ARTICLE · 02 JUNE 2020

A model example: revisiting obvious risks in dangerous recreational activities

Colin Biggers & Paisley

Explore more from Colin Biggers & Paisley

These cases are positive news for defendants and insurers but each case will turn on its facts and detailed evidence.

AustraliaInsurance

Simone Rizzuto

In brief - Defendants found not liable in negligence in Nihill v Vivien's Model case

Section 5L of the Civil Liability Act 2002 (NSW) (CLA) has enjoyed some judicial attention in early 2020. We examine the recent decision of Nihill v Vivien's Model and Theatrical Management & Anor [2020] NSWDC 131, which highlights the courts' increasing willingness to accept defendants' section 5L defences.

During the hearing of this matter, the Court of Appeal delivered its decision in Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, and the District Court generously permitted the plaintiff to make further submissions in light of the Menz decision.

Combined, Nihill and Menz provide insurers, lawyers and institutional defendants alike with an updated guide on how the Court will approach defences under section 5L.

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Related Articles

A New Insurer Risk – Contractual Liability For Breach Of The General Insurance Code Of Practice

AustraliaInsurance

A $2 Million “sting”: First Civil Penalty For Breach Of The Duty Of Utmost Good Faith

AustraliaInsurance

Gilchrist Connell

One Claim. $2 Million Penalty. A Warning To Every Insurer.

AustraliaInsurance

When Is A Loss Not A Loss? Federal Court Examines Insurance Policy Exclusions

AustraliaInsurance

# 8 Trauma Insurance In Australia: Key Issues To Consider

AustraliaInsurance

Carroll & O'Dea

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

Comparative Guide

Insurance & Reinsurance

See more popular content from

Insurance

AFCA’S New Approach To General Insurance Claims Handling: GICOP Compliance May Not Be Enough

The Australian Financial Complaints Authority has published new guidance clarifying how insurers must handle claims, including strict timeframes and expanded compensation rules. Insurers now face potential liability beyond policy limits for unreasonable delays, and may be required to compensate claimants for non-financial losses. With storm season approaching and complaint volumes rising, these changes create significant operational and financial pressure on the insurance industry.

AustraliaInsurance

Gilchrist Connell

The Data Centre Boom: Growth, Opportunity And Emerging Risk For The Insurance Industry

Data centres have become critical infrastructure assets in Australia's digital economy, attracting significant investment while facing mounting regulatory scrutiny over energy demands and infrastructure costs. As these facilities expand to meet AI-driven computing needs, they present complex insurance challenges spanning climate exposure, business interruption risk, and cyber vulnerabilities that require careful risk management strategies.

AustraliaInsurance

Navigating CTE Claims: A Guide For Insurers - August 2026 Update

Since the guide was first published in March 2026, significant developments have emerged across the medical, sporting, regulatory and litigation landscape.

AustraliaInsurance

Podcast: Coffee With CGW – Get To Know Jess Byrne

Special counsel Jess Byrne reflects on her decade-long career progression at Cooper Grace Ward, from law clerk to her current role in the insurance team. She discusses her work in workers' compensation and CTP matters, highlighting the diverse client base and advocacy opportunities that define her practice.

AustraliaInsurance

Cooper Grace Ward

ASIC Puts Motor Vehicle Premium Transparency Under The Spotlight

ASIC's Report 838 reveals significant transparency gaps in motor vehicle insurance premium communications, finding that renewal documents often fail to explain price changes adequately and that over 30% of consumers who contacted their insurer successfully negotiated lower premiums. The report establishes clear expectations for better practice in pricing disclosures and signals continued regulatory scrutiny of insurance pricing practices.

AustraliaInsurance

Gilchrist Connell

A $2 Million “sting”: First Civil Penalty For Breach Of The Duty Of Utmost Good Faith

The Federal Court has imposed a $2 million civil penalty on Hollard Insurance Partners for breaching the duty of utmost good faith in its handling of a home insurance claim. This landmark decision marks the first time an insurer has faced civil penalties under section 13(2A) of the Insurance Contracts Act 1984, following sustained delays, inadequate expert engagement, and failures to properly assess storm damage that left policyholders in temporary accommodation for over three years.

AustraliaInsurance

Gilchrist Connell

What to do if your TPD or income protection claim has been rejected

It pays to understand the basis upon which your income protection or TPD claim was declined.

AustraliaInsurance

Hall Payne Lawyers

One Claim. $2 Million Penalty. A Warning To Every Insurer.

Australia's securities regulator has secured a landmark $2 million civil penalty against Hollard Insurance for breaching its duty of utmost good faith during a 17-month storm damage claim. The Federal Court found that repeated delays, inadequate expert assessment, and poor communication constituted a single contravention—even without deliberate misconduct. This precedent-setting decision signals that claims-handling failures on individual policies can now trigger seven-figure penalties, fundamentally

AustraliaInsurance

When Is A Loss Not A Loss? Federal Court Examines Insurance Policy Exclusions

The Federal Court of Australia has determined that ANZ was not entitled to insurance coverage for nearly $117 million in class action settlements and defense costs, examining whether these settlements qualified as insured Loss under excess insurance policies. This landmark decision provides critical guidance on policy interpretation, particularly regarding when repayments of premiums, commissions and charges may fall outside insurance coverage, and how exclusions for excessive or improper charges should be

AustraliaInsurance

From Sustainability To Supply Chains: Rethinking Data Centre Risk In APAC

Asia-Pacific data centre expansion is creating unprecedented insurance challenges as rapid infrastructure growth strains regional water and power resources. Could intensive resource consumption by data centres generate environmental liability claims from affected communities and regulators? And are traditional property insurance models adequately capturing the contingent business interruption risks created by concentrated digital infrastructure dependencies?

AustraliaInsurance