that the Second Defendant was a professional photographer seeking to promote himself and his work and that the photoshoot was undertaken for his and the Plaintiff's financial business benefit. The Second Defendant acknowledged that the photos were to be supplied to the Plaintiff and the First Defendant for their use.
The Plaintiff reiterated that the risk of harm concerning the Second Defendant was the risk of suffering personal injury from slipping or falling from the rock at North Head especially in circumstances where the Plaintiff had inadequate footwear on.
It maintained in argument expressed above that the injury was foreseeable and not insignificant.
It submitted that a reasonable person in the Second Defendant's position ought to have taken the precautions of : 1. Not reassuring and urging the Plaintiff that the circumstances were safe when they were not; 2. Not continuing with the photoshoot when it became obvious that the Plaintiff did not have footwear appropriate for rock climbing and traversing rock ledges; 3. Ensuring that the First Defendant appreciated the risk of the Plaintiff attempting the trek without appropriate footwear and insisting that the First Defendant convey the magnitude of the risk to the Plaintiff before the day of the photoshoot; 4. Have the Second Defendant or Mr Bell walk further ahead of the Plaintiff so that a timely warning of the slippery patch could be given; 5. Ensured that the location for photoshoots as arranged with contracted modelling agencies such as the First Defendant, were appropriate and safe for models, such as the Plaintiff; 6. Ensured that the precise location for photoshoots as arranged with contracting modelling agencies such as the First Defendant were extensively predetermined so that models such as the Plaintiff were advised to were appropriate footwear to meet the conditions of the location; 7. Ensured that, at the very least, a telephone conversation occurred between the Second Defendant and the Plaintiff prior to the photoshoot occurring so that the precise location of the photoshoot was known to the Plaintiff and that Plaintiff afforded an opportunity to wear appropriate clothing and in particular appropriate footwear to meet the conditions of the location. [352]

[37]

Second Defendant's Submissions

The Second Defendant submitted that he was not in the care and control of the Plaintiff during the course of the test shoot. Both were in joint collaboration with respect to the photo shoot for the following reasons; 1. The Plaintiff wanted to obtain the shots to build her portfolio of swimwear/beachwear shoot images; 2. The Second Defendant wanted to work with the natural morning light to practice his photography skills; 3. There was no financial gain to either the Plaintiff or the Second Defendant; 4. The Plaintiff was free to decide whether she wanted to be part of the photo shoot and could leave at any stage; and 5. The Second Defendant and Tyler Bell repeatedly reiterated to the Plaintiff that she did not have to do anything that she did not want to do and that she could stop if she did not want to go further. [353]
It was contended that to the extent that there was a duty and subsequent breach there was an expectation that the Plaintiff would have exercised reasonable care for her own safety. [354]
The Second Defendant contended that there was no more that the Second Defendant could do as: 1. He confirmed the location with the First Defendant; 2. He met the Plaintiff at Manly Hospital and explained the location and where they were going while driving to the treatment plant; 3. He explained with Mr Bell where they were heading and that the path was treacherous; 4. Both Mr Bell and the Second Defendant checked on the welfare of the Plaintiff throughout the course of the while test shoot; 5. He checked with her as to whether she was comfortable abseiling down the rocks; 6. The Plaintiff repeatedly said of the Second Defendant and Tyler Bell that she was fine and that she wanted to go to the rock pools; 7. He carried her belongings to allow her the ease of movement; 8. He ensured that she was free to decide whether she wanted to continue the photoshoot at various points of the journey; and 9. Mr Bell gave her a warning that the rock was slippery before she choose to step down onto the rocks.

[38]

Consideration

The relationship between the Plaintiff and Second Defendant is not one which falls into a category in which the existence of a duty of care is established and well recognised.
In determining the existence of a duty of care, regard can be had to the salient features referred to by Allsop P in Caltex Refineries (QLD) Pty Limited v Stavar. [355] Basten JA (with whom Simpson J agreed on this point) said that the multifactorial approach should not be treated as a shopping list of all the items of which must have application to a particular case. Rather his Honour held that it provided a list of considerations which should be considered as potentially relevant depending on the kind of case before the Court. His Honour added that it was necessary to distinguish between those considerations which were essentially factual those which require value judgments and those which may require the application of legal policy. [356]
During submissions I asked the Plaintiff's counsel to address about the Second Defendant's duty. I was referred to [9] of the Further Amended Statement of Claim [357] which referred to the Second Defendant being in control of where, when and how the photoshoot was to be conducted with the Plaintiff. No attempt was made to address the salient features, closely address the facts said to give rise to duty or to respond to the Second Defendant's submission that there was no duty as the Plaintiff was there on her own initiative and was free to leave at any time. Nor was any attempt made to explain how choosing the place of the photoshoot, and when and how it was to be conducted gave rise to a duty of care. The matter need to be addressed on principles and the relevant facts. It was not.
In a case with some analogous features, Porter J in Price v Southern Cross Television (TNT9) Pty Ltd [358] found no duty of care was owed. His Honour summarised the relevant principles as follows: [206] Ordinarily, the law does not impose a duty upon a person to take affirmative action to protect another from harm, nor to protect another from the risk of harm unless that person has created the risk: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, per McHugh J at 575-576 [81]; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, per Crennan and Kiefel JJ at 258 [127]. It might also be said that the suggested duty conflicts with the plaintiff's autonomy. The conflict exits because there is no "supervening or no overriding reason" that the plaintiff was not autonomous. That would be otherwise were control exercised at the relevant time by [the Defendant] over the plaintiff when she was vulnerable or had become vulnerable before any control was exercised: CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 per Gummow, Heydon and Crennan JJ at 406 [38].
In the instant case the parties attended as joint collaborators. The Plaintiff was not in a position of vulnerability with the Second Defendant. The evidence establishes that the Plaintiff was completely autonomous as to her decision to participate or cease to participate.
I accept that but for the Second Defendant's involvement that day, the Plaintiff would not have had the occasion to consider the journey that led to her injury. However, the Plaintiff has not identified how that contributes to the existence of a duty of care. [359]
Consistent with my findings I am not satisfied that the Plaintiff has established that the Second Defendant owed her a duty of care.
It is unnecessary in the circumstances to address questions of breach and causation.
I would, however, make some observations. The precautions identified in [275] (a)-(d) above were first raised in the course of the Plaintiff's written submissions. [360] Neither they, nor the pleaded precautions, appear to have been elaborated on in submissions by reference to the evidence. [361] Nevertheless I have not accepted that the Plaintiff was either urged or encouraged by the Second Defendant or Mr Bell. No challenge was made to the Second Defendant as the appropriateness of the disclosure he made to Ms Atwa on behalf of the First Defendant, or his failure to make earlier contact with the Plaintiff. I have addressed the question of footwear earlier.
To the extent it was contended that she should have been warned, s 5H of the 2002 Act applies so there is no duty to warn of an obvious risk of harm. The claim in so far as it relates to "appropriate footwear" had been earlier addressed.

[39]

Plaintiff's submissions

The Plaintiff further pleaded a case against the First Defendant asserting breach of contract. The Plaintiff acknowledged that this claim was subject to its success in the claim for negligence against the Second Defendant.
In this regard it contended that the contract between the Plaintiff and the First Defendant was informal, in the sense that it was not written and was wholly implied. It drew attention to the fact that the contract was one for services and it was admitted in the pleadings that the contract was one of exclusive agent and manager. [362] The Plaintiff argued that contracts for services contained an implied promise to exercise reasonable skill and performance for the relevant services. In this case, the contract was said to have commenced in 2011 was the Plaintiff was 14 years of age, at which point the Plaintiff's parents, particularly her father, were the contact point in the arrangement on behalf of the Plaintiff as she was a minor. With age, the Plaintiff became the point of contact. [363]
The Plaintiff contended that the implied contractual duty to exercise reasonable care and skill in the performance of the contract of services was breached by failing to avoid foreseeable risks of harm as were reasonable in the circumstances in particular:

Failing to require the Second Defendant to have insurance as a condition for the photoshoot; and/or
Failing to advise the Plaintiff that the particular photoshoot was to be undertaken at the Plaintiffs risk, what those risks were and that the Second Defendant was or may not be insured. [364]

It contended that implied terms beyond the duty to take reasonable care and skill are to be found as a finding of fact taking into account all of the circumstances, such that in law, relevantly, that implied terms arise from: 1. The intention of the parties; or 2. The presumed or imputed intention.
It was accepted that to imply a term as being within the intention of the parties the Court was required to find that the parties intended that term although they did not express it. To this end, the Plaintiff contended that to imply a term as being within the presumed or imputed intention of the parties required a finding that the parties would have agreed to it had they turned their minds to it. [365]
The Plaintiff drew attention to the fact that the First Defendant: 1. Represented a number of models; 2. Had a website with photos of the models appearing on it; 3. Advertised/stated on their website "unless otherwise agreed with Vivien's….the client must have and maintain appropriate insurance to cover the model during the course of the job"; 4. Negotiated all terms and conditions of each engagement with the client; 5. Exclusively and unilaterally had the right to include or exclude any potential client and/or job (a gatekeeper role) and could have imposed any precondition including checking insurance; 6. Telephoned the model to check availability; 7. Sent the model a job sheet with limited information on it; 8. Controlled every engagement "exclusively", in that the model was not permitted to find work other than through the First Defendant; 9. Sent the models to unpaid jobs so that the First Defendant gained exclusive use of the photographs to use as the First Defendant saw fit including using them on their website; 10. Controlled the career of the Plaintiff; 11. Knew (at least in this case) the details of where the photoshoot was to occur and withheld that information from the Plaintiff; 12. Deducted 20% plus expenses from all of the Plaintiff's earnings; 13. Was not impeded by any fact or circumstance from requiring the Second Defendant to produce a certificate of currency for insurance; 14. Gave no evidence as to how it went about agreeing to release the client for the insurance obligation in any one case; and 15. Did not advise the Plaintiff that it had not exercised any control or check over whether the Second Defendant was insured or not. [366]
The Plaintiff observed that it was a common requirement in business for one enterprise to require insurance certificates of currency from another business or client as a contractual or pre-contractual condition. It noted that in some commercial arrangements it would be most unusual for a certificate of currency of insurance not to be required. It gave examples of where one party will usually require the other to prove insurance, including mortgagee and mortgagor, landlord and tenant, client and builder, head contractor and subcontractor, purchaser and owners corporation, labour hire company and client, and client and valuer. [367] It noted that policy coverage may be required for the benefit of third parties. [368]
In the instant case, it drew attention to the Plaintiff's father, Mr Nihill who gave evidence that at the commencement of the contract (when the Plaintiff was a minor), it had been assumed that whatever the Plaintiff was doing and wherever she was working she was insured by the First Defendant. Mr Nihill was not cross-examined on this issue. [369] Further, attention was drawn to the Plaintiff's evidence indicating that she assumed that she had been insured as she had been with them since she was 14 years of age. [370] Furthermore, that she was safe in every job she did. [371] Attention was also drawn to the Plaintiff's evidence that she did not take out insurance for herself because she thought she had insurance with the First Defendant, which she understood was insurance for herself "or against" her. [372]
The Plaintiff contended that the intention of the First Defendant could be inferred from the following: 1. Not challenging the Plaintiff's evidence; 2. Not challenging the reasonableness of Mr Nihill's understanding; 3. Not calling any evidence of an actual or presumed intention held or if raised would have been held by the First Defendants or its officers; 4. Not calling any evidence of its usual custom or practices; 5. Being the Plaintiff's exclusive agent and manager (to be contrasted with the role of agent or manager); 6. The fact that the contract commenced when the Plaintiff was a minor, being only 14 years of age; 7. The fact that the First Defendant had complete control of negotiating all the terms and conditions of the Plaintiff's engagement and after reaching agreement with the end client, would merely send a job sheet to the Plaintiff if she was available. The Plaintiff's only input into any one job was to advise whether she was available or not; 8. The First Defendant's statement on its website: "unless otherwise agreed with Vivien's, the client…must have and maintain appropriate insurance to cover the model during the course of the job"; 9. Circumstances in which it did or did not "otherwise agree"; 10. Why, unless they intended to remain the guardian of whether any one job was insured, the statement appeared on their website; 11. The First Defendant adduced no evidence thus giving rise to a Jones v Dunkel [373] inference; and 12. Not calling evidence of what intention it would have expressed if the said term was raised at the time of or following the formation of the contract. [374]
The Plaintiff argued that it was of importance that the stated insurance arrangement between the First Defendant and the clients was that there was to be insurance "to cover the model during the course of the job…unless otherwise agreed with Vivien's."
It was argued that the First Defendant clearly considered that it had the authority of the model and that it was within the scope of the agency and management agreement to agree on the insurance arrangements to be put in place for each job. It contended that the First Defendant acted as a negotiator for the terms and conditions of the Plaintiff's work and the Plaintiff was highly dependent and indeed was "exclusively" dependent upon the First Defendant for her career and its management. It drew attention to the fact that one of the roles the First Defendant took upon themselves was one of a gate-keeper. This was demonstrated in Exhibit 11, which showed that the Second Defendant needed to ask the First Defendant for a model to be photographed and the First Defendant remained in total control as to what information was requested and upon what terms a model would be provided.
It was submitted that the First Defendant could only purport to reserve unto themselves the right to agree that any on job would not be insured by the client only where there was a corresponding and complimentary term and condition in the agency and management agreement that would permit the First Defendant, upon proper notice to the model, to agree that any one job would be at the uninsured risk of the model. In other words, it would be a matter of special arrangement between the client, the First Defendant and the model for a job to not be insured and it was the First Defendant's role as gate-keeper, exclusive manager and agent that the insurance was in place before referring the model to any one job (unless otherwise agreed with the client and the model).
The Plaintiff drew attention to the decision of The Moorcock, [375] in which Bowen LJ made it clear that the Court was not attempting in any way to reform the contract made by the parties when implying a term: This is a business transaction as to which at any moment the parties may make any bargain they please, and either side may by the contract throw upon the other the burden of the unseen and existing danger. The question is what inference is to be drawn where the parties are dealing with each other on the assumption that the negotiations are to have some fruit, and where they say nothing about the burden of this kind of unseen peril, leaving the law to raise such inferences as are reasonable from the very nature of the transaction. [376]
The Plaintiff further drew attention to the fact that the First Defendant called no evidence as to its intention, nor did it call any evidence to explain the failure to call witnesses or tender documents or other evidence as to its intentions regarding insurance. It submitted that it was therefore appropriate in the circumstances to draw an inference that the uncalled evidence would not have assisted the First Defendant. It submitted that there was no rational reason to not regard the evidence of Mr Nihill as reasonable, rational and in fact the intention as was held by both parties to the contract. It alternatively stated that Mr Nihill's evidence represented the presumed or imputed intention of the parties. [377]
The Plaintiff relied upon Jones v Dunkel, [378] and contended that consistent with that decision, the Court can draw with greater confidence any inference unfavourable to the party who failed to call the witness if that witness was in a position to give evidence about whether the inference should be drawn. Reliance in this respect was placed in the decision in Kuhl v Zurich Financial Services Australia Ltd. [379]
The Plaintiff further relied upon the rule in Jones v Dunkel as explained in RHG Mortgage Limited v Ianni. [380]
The Plaintiff contended that the inference available may be used in 2 ways. Firstly, that in deciding whether to accept any particular evidence given, either for or against that party, which relates to the matter about which the person not called as a witness could have spoken, and secondly, in deciding whether or not to draw inference of fact, which are open in relation to matters about which the person could have spoken. [381]
The Plaintiff further sought reliance on Byrne v Australian Airlines Ltd, [382] where Brennan CJ, Dawson and Toohey JJ said at 422: …the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council are frequently called in aid: (1) [the implication] must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. In laying down those criteria, it was recognised that there was a degree of overlap. Further, as Deane J has observed, 16 the cases in which the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings have been applied in this Court are cases in which there was a formal contract, complete on its face. He pointed out that a rigid approach should be avoided in cases, such as the present, where there is no formal contract. In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. And the test to be then applied was in a later case formulated by Deane J in these terms: ''The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties".
The Plaintiff put her case on both the basis that it was firstly the "actual intention", and secondly the "presumed and imputed intention".
The question that was posed was whether it was a breached of the implied terms of the contract to exercise reasonable care and skill in the performance of the relevant services, more specifically: 1. To not check (and require) the insurance of the Second Defendant; and/or 2. To not inform the Plaintiff that the job may be dangerous and uninsured. [383]
It stated that the Second Defendant gave unchallenged evidence that he explained to the First Defendant the proposed photoshoot. It contended that it was the Defendants' cases that the shoot was always to be dangerous.
It was submitted that the contracts for services contained an implied promise to exercise reasonable care and skill in the performance of the relevant services. This implied contractual duty was not affected in any way by the parallel tortious duty to take reasonable care and skill. [384] It contended that all jobs, but particularly where the job may be dangerous, the First Defendant was required to exercise reasonable care to: 1. Check the insurance of the client; and 2. Inform the Plaintiff that the job may be dangerous and uninsured if there was reason to believe this. The First Defendant was said to have failed in its duties, causing loss, it having been admitted for the purposes of these proceedings that the Second Defendant was uninsured and impecunious. [385]
The Plaintiff further pleaded that the Code of Conduct set out in Schedule 1 of the Entertainment Industry Act 2013 (NSW) [386] , effective 1 March 2014, created obligations upon the First Defendant in relation to the Plaintiff to act fairly and honestly and carry out its functions with the degree of care, diligence and honesty of a reasonable person. [387] It acknowledged that the Code is not expressed to give a cause of action to the Plaintiff, but rather, a breach of the Code gives rise to a Civil Penalty. [388] It contended that the law obliged the First Defendant to act reasonably and honestly, but the Code, if implied into the contract, would add the obligation of fairness. The Plaintiff ultimately accepted that little would to turn on this further obligation given the facts of the case. [389]
It was accepted that the Plaintiff would still have to prove a case of negligence against the Second Defendant. [390]

[40]

First Defendant's Submissions

The First Defendant drew attention to the Plaintiff's pleadings which stated: 3D. The First Plaintiff alleges that first Defendant was in breach of its contractual obligation with the Plaintiff to ensure that the Second Defendant had and maintained appropriate insurance to cover the Plaintiff during the course of the job. 3E Further, or in the alternative the First Defendant was negligent in failing to check that the Second Defendant's insurances were up to date and appropriate to cover the Plaintiff during the course of the job. 3F. By reason of the First Defendant's breach of contract and/or negligence the Plaintiff had suffered loss or damage. Particulars: a) The First Defendant had been the "exclusive agent" for the Plaintiff since she was approximately 14 years of age. b) At all material times, the Plaintiff, and her parents, had put faith and trust in the First Defendant to provide proper and reasonable protection to the Plaintiff and to act in accordance with the First Defendant's published terms and conditions during the exclusive agency arrangement that was in place, in respect of any and all jobs that the First Defendant arranged for the Plaintiff. c) The First defendant failed to advise the Plaintiff that there was no policy of insurance in place. d) At all material times, The First Defendant averred to the Terms and Conditions on its websites that all client's, including the Second Defendant, were required to have and maintain appropriate insurance. [391]
The First Defendant contended that it is unclear exactly what the Plaintiff's pleading means. In particular, it drew attention to the fact the Plaintiff had given no evidence of ever having a discussion with the First Defendant about insurance, and any understanding she may have had about insurance was not derived about anything that was said to her by the First Defendant. It drew attention to the fact that the Plaintiff's understanding was that she would have insurance which would cover claims brought against her, which it stated had nothing to do with insurance of the Second Defendant and the alleged breach. [392]
The First Defendant also drew attention the fact that the Plaintiff's father gave evidence that insurance was never mentioned, but had "always assumed whatever Michelle was doing, where she was working, that she was insured by Vivien's." [393] The First Defendant points out that he had no discussions with the First Defendant about insurance, and any understanding he had about insurance was also not derived from anything said to him by the First Defendant. It was asserted that Mr Nihill's understanding as to insurance is a little less clear but would seem to be similar to the Plaintiffs. [394]
As to the website, the First Defendant drew attention to the statement that included the following:- Unless otherwise agreed with Vivien's, the client is responsible for all taxation associated with each job, and the client must have and maintain appropriate insurance to cover the model during the course of the job. [395]
The First Defendant contended that the reference to insurance to "cover the model" appears to be directed at insurance that would respond and cover claims brought against the model. [396] The First Defendant contended that there was no clarity as to what was meant by the term "appropriate insurance", be it public liability insurance, workers compensation insurance, income protection insurance or some other form of insurance. [397]
The First Defendant submitted that there was no evidence at all to suggest that the parties intended there be any terms implied into the contract in relation to insurance as suggested by the Plaintiff, and the only references to insurance seem to be as the Plaintiff suggested, being insurance which would cover claims brought against her. [398]
Further, the First Defendant contended it could not be said that the implication of the particular "insurance" terms pleaded by the Plaintiff was the clear intention of the Plaintiff and the First Defendant, as they were clearly not necessary for the reasonable or effective operation of any contract between them. [399] The First Defendant pointed out that the Plaintiff's pleading for the need for "appropriate insurance" appears to be asserting that the First Defendant should have ensured that the Second Defendant was insured so that if the Plaintiff claimed against the Second Defendant, it would have been insured. In this case, it stated there was no evidence of such insurance. [400] It drew attention to the fact that the Plaintiff had not established that it would have sustained a loss in the circumstances unless the Second Defendant did not have the means to reach a verdict. [401]

[41]

Consideration

As I understand the Plaintiff's pleadings it was asserted that there was an implied contractual duty by reason of the 2013 Act that obliged the First Defendant: 1. To ensure that it acted honestly fairly and professionally in the interests of the Plaintiff; and 2. Carry out its functions with the degree of diligence and honesty that a reasonable person would exercise. [402]
The Plaintiff pleaded that the failure by the First Defendant to ensure that the Second Defendant was insured or to take out adequate insurance coverage itself for the Plaintiff or to tell the Plaintiff that the circumstances of the photo shoot were not insured was not honest, fair and reasonable and therefore was a breach of contract or duty.
Accepting for the moment the Plaintiff's argument that the 2013 Act applied the reference in the Code to acting honestly fairly and professionally in the interests of the Plaintiff was an objective of the Code of Conduct. The requirement of the Code itself was that a performer representative must carry the functions of a performer representative with the degree of care, diligence and honesty that a reasonable person would exercise as a performer representative carrying out the same functions in the same circumstances. [403]
The Plaintiff's submissions were based on a breach of the implied term "to exercise reasonable care and skill" rather than being "not honest fair or reasonable" in accordance with the Code. In submissions the Plaintiff conceded that the Code was not expressed to give a cause of action but rather gave cause for a civil penalty. It conceded that the law already obliged the First Defendant to act "reasonably and honestly" and that accordingly little would be added by the Code adding the obligation of fairness. [404]
The alleged breach of the implied term to exercise reasonable care and skill was not specifically pleaded. Nor did the Plaintiff open its case making an allegation that this implied obligation was breached. [405] However, breach of the implied term to take reasonable care as to what modelling jobs the Plaintiff was sent to and what terms and conditions the Plaintiff undertook modelling jobs was listed in the Plaintiff's Schedule of Issues. [406] The Schedule went beyond the pleading in this regard. Nevertheless, I will address the issue as formulated in the Plaintiff's submissions.
The Plaintiff's pleading did not identify the type of insurance that it asserts beyond referring to "adequate insurance" and "adequate insurance coverage for the Plaintiff."
In closing submissions, it was put that the case being advanced was that the First Defendant did not ensure or advise the Plaintiff of the risk of the Second Defendant not being insured for the injuries the Plaintiff suffered - that is, that the Second Defendant did not have public liability insurance. [407]
In this instance, no evidence was presented as to how an ordinarily skilled and competent professional agent would have behaved in the circumstances. The situation is not such that the asserted defaults were rudimentary and obvious in the circumstances. [408] The Plaintiff did not identify why reasonable care required a body in the First Defendant's position to check the insurance situation of a third party or inform the Plaintiff that a job may be dangerous and uninsured if there was a reason. It is no answer to this inquiry to point to position of other relationships and refer to what was described as "a common requirement in business for one enterprise to require insurance certificates from one business or client to another."
The second basis on which the claim was advanced was that there was an implied term beyond the duty to take care and skill which can be found as a matter of fact from the intention of the parties or the presumed intention of the parties. The Plaintiff pleaded in this regard that the First Defendant was required to ensure that the Second Defendant has and maintained appropriate insurance to cover the Plaintiff during the course of the job. [409]
The Plaintiff asserted that the intention of the parties could be inferred from a number of matters earlier referred to and in the alternative that Mr Nihill's evidence represents the presumed or imputed intention of the parties.
In this case the evidence falls short of implying an obligation of the kind sought by the Plaintiff.
The only evidence from the Plaintiff suggests that she thought that she had insurance "with Vivien's" for claims brought against her. Mr Nihill's evidence was that insurance was never mentioned to them but they always assumed that whatever the Plaintiff was doing and wherever she was working "she was insured by Vivien's." This not the same as the pleaded case in that it was an implied term the First Defendant was to ensure that the Second Defendant had and maintained appropriate insurance to cover the Plaintiff during the course of the job. Beyond that there was no evidence that either the Plaintiff or her father had seen the First Defendant's website. Though there is no clarity as to what "appropriate insurance to cover the model" as described in that website was intended to mean, its construction appears to be directed at insurance that would respond and cover claims brought against the model.
Nor did the Plaintiff demonstrate why such a term was necessary or reasonable for effective operation of the contract between the parties within the terms described by Deane J in Hawkins v Clayton. [410]
The evidence in my view falls short of establishing that the implied term contended.

[42]

Negligence Causing Economic Loss

The Plaintiff advanced an alternative case based in negligence contending that the First Defendant was negligent in releasing the Second Defendant from the obligation to have insurance. It contended that having had the job explained to it, the First Defendant sent the Plaintiff to the uninsured job uninformed as to the risk, lack of insurance and without adequate footwear. [411]
Arising from the circumstances earlier described, the Plaintiff appeared to describe the risk of harm for this purpose as the risk that that Plaintiff would suffer economic harm if injured by reason of the negligence of a client of the First Defendant where the client was uninsured or impecunious.
The Plaintiff contended that the risk was foreseeable in light of: 1. The First Defendant's position as the exclusive agent and manager had the roles of contract negotiator, manager and gatekeeper as to who was the end client, who the model was sent to and upon what terms the end client and the model interacted; 2. The First Defendant appreciated the risk and referenced it on its website; 3. The First Defendant was a large business that had been in operation since 1967; 4. The Plaintiff was vulnerable in the required space. [412]
The Plaintiff contended that as the First Defendant knew of the track and must have, or should have, appreciated that there was a real risk of injury and the need for insurance coverage. In particular, it drew attention to the fact that the First Defendant: 1. Agreed to the arrangement with the Second Defendant on the Plaintiff's behalf; 2. Forwarded to the Plaintiff a worksheet not detailing the job as had been described by the Second Defendant to the First Defendant; 3. Caused the Plaintiff to travel to Manly at 5.15 am with her mother who dropped her off; 4. Caused the Plaintiff to turn up with sandals only. The sandals were inappropriate and so they had to be removed leaving the Plaintiff in bare feet. She was not told to wear proper footwear; 5. Left the Plaintiff under the direction of the Second Defendant, was isolated, a long way from transport and somewhat dependent upon the Second Defendant and Mr Bell; and 6. Left the Plaintiff on a narrow slippery rock ledge needing to avoid the jutting out rock, being urged on by the Second Defendant and Mr Bell, following Mr Bell who had gym boots taking the same route as Mr Bell but without proper footwear, and then slipping and falling. [413]
It was contended that a reasonable person in the First Defendant's position would have taken the precautions of enquiring as to the danger of the assignment and acting appropriately on the information received in circumstances where: 1. The Second Defendant received the agreement of the First Defendant that the Plaintiff would be required to trek to the bottom of North Head as was explained to the First Defendant before the photoshoot was assigned to the Plaintiff; 2. No relevant information, other than the meeting point and that that the shoot was a beachwear shoot, was conveyed to the Plaintiff by the First Defendant; 3. The First Defendant had retained unto itself the right to otherwise agree as to the insurance arrangements; 4. The First Defendant was in control of the Plaintiff's management and career; and 5. The Plaintiff was not advised to bring to the photoshoot footwear appropriate for rock climbing and traversing rocks and rock ledges. [414]
The Plaintiff further contended that the negligence of the First Defendant was a necessary condition of the harm as the First Defendant sent the Plaintiff unprepared, uniformed and uninsured to the job after agreeing with the Second Defendant. It was submitted that it was appropriate for the scope of the First Defendant's liability to extent to the harm so caused reiterating that it was the First Defendant: 1. Was the Plaintiff's exclusive agent and manager; 2. Advertised on the website "unless otherwise agreed with Vivien's…the client must have and maintain appropriate insurance to cover the model during the course of the job." 3. Negotiated all terms and conditions of the engagement with the client; 4. Exclusively and unilaterally had the right to include or exclude any potential client and/or any potential client and/or job (a gatekeeper role) and could have imposed any precondition including checking insurance; 5. Telephoned the Plaintiff to check availability 6. Informed the Plaintiff that the job was a beachwear shoot; 7. Sent the Plaintiff a job sheet with limited information on it; 8. Controlled every engagement "exclusively"; that is that the Plaintiff was not permitted to find work other that through Vivien's; 9. Controlled the career of the Plaintiff; 10. Knew the details of where the photoshoot was to occur and withheld that information from the Plaintiff; 11. Was not impeded by any fact or circumstance from requiring the Second Defendant to produce a certificate of currency of insurance; and 12. Did not advise the Plaintiff that it had not exercised any control or check over whether the Second Defendant was insured or not. [415]
The First Defendant argued that to contend that someone is liable in tort for a failure to ensure someone else has got insurance was an incredibly novel proposition. [416]
In oral submissions, the Plaintiff's counsel contended that on the first day of the hearing before Judge Balla that her Honour was told from the bar table that it was common ground that the Second Defendant was uninsured and alleged that he was impecunious for satisfying any judgment. It contended that the case put was that the First Defendant did not insure, or did not advise the Plaintiff of the risk of the Second Defendant not being insured for the Plaintiff's injuries that she suffered - that is, the Second Defendant didn't have public liability insurance. Counsel for the First Defendant conceded that the Second Defendant may have said that he did not have insurance, but he had no idea as to what the Second Defendant's assets were. He otherwise accepted that the Second Defendant said he wasn't insured, but that was as far as it went. [417]
The First Defendant argued that presumably what was being said was that the First Defendant should have insisted that the Second Defendant was insured through some public liability policy and the consequence of no policy was that she could not recover.
Whatever be the position as to the Second Defendant being insured, even if duty of care was breached, the Plaintiff cannot establish that it suffered harm, there being no evidence that the Second Defendant's capacity to satisfy any verdict that the Plaintiff may obtain.
It follows this action must also fail.

[43]

Plaintiff's Evidence

The Plaintiff stated that after the fall, she was taken by helicopter to Royal North Shore Hospital, where she was until 4 December 2015. [418] When discharged, she was in a wheelchair. She was in a wheelchair for about 3 months, [419] and she stated that she commenced physiotherapy to assist with her learning to walk again. [420] She stated that she couldn't bear weight for a few months and she had to use a walking frame, crutches and was in and out of her wheelchair. [421]
The Plaintiff's evidence was that she noticed problems with her back as she started walking after she hadn't walked for three months and it "just took a bit of strain." She accepted that as far as she was concerned it was completely better although she could not say over what period. [422]
So far as physical deformities are concerned, the Plaintiff stated that there were certain shoes she cannot wear as her feet will not slide into heels, stilettos or heel wedges. She wears sneakers and sandals. [423] She stated that her right foot toes are not in alignment and her second toe is rigid. [424]
Prior to the accident, she stated that she undertook her share of domestic duties in the household. Following the accident she was only able to clean her room but has to crawl along the floor. Her evidence was that after six months she gradually increased her capacity to perform household tasks. From around the two years after the fall until now, she still requires to sit down whilst walking on her feet. [425]
After the accident the Plaintiff stated that she did voluntary work with a family friend for two hours a day "just to get out of the house." Thereafter, the Plaintiff completed a Certificate III in early childcare and accepted a job three days a week ten hours a day. She stated that she finds it too painful on her feet to do more and is constantly sitting down. [426] Her evidence was that she can only be on her feet at a time without sitting for about two hours before she needs to sit as her feet give her a lot of pain extending up her legs. [427] By the time she would get home after finishing work, she added that her feet were sore, ache and she had to put them up. [428]
The Plaintiff stated that modelling was her passion and dream job that had been cut short and she didn't see herself as returning to it. [429] She stated that even sitting down her legs and feet get stiff. However she accepted that she could do a job that enabled her to stand or sit as needed, although that was not something that she wanted to do. [430]

[44]

Plaintiff's Medical Evidence

Following the subject accident, the Plaintiff was retrieved by helicopter and airlifted to the Royal North Shore Hospital. A summary of her treatment is contained in the report of Dr WGD Patrick, General, Vascular and Trauma Surgeon, dated 19 February 2019. [431] The report records that the Plaintiff, upon being taken to the Emergency Department, was noted to have no significant head injury, pain localised to the bilateral ankles and some complaint of back pain with no numbness or loss of sensation initially. Dr Patrick proceeded to state: It was felt that she had sustained likely bilateral calcaneal fractures. I have reviewed copy of what appears to be the entirety of extensive RNS Hospital Medical Records. She has come to surgical intervention by orthopaedic surgeon Dr Dimitri Papadimitriou on 26 November 2015, some eight days post-injury. She has come to open reduction and internal fixation (ORIF) bilateral calcaneal fractures with similar procedures carried out, right foot first and then left with fixation with Synthes lateral calcaneal plate and screws bilaterally. The pre-op imagining studies had demonstrated comminuted fractures at the calcaneus bilaterally with reduction of Bohler's ankle to 5 degrees on the right and 7 degrees on the left. There was also extension of the fracture lines into the subtalar joints bilaterally, and on the left side into the calcaneo-cuboid articulation. Lumbar spinal X-rays appeared to show an abnormal appearance to the sacrum which was suspicious for a fracture at the S3 level. CT scan was suggested. CT of the pelvis showed "a comminuted non-displaced fracture involving the right posterior part of the inferior pubic ramus. Right hand X-ray showed no definite abnormality nor foreign body. The right hand was significant grazed and was scrubbed at the time of her calcaneal surgery. I note also that imaging studies had showed avulsion injury at the interior talo-fibular ligament on the right and a small shear type fracture involving posterolateral talus and a small impacting fracture within the postero-lateral navicular bone on the left. [432]
Dr Patrick recorded that the Plaintiff had extensive physiotherapy and rehabilitation and was followed up by her treating General Practitioner Dr Judith Rogley. It was also noted that she was subsequently referred to see a foot and ankle surgeon Der Les Grujic. The Plaintiff reported that she was having problems with contractures of the long flexors to her great toe and second toe, both feet, right worse than left, with lack of movement, clawing and pain. It was known that she had difficulty with stairs and walking up hills.
The Plaintiff carried out further surgery with Dr Grujic at North Shore Private Hospital on 28 November 2016 where the bilateral calcaneal plates were removed and arthrolysis of both subtalar joints was carried out. Dr Grujic then carried out a Z-lengthening of the problematic long flexors correcting the claw deformity of the toes. Subsequent to this surgery, she was in a wheelchair for some time with bed to chair transfers.
Dr Patrick notes that the Plaintiff was thereafter referred onto Ms Catherine Stephens, physiotherapist, and continued to be followed up by Dr Grujic, and there was good progress with the physiotherapy.
In terms of the Plaintiff's current symptoms, Dr Patrick records that the ankles and feet are clearly significantly less flexible. The Plaintiff had diminished movements and associated scarring from the surgeries. Low back pain was also noted to have become a definite problem with some stiffness. Although Dr Grujic's surgery has been described as "very helpful", it was noted that the Plaintiff still has discomfort with her second toe right foot "hitting the floor". [433] Following examination, Dr Patrick opined that the diagnosis consequent upon the accident are:-

of bilateral fracture of calcaneus (heel bone) both right and left and with extension into subtalar joints both right and left, and
calcaneo-cuboid articulation on the left, and
comminuted non-displaced fracture involving right posterior part of inferior pubic ramus (small pelvic fracture probably with no long term sequelae), and
contractures of toes treated surgically with now just some residual flexion contracture second toe right foot, and
likely lumbar spinal injury with now demonstrable very marked muscular guarding bilaterally in the paravertebral musculature at lumbar spine in a 22 year old. [434]

Dr Patrick detailed in his report: Michelle Nihill is left with marked stiffness at both ankle joints and subtalar joint bilaterally, as well as the surgical scarring and some associated pigmentation. There has also been development of some degree of depression, which is understandable - but I will leave further comment in this regard to relevant qualified specialists. [435]
Dr Patrick opined the impact of the accident was such that it would appear that many aspects of fulltime work as a model would be beyond her with the limitations now with her low legs and spine. He further states that the Plaintiff would have difficulty with work activities which involve her being on her feet for long periods of time, and she would have difficulty with work activities involving significant squatting or getting down low to the ground or floor. He noted that there would also be some limitations in childcare/pre-school activities because of her ongoing permanent relative stiffness at both ankle joints and particularly subtalar joints bilaterally. Dr Patrick noted that as a consequence of the long-term effects of the injuries, whatever her career might be, it may be well be the case that her effective working life might be shortened by as many as ten years into longer term, and an increased likelihood of her requiring days off work to accommodate for periods of exacerbation/flare-up of symptoms.
Dr Patrick also recorded that the Plaintiff had gross muscle guarding in the lumbar paravertebral musculature, and there may well be some associated discopathy at the lumbar spine, which he described as being frequently associated with bilateral calcaneal injuries, notwithstanding that she did not satisfy the criteria for a radiculopathy. [436]

[45]

Defence Medical Evidence

Dr Roger Rowe, an Orthopaedic Surgeon who examined the Plaintiff on behalf of the First Defendant on 3 July 2019, produced a report of the same date. [437]
On examination, he recorded that both feet revealed no deformity and that there was L shaped surgical scar over the lateral aspect of both heels. The proximal limb of the scar was 4cm in length and the distal limb was 7cm in length on both sides. He also noted that there was a slight indentation of the soft tissue in the region of the scars, and that the scars themselves felt numb but there was no other numbness or altered sensation in the feet. Both the subtalar and mid-tarsal joints were stiff, but there was no tenderness in the heels noted, nor were there any abnormal callosities. He recorded a slight clawing of the right second toe, and both big toes had extension to only 10 degrees and normal flexion. He observed no obvious muscle wasting. He recorded that the pelvis was symptom free, and the hip joints were described as normal. [438]
Under the heading of "Diagnosis", Dr Rowe stated: As a result of the subject fall Ms Nihill sustained intra articular fractures of the os calcis bilaterally for which she underwent reduction and internal fixation. She subsequently required removal of the internal fixation metal as well as release of the long flexors of the right big and second toes. Her other injury was that of an undisplaced fracture of the inferior pubic ramus on the right side of the pelvis which required no treatment and is now symptom free. [439]
Dr Rowe opined that the long-term prognosis was that of an increased risk of osteoarthritic change in the subtalar and perhaps the mid tarsal joints as a direct consequence of the fractures. He noted that in later life, this problem may require analgesic medication or possibly surgical treatment. No other injury to the ankle joints was noted, and therefore there will be no need for the treatment of her ankle joints in the future, although there was a mild restriction of ankle extension on both sides as a result of soft tissue contraction rather than ankle joint pathology. In terms of treatment, Dr Rowe stated that from an orthopaedic or musculo skeletal point of view, the Plaintiff was not in receipt of any specific treatment other than the wearing of orthotics, and this was reasonable and likely to be long term. He noted that she did not need to visit any medical practitioner, physiotherapist or rehabilitation provider as none of this will provide her with any benefit at this stage. He mentioned, however, that there is a possibility of degenerative change in the tarsal joints in later life which may require analgesic or anti-inflammatory medication or possible surgical treatment by way of fusion.
Dr Rowe expressed the view that the Plaintiff would be able to return to modelling in a limited capacity as long as such modelling did not require her to undertake any of the activities described that would increase her symptoms. He noted that she had commenced employment for 10 hours per day on a 3 days per week basis as a child care worker and remains fits for this work. He considered that she could do this on a full time basis. [440]

[46]

Consideration

I accept that the Plaintiff sustained bilateral calcaneal fractures requiring open reduction and internal fixation. I also accept that there was an extension of the fracture lines into the subtalar joints bilaterally, and on the left side into the calcaneo-cuboid articulation. I also accept that a CT of the Plaintiff's pelvis showed a comminuted non-displaced fracture involving the right posterior part of the inferior pubic ramus. I accept Dr Patrick's opinion that this is a small pelvic fracture probably with no long term sequalae. Dr Rowe appears to have agreed finding no pelvic abnormality.
Apart from the surgery carried out in the immediate aftermath of the accident, the Plaintiff had surgery by Dr Grujic carrying out a Z-lengthening of the problematic long flexors correcting a claw deformity of the toes.
I accept Dr Patrick's opinion that this has left some residual flexion contracture in the second toe of the right foot. I also accept that the Plaintiff is left with marked stiffness at both ankle joints and subtalar joint bilaterally, as well as the surgical scarring and some associated pigmentation. I accept Dr Rowe's recording that the scars themselves felt numb but there was no other numbness or altered sensation in the feet. Dr Rowe noted no other injury to the ankle joints that will require further treatment, although there was a mild restriction of ankle extension on both sides as a result of soft tissue contraction rather than ankle joint pathology.
Following surgery, the Plaintiff was confined to a wheel chair for three months progressing to a walking frame and crutches. [441] I accept that whilst the Plaintiff did have some spinal symptoms following her recommencing walking these have now resolved. Dr Patrick reported that the Plaintiff made a good progress with physiotherapy. This was confirmed by the Plaintiff's own evidence. [442]
I accept that the condition in her legs and feet was still improving but that she could only be on her feet for about two hours before experiencing pain requiring her to sit.
Dr Patrick remarked that the Plaintiff had likely lumbar spinal injury with now demonstrable very marked muscular guarding bilaterally in the paravertebral musculature at lumbar spine. However, the Plaintiff's evidence is to the effect that this has resolved. [443]
I accept that the Plaintiff's the ankles and feet are clearly significantly less flexible. I also accept Dr Rowe's opinion that the Plaintiff is at an increased risk of osteoarthritic change in the subtalar and perhaps the mid-tarsal joints as a direct consequence of the fractures. I further accept Dr Rowe's opinion that there is a possibility of degenerative change in the tarsal joints in later life which may require analgesic or anti-inflammatory medication or possible surgical treatment by way of fusion. That aside I further accept that there is no need for specific treatment at present other than orthotics.

[49]

Plaintiff's Psychiatric Evidence

At the request of the Plaintiff's General Practitioner she came to see Dr Nicole Burston, Consultant Psychiatrist, who produced a report on 9 June 2017. [448] Dr Burston noted that in terms of psychiatric symptoms the Plaintiff experienced Post-Traumatic Stress Disorder [449] which was prevalent to the date of the report. Initially, this included flashbacks of her falling on a daily basis, reported to have occurred every time she closed her eyes. At the date of the report she had the occasional flashback and does not have nightmares. However, she continued to become distressed when seeing a cliff, and avoids going anywhere near then. Flashbacks are still experienced when she is low in mood.
In terms of depressive symptoms, Dr Burston noted that the Plaintiff's main fear is that she will never regain full function in her feet and may never be able to work again as a model. Her function has been significantly impaired in that she is unable to drive and cannot wear high heels, and can do limited work in the gym. While she continues to derive pleasure from some things, it is not to the same extent. She recorded that initially the Plaintiff had been very good at doing her rehabilitation exercises, but that ceased a month prior to the report (around May 2017), and she was upset that her physiotherapist told her that her feet were not improving. Dr Burston noted that the Plaintiff's concentration is poor and self-esteem is very low, and that she lacks confidence. She also notes that she feels guilty about not being able to work and being financially reliant on her parents. She notes that at time she has feelings of anger but most of the time she feels anxious and sad. The Plaintiff was also noted to have developed some symptoms of Obsessive Compulsive Disorder.
Overall, Dr Burston opined that the Plaintiff had developed Major Depression, symptoms of Obsessive Compulsive Disorder and symptoms of PTSD after the accident. These symptoms are attributed to the accident and the ongoing uncertainty regarding whether the Plaintiff will be able to recover. In terms of management, she initially opined that the Plaintiff commence on Fluoxetine 20mg. She noted that the Plaintiff experienced side effects of some agitation and palpitations, and therefore recommended that she cease Fluoxetine and commence Escitalopram 10mg.
At the request of her solicitors, the Plaintiff saw Dr Thomas Oldtree Clark, Consultant Forensic Psychiatrist. Dr Clark opined in his report dated 24 April 2019 [450] that the Plaintiff has been through an attenuated Adjustment Disorder, which now manifests as a Specific Phobia. This is a continuing adjustment process, and noted that it has responded well to antidepressants. The depressive element he found to be persistent. He stated that an Adjustment Disorder is time limited by its nature, and it was presently quiescent. However, the Plaintiff is manifesting a Specific Phobia and has not been desensitised or detraumatised. Dr Clark found this directly caused by the accident on 18 November 2015. Dr Clark also provided a supplementary report dated 25 July 2019, [451] in which he indicated, having read the report of Dr John Roberts dated 14 June 2019 who was called on behalf of the First Defendant, his opinion did not change.

[50]

Defendant's Psychiatric Evidence

Dr John Roberts, psychiatrist, saw the Plaintiff on 30 May 2019 and reported on 14 June 2019. [452] By the time the Plaintiff attended his surgery on 30 May 2019, her psychiatric condition had remitted to the extent that she had virtually no symptoms of heightened anxiety of an inappropriate degree and no reactive could be diagnosed in her as of that date. On the assumption that at one point in time she experienced anxiety and depression and certain symptoms of PTSD, Dr Roberts stated that the Plaintiff no longer had such symptoms, and she denied that she was currently depressed and asserted that she had reverted to her usual bubbly self apart from an occasional "down". [453] He noted that she worked at a child care centre which was arduously physical work and correlated with a work capacity. He acknowledged, however, that the antidepressants she was taking could be a factor in diminishing symptomatology. He reiterated that a gradual reduction in the use of Escitalopram could be trialled. He also noted that the Plaintiff indicated that she wished to return to modelling after the litigation had concluded.
Dr Roberts stated he would not diagnose her with a specific phobia in regards to cliffs and rocks but would understand the degree of apprehension in the Plaintiff had in such an environment. He stated that the reason he would reject the phobia being present is that there was no evidence of symptoms of heightened anxiety which would inevitably occur in a phobic state. In the absence of a current diagnosable psychiatric condition in those areas which would be normally considered under the psychiatric impairment rating scale, he assessed that the Plaintiff's activities and function would be Class 1, which is defined as no deficit or minor deficit attributable to the normal variation in the general population. [454]
Dr Roberts found there is no contraindication to the Plaintiff returning to modelling based on her psychiatric/psychological condition. He noted that the Plaintiff had not attended a psychiatric for 1 ½ years previously and had only attended upon Dr Burston twice. He noted that the depressive medication would have assisted in diminishing pain perception and would have reduced anxiety and improved mood, but with the effluxion of time this medication should be weaned gradually in order to determine whether ongoing treatment with antidepressants is reasonably necessary. He noted that the diagnosis of a phobic condition made by Dr Clark would require that anxiety symptoms be present, which was not the case. The presence of earlier flashbacks suggested a potential diagnosis of PTSD, but he noted that those flashbacks are no longer occurring and there is no current evidence of PTSD since the flashbacks and PTSD are associated with heightened anxiety of inappropriate degree. [455]

[51]

Consideration

I accept that in the aftermath of the injury the Plaintiff developed PTSD which included daily flashbacks. I also accept that the ongoing disability to her feet leading to restrictions in her day to day functioning has impacted on her in terms of her concentration, self-esteem, the ability to be financially independent and associated anxiety and low mood. I further accept that post-accident, the Plaintiff has developed major depression and symptoms of obsessive compulsive disorder.
However, I also accept that the intensity of the Plaintiff's symptoms have settled with the assistance of medication and the improvement in her physical condition. By 9 June 2017, when Dr Burston saw the Plaintiff, symptoms of flashbacks were occasional and included when the Plaintiff saw a cliff or was low in mood.
On the evidence of Dr Roberts, I am satisfied that by the time the Plaintiff attended his surgery on 30 May 2019, her psychiatric condition had remitted to the extent that she had virtually no symptoms of heightened anxiety of an inappropriate degree.
Whilst Dr Clark diagnosed a specific phobia, he stated that it was time limited. Dr Roberts stated that at the time of his consultation the Plaintiff did not have a specific phobia but did have a degree of apprehension to cliffs and rocks. Dr Robert's explanation for rejecting phobia being present was that there was no evidence of symptoms of heightened anxiety which would inevitably occur. That explanation was not specifically responded to by Dr Clark despite an opportunity being afforded for him to do so. In the circumstances, I prefer the opinion of Dr Clark on this question.
Whilst the Plaintiff states that she has not been able to beat depression, her psychiatric condition is such that on her own evidence her compulsive disorder has resolved alongside her physical condition improving. Whilst the Plaintiff has sought to take herself off medication unsuccessfully, it would be appropriate to trial a reduction in her consumption as suggested by Dr Roberts.
Overall, whilst I accept that the Plaintiff does still experience some symptoms, as she has described her condition has improved significantly since that of her post-injury circumstances.

[54]

Future out of Pocket Expenses

The Plaintiff has claimed an amount of $100,206.13. This was based on Dr Patrick's assessment, that the Plaintiff would have ongoing treatment needs, including General Practitioner consultations with approximately 8-10 sessions per year average, costing $105 each for a lifetime average including or attention to ankles/feet as well as spine. In addition, he opined she would need approximately one specialist consultation per year (for example specialist rheumatologist, specialist orthopaedic/foot and ankle surgeon, specialist spine surgeon, specialist sports physician), at a cost of $225. He also allowed for four sessions of physiotherapy a year for a lifetime, costing $125 per session. Despite proposing a figure on an annual basis he commended by saying that the allowances should not be on a regular basis and just as clinically indicated. Dr Patrick also proposes medications at approximately $550 per year, being in the nature of anti-inflammatory/analgesic medication and antidepressant medication. [458]
Dr Patrick also made an allowance of $26,000 for ankle arthrodesis surgery, which he considered in the long term a possibility if the Plaintiff developed significant post-traumatic osteoarthritic change at the ankle joint and /or subtalar joint either left or right or both. He further indicated that he would recommend an allowance of $5,200 for radiological studies as a one off. [459]
Dr Clark also recommended that the Plaintiff undertake psychiatric treatment, which may require some two to three years. On this basis, the Plaintiff claims $450 per month for three years for treatment and $200 per month for medication for the same period. [460]
The Defendant, for its part, conceded that the Plaintiff may require some conservative management for her heel injury at some stage in the future, and recognised that there was a possible chance that the Plaintiff would require surgery in the longer term as opined by Dr Rowe. [461]
On this basis, it proposed an allowance of $20,000.
The Plaintiff indicated in her evidence that she would undertake surgery in the future if so advised. [462] I accept that an allowance should be made in this regard into the future including for surgery, radiology physiotherapy.
However, I do not accept the extent of the future treatment costs recommended by Dr Patrick. It is not apparent from the description given that the extent of these costs is reasonable and necessary. The back in particular is symptom free and the Plaintiff is not in receipt of specific treatment other than orthotics. I prefer the opinion Dr Rowe who states that the Plaintiff does not need to visit any medical practitioner, physiotherapist or rehabilitation provider as this will not provide benefit to her.
Nor would I accept that the Plaintiff requires ongoing psychiatric care to the extent assessed by Dr Clark. The Plaintiff has seen Dr Burston on only two occasions. The Plaintiff stated that she was now completely over her compulsive disorder and her other symptoms have diminished and she gave no indication in her evidence of intending to pursue follow up psychiatric treatment.
I accept that some allowance for anti-depressant medication and psychiatric care should be allowed with the aim of facilitating a longer term reduction of anti-depressant intake.
I also accept that the Plaintiff will require orthotics into the future.
Overall I would allow a buffer amount of $30,000 which includes an allowance for surgery and associated costs into the future.

[55]

Domestic Assistance

The Plaintiff made a claim for domestic assistance pursuant to sections 15 and 15A of the 2002 Act. For past domestic assistance, the Plaintiff claimed a total of $52,630.44, comprising of the following: [463] 4 December 2015 to 4 June 2016 (26 weeks) $11,692.20 15 hours per week x 26 weeks x $29.98 per hour 5 June 2016 to 27 November 2016 (25 weeks) $4,465.50 6 hours per week x 25 weeks x $29.77 per hour 29 November 2016 to 9 May 2017 (26 weeks) $11,758.50 15 hours per week x 26 weeks x $30.15 per hour 30 May 2017 - date (128 weeks) $24,714.24 6 hours per week x 128 weeks x $32.18 per hour
The Defendant submitted that there was no evidence of the actual hours that the Plaintiff needed assistance immediately after the accident. Nevertheless, the Defendants conceded that the Plaintiff would have required some domestic assistance from 6-12 months following the accident, according to the opinion of Dr Rowe. On this basis, it allowed 7 hours per week at the rate of $28.50 for 12 months and contended that the sum of $10,374.00 was appropriate.
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]
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.

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.

[56]

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]
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]
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]
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]
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.
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]
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]
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]
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]
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.
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]

[57]

Ms Priscilla Leighton-Clark

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.
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]
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]
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.

[58]

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

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.
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.
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]
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]

[59]

Consideration

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]
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.
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: 1. Non-economic loss: $197,500 2. Past out of pocket expenses: $12,682 3. Future out of pocket expenses: $30,000 4. Past domestic assistance: $10,819.34 5. Past economic loss: $86,800 6. Past loss of superannuation: $8246 7. Future economic loss: $175,723.90 8. Future loss of superannuation: $20,208.26 TOTAL: $ 541,979.50

[61]

Endnotes

T 182.3-.39.
[2020] NSWCA 65.
T 37.05-.09.
T 37.10-.14.
T 37.23-.26.
T 38.29-.31.
T 38.33-.45.
T 38.47-.49.
T 38.17-.23.
T 39.01-.12.
T 39.21-.23.
T 39.45-.46.
T 39.47-.50.
T 40.01-.08.
T 55.44-56.04.
Exhibit B, Email from Catherine McGill dated 14 June 2012.
First Defendant's Amended Defence at [2a]; T 65.26-.47.
T 65.09-.37. See also Exhibit E, six email chains dated 10/08/2015 to 02/11/2015.
T 65.49-66.17.
T 66.26-.29.
T 66.31-67.20.
T 67.24-.47.
T 62.42-.45.
T 64.45-.47.
T 64.49-65.07.
Exhibit D, Plaintiff's Tender Bundle.
T 71.12-.20.
T 71.35-.42.
T 117.06-.21.
T 117.23-.42.
T 76.33-.40.
T 77.11-.13.
T 118.14-15.
T 118.21-.24.
T 122.05.
T 122.07-.08.
T 122.17-.19.
T 122.25-.30.
T 122.45-.50.
T 123.07-.12.
T 126.33-127.44.
T 127.46-128.01.
T 128.20-.45.
T 149.22-.27.
T 149.29-.32.
T 149.34-.37.
T 149.39-.41.
T 149.43-.49.
T 150.08-.12.
T 152.13-.19.
T 152.21-.27.
T 153.01-.04.
T 72.11-.23.
T 72.31-.32.
T 72.34-73.06.
T 73.08-.13.
T 74.16-.18.
T 74.20-.34.
Exhibit D, Tab 15 at 111-12.
T 76.06-.14
T 158.25-.38.
Exhibit 11.
Exhibit D, Tab 15 at 112.
T 159.34-.38.
T 170.24-.35.
T 170.40-.50.
T 171.17-.22.
T 171.24-.25.
T 171.34-.37.
T 177.41-178.02.
T 187.39-188.01.
T 188.03-.07.
T 188.09-.14.
T 188.16-.22.
T 190.32-.43.
T 191.12-.14.
T 40.10-.15.
T 40.17-.20.
T 41.07-.18.
T 41.20-.22.
T 40.46-.48.
T 118.44-.47.
T 77.27-78.17.
T 79.43-.46.
T 135.08-.16.
T 135.39-.45.
T 135.50-136.02.
T 136.04-.07.
T 136.09-.14.
T 136.16-.18.
T 160.07-.30.
T 160.41-.45.
T 160.30.
T 161.15-.18.
T 161.20-.23.
T 183.20-.27.
T 183.45-.47.
T 183.49-184.02.
T 40.42-.44.
T 41.42-.49.
T 42.01-.06.
T 80.47-81.21.
T 93.42-.45.
T 94.37-.39.
T 94.14-.49.
T 82.44-.83.06.
T 83.26-.27.
T 83.32-.43.
T 83.45-.46.
T 84.28-.38.
T 84.44-.47.
T 90.29-91.07.
T 91.24-.26.
T 91.35-.37.
T 81.41-.46.
T 81.45-82.08.
T 82.10-.16.
T 82.30-.37.
T 136.26-.137.01.
T 137.03-.05.
T 137.07-.09.
T 137.29-.30.
T 137.29-.39.
T 137.41-.45.
T 137.47-.48.
T 138.06-.13.
T 138.24-.29.
T 161.25-.34.
T 161.42-.43.
T 161.45-162.11.
T 179.09-.11.
T 162.30-.39.
T 162.41-.49.
T 163.09-.15.
T 163.17-.24.
T 163.26-.42.
T 164.01-.16.
T 184.04-.48.
T 186.43-.44.
T 186.48-187.07.
T 187.09-.11.
T 184.04-.07.
T 42.11-.15.
T 42.17-.25.
T 42.27-.29.
T 42.35-.39.
T 42.41-.43; T 120.01-.05.
T 42.50-.43.07.
T 43.30.
T 92.08-.33.
T 93.07-.09.
T 93.11-.13.
T 96.19-.21.
T 96.44-.49.
T 97.38-.41.
T 97.43-.46.
T 97.29-.33.
T 97.48-.49.
T 98.01-.04.
T 98.06-.09.
T 93.18-.25.
T 93.30-.35.
T 138.35-.36.
T 138.41-.43.
T 139.20-.24.
T 139.32-.36.
T 140.08-.13.
T 139.38-.45.
T 139.47-.49.
T 140.01-.03.
T 140.35-.36.
T 140.38-.39.
T 140.41-.42.
T 140.41-141.02.
T 141.17-.22.
T 164.45-.48.
T 165.04-.14.
T 165.18-.29.
T 165.40-.48.
T 165.50-166.01.
T 166.06-.10.
T 166.12-.16.
T 166.23-.28.
T 173.11-.42.
T 174.32-.34.
T 174.43-.47.
T 185.05-.06.
T 185.11-.14.
T 185.22-.24.
T 185.27-.30.
T 185.32-.34.
T 185.36-186.01.
T 187.13-.16.
T 187.18-.20.
T 187.22-.25.
T 98.31-.39.
T 98.41-.43; T 114.39-115.01.
T 141.39-.44.
T 141.46-142.02.
Hereinafter referred to as the "1995 Act".
T 104.43-105.27.
T 112.05-.39.
T 166.30-.49.
T 167.01-.05.
T 167.08.
T 167.19-.22.
T 167.24-.26.
T 175.14-.19.
T 175.21-.26
T 186.10-.18.
T 186-22-.23.
T 43.35-.48.
T 44.05-.13.
T 44.26-.29.
T 44.31-.32.
T 101.40-.43.
T 101.45-.102.01.
T 114.13-.24.
T 114.26-.33.
T 115.39-.49.
T 116.01-.03.
T 142.07-.09.
T 142.11-.18.
T 142.26-.30.
T 142.32-.35.
T 43.35-44.32.
T 145.40-.43.
T 113.05-.33.
T 144.32-.35.
T 144.44-.48.
T 144.50-145.03.
T 115.39-.49.
T 116.01-.03.
T 167.43-.47.
T 167.49-168.28.
T 175.28-.33.
T 180.48-.50.
T 181.01-.10.
T 180.01-.09
T 180.17-.18.
T 179.44-.46. See also Exhibit F, Photographs of Tyler Bell.
T 186.26-.28.
T 186.30-.35.
T 139.41-.42.
T 139.47-.49.
T 174.36-175.05.
T 98.31-.39 and T 114.39-115.30.
T 44.27-.29.
T 167-.44-.47 and 186.31-.35.
(2015) 89 ALJR 824; [2015] HCA 31.
T 222.41-223.10.
[2017] NSWCA 121 (Macfarlan and Simpson JJA agreeing).
(2017) 340 ALR 368; [2017] HCA 2.
T 180.01-03.
(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].
(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.
(2005) 220 CLR 517 at [43] per McHugh J, citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J.
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).
Hereinafter referred to as "the 2002 Act".
Goode v Angland [2017] NSWCA 311 at [185] applied in Singh v Lynch [2019] NSWSC 1403 at [65].
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].
S 5K of the 2002 Act.
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].
T 201.21-.22.
(2017) 96 NSWLR 503; [2017] NSWCA 311.
First Defendant's Written Submissions at [37] and Second Defendant's Written Submissions at [20].
Exhibit 1 at timestamp 00:45-00:52.
Exhibit 1 at timestamp 01:14.
Exhibit 1 at timestamp 09:10.
First Defendant's Written Submissions at [38]-[39] and Second Defendant's Written Submissions at [20].
T 26.41-.47.
T 27.9-.16.
T 28.22.26.
T 29.44-.50.
T 30.34-.36.
T 103.21-105.27.
T 246.40-247.11.
(2017) 96 NSWLR 503; [2017] NSWCA 311 at [194]-[198].
T 251.38-.41.
See also Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [86].
Plaintiff's Written Submissions at 24.
[2006] NSWCA 32 at [43].
Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780 at [95].
Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 at 399 per Gummow J.
T 97.45-.46 and T 139.33-.36.
[2002] NSWCA 204.
[2002] NSWCA 204 at [74].
T 256.17-.20.
(2015) 324 ALR 355; [2015] NSWCA 219.
(2006) 65 NSWLR 418; [2006] NSWCA 32.
(2006) 65 NSWLR 418; [2006] NSWCA 32 at [131].
(2006) 65 NSWLR 418; [2006] NSWCA 32 at [91-[92].
[2006] Aust Torts Reports 81-831; [2006] NSWCA 17 (with Hunt AJA and Adams J agreeing).
[2006] NSWCA 200 (with McColl JA and Hunt AJA agreeing).
Hume v Paterson [2013] NSWSC 1203 at [127]-[128] per Campbell J.
T 98.06-.09.
See T 113.01-.02 and 115.39-.49.
T 116.01-.03.
(2006) 65 NSWLR 418; [2006] NSWCA 32.
[2014] NSWCA 129.
First Defendant's Written Submissions at [33].
Second Defendant's Written Submissions at [24].
Plaintiff's Written Submissions at 27.
Fallas v Mourlas (2006) 65 NSWLR 418 per Tobias JA at [98].
T 264.25 and T 264.41-.44.
[2020] NSWCA 65 (with Payne and White JJA agreeing).
[2002] NSWCA 204.
T 250.15-.17.
T 268.38-270.16.
T 249.38-.47.
First Defendant's Written Submissions at [56]-[57].
Second Defendant's submissions at [26].
(2015) 209 LGERA 220; [2015] NSWCA 260 (with Ward and Gleeson JJA agreeing).
T 175.27-.33.
Further Amended Statement of Claim at [20.1] and [26.1].
T 258.36-.41.
T 265.36-.44; Plaintiff's Written Submissions at 18.
Defendant's Written Submissions at [33].
Second Defendant's Written Submissions at [18].
Further Amended Statement of Claim at [25] and [31].
(1980) 146 CLR 40 at 48 per Mason J.
(2002) 211 CLR 317; [2002] HCA 35 at [99] per McHugh J.
Further Amended Statement of Claim at [21].
Plaintiff's Written Submissions at 25.
T 262.27-.30.
Plaintiff's Written Submissions at 25.
Shaw v Thomas [2010] NSWCA 169 at [44] (with Leeming and White JJA agreeing).
Plaintiff's Written Submissions at 26.
Plaintiff's Written Submissions at 27.
T 261.37-.43
First Defendant's Written Submissions at [66]-[67].
First Defendant's Written Submissions at [68].
T 197.29-.33.
First Defendant's Written Submissions at [72].
[2018] NSWCA 330.
First Defendant's Written Submissions at [76].
First Defendant's Written Submissions at [82].
T 208.25-.26.
T 208.26-.32.
T 208.37-.44.
First Defendant's Written Submissions at [87]-[88].
First Defendant's Written Submissions at [90]-[91]. See also [141] of these reasons.
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [35]-[37].
Exhibit 11.
Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 at [70] per Garling J.
Shaw v Oakdale Junior Motorcycle Club Inc [2020] NSWSC 180 at [201] citing Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [5] per Beazley P.
[2018] NSWCA 330 at [29].
[2020] NSWCA 65 at [56].
First Defendant's Written Submissions at [78].
S 5B(2)(c) of the 2002 Act.
S 5C(b) of the 2002 Act.
Plaintiff's Written Submissions at 43. See also Further Amended Statement of Claim at [27].
Second Defendant's Written Submissions at [12].
Second Defendant's Written Submissions at [36].
(2009) 75 NSWLR 649; [2009] NSWCA 258 at [103] with Simpson J agreeing).
(2009) 75 NSWLR 649; [2009] NSWCA 258 at [172].
T 266.12-.16.
(2015) Aust Torts Reports 82-208; [2014] TASSC 70.
See Price v Southern Cross Television (TNT9) Pty Ltd (2015) Aust Torts Reports 82-208; [2014] TASSC 70 at [209].
See Plaintiff's Written Submissions at 43.
See Plaintiff's Written Submissions at 43.
Further Amended Statement of Claim at 2; First Defendant's Defence to Further Amended Statement of Claim at 2.
Plaintiff's Written Submissions at 28.
Plaintiff's Written Submissions at 28. Whilst the Further Statement of Claim at [3E]- [3F] also pleaded a breach of tortious duty in this regard this was not ultimately advanced: see Plaintiff's Statement of Issues and the Plaintiff's Written Submissions at 4-5 and 29.
Plaintiff's Written Submissions at 28.
Plaintiff's Written Submissions at 29.
Plaintiff's Written Submissions at 29.
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44.
Plaintiff's Written Submissions at 30.
T 66.01-.02.
T 66.16-.17.
T 67.38-.47.
(1959) 101 CLR 298; [1959] HCA 8.
Plaintiff's Written Submissions at 31-32.
(1889) 14 PD 64.
The Moorcock (1889) 14 PD 64 at 70.
Plaintiff's Written Submissions at 33.
(1959) 101 CLR 298 at 308, 312, 320-321.
(2011) 243 CLR 361; [2011] HCA 11 at [63] per Heydon, Crennan and Bell JJ.
[2015] NSWCA 56 at [75]-[79] per McColl JA (with Sackville AJA agreeing) and [120] per Emmett JA (who agreed with McColl JA and Sackville AJA in slightly different terms).
See Sanches-Sidiropoulos v Canavan [2015] NSWSC 1139 at [39] and Le v Brydens Lawyers [2017] NSWSC 180 at [11], both citing RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [79]
(1995) 185 CLR 410; [1995] HCA 24.
Plaintiff's Written Submissions at 37.
Astley & Ors v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6.
Plaintiff's Written Submissions at 37.
Hereinafter the 2013 Act.
Plaintiff's Written Submissions at 37.
S 43 of the 2013 Act.
Plaintiff's Written Submissions at 38.
T 266.18-.33.
Plaintiff's Further Amended Statement of Claim [3D]-[3F].
T 67.15-.47; First Defendant's Written Submissions at [106].
T 150.10-.12.
First Defendant's Written Submissions at [108].
First Defendant's Written Submissions at [110].
First Defendant's Written Submissions at [111].
First Defendant's Written Submissions at [112].
First Defendant's Written Submissions at [113].
First Defendant's Written Submissions at [114].
T 226.31-.34.
T 227.01-06.
Further Amended Statement of Claim at [2G].
Schedule 1 Clause 2 of the 2013 Act.
Plaintiff's Written Submissions at 38, citing National Australia Bank v Rice [2015] VSC 10.
T 33.37-34.24.
Plaintiff's Schedule of Issues at 2 (under the heading "Breach of Contract" at [1]).
T 266.28-.33.
Geoffrey W Hill & Assocs (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012 at 76,768 per Kirby P. See also Dal Pont, Law of Agency (LexisNexis, 3rd ed, 2013) at 234 at [11.25].
Further Amended Statement of Claim at [3D].
(1988) 164 CLR 539 at 573.
Plaintiff's Written Submissions at 38.
Plaintiff's Written Submissions at 39.
Plaintiff's Written Submissions at 40-41.
Plaintiff's Written Submissions at 41.
Plaintiff's Written Submissions at 42.
T 224.01.-11.
T 266.50-267.02.
T 45.26-.44.
T 45.50-46.01.
T 46.08-.16.
T 46.20-.24.
T 47.04-.19.
T 49.27-.48.10.
T 50.18-.23.
T 50.33-53.31.
T 133.36-.49.
T 46.30-.33.
T 134.1-.06.
T 133.3-.09.
T 134.28-.31
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 1-27.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 2.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 3.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 4.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 5.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 6.
Exhibit 12, Report of Dr Roger Rowe.
Exhibit 12, Report of Dr Roger Rowe at 5.
Exhibit 12, Report of Dr Roger Rowe at 6.
Exhibit 12, Report of Dr Roger Rowe at 7.
T 46.20-.24.
T 46.20-.47.
T 47.09-.13.
T 47.24-49.15.
T 49.17-.25.
T 151.35-.39.
T 151.01-.09.
Exhibit D, Report of Dr Nicole Burston, Tab 4 at 38-46.
Hereinafter referred to as "PTSD".
Exhibit D, Report of Dr Thomas Oldtree Clark dated 24 April 2019, Tab 2 at 28-35.
Exhibit D, Report of Dr Thomas Oldtree Clark dated 25 July 2019, Tab 3 at 36-37.
Exhibit 13, Report of Dr John Roberts dated 14 June 2019.
Exhibit 13, Report of Dr John Reports dated 14 June 2019 at 13.
Exhibit 13, Report of Dr Roberts dated 14 June 2019 at 14.
Exhibit 13, Report of Dr Roberts dated 14 June 2019 at 16.
T 231.03-06.
T 232.01-14.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 5.
Exhibit D, Report of Dr WGD Patrick, Tab 1 at 6.
Exhibit D, Report of Dr Thomas Oldtree Clark dated 25 July 2019, Tab 3 at 33.
Exhibit 12, Report of Dr Roger Rowe at 6.
T 50.25-.28.
Plaintiff's Amended Schedule of Damages dated 13 November 2019.
T 51.40-52.32.
T 52.47.
T 53.01-.04.
T 50.37-.39.
T 60.26-.29.
T 53.14-.17.
T 53.19-.20.
T 53.22-.23.
T 53.25-.31.
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).
T 54.41-.46 and T 130.47-131.01.
T 55.04-08.
T 55.10-.19 and T 131.03-.09.
Exhibit 10.
Exhibit 10.
Exhibit E, Email from Catherine McGill dated 26 October 2015.
T 131.11-.18.
Exhibit E, Email from Catherine McGill dated 2 November 2015.
T 130.47-.131.01.
T 132.01-.09.
T 132.11-.16.
T 132.26.-28.
T 132.45-.47.
T 132.49-133.01.
T 133.05-.09.
T 133.36-.49.
Exhibit D, Tab 20 at 122; Exhibit D, Tab 21 at 123..
T 134.08-.17.
T 134.18-.26.
T 134.28-.31.
Exhibit 14, Report of Ms Priscilla Leighton-Clark.
Exhibit A; T 37.10-.41; T 68.38-.40.
Exhibit 14, Report of Ms Priscilla Leighton-Clark at 4.
Exhibit 14, Report of Ms Priscilla Leighton-Clark at 4-5.
Exhibit D, Tabs 16-20.
T 54.47-55.02.
Exhibit D, Tabs 16-20; T 192.07-.10; T 229.39-.50.
T 229.10-.230.10.
First Defendants Submissions on Damages at [10].
T 230.10.
Derived from ABS statistics for female workers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2020

Nihill v Vivien's Model and Theatrical Management; Lehanneur

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