Dazzy Donuts in Canberra advertised a promotion for any ACT resident with a birthday who had their celebrations impacted by Covid-19 restrictions. Anyone with a birthday in between 13 March and 13 July could attend the Civic caf of Dazzy Donuts on 24 June 2020, and show proof of birthday to receive 1 dozen free original glazed donuts. The promotion, widely advertised on social media, specified that customers must follow social distancing and use the hand sanitiser provided.

On 24 June thousands of customers are lined up at Dazzy Donuts (100,000 Canberrans have birthdays in the date range). Social distancing is not adhered to in the line outside the shop and the one hand sanitiser pump at the front door runs out in the first half hour. Dazzy has two employees at the door checking proof of birth and ACT residency and only allowing people in the caf to collect donuts as somebody else leaves. There is a prominent notice at the front door saying that anyone not wearing a mask will be refused entry.

Rajiv and his friend Tom stand in line for 2 hours. They eventually get to the front of the queue. Only Rajiv is allowed in to collect his donuts as only he is wearing a mask. Tom is annoyed because the advertising on social media said nothing about having to wear a mask. The health advice in the ACT at the time did not require or advise the wearing of masks.

Tom has now been diagnosed with Covid-19, along with others who attended Dazzy Donuts on 24 June. The health authorities have been able to identify Dazzy Donuts as the source of the latest ACT infection cluster. Tom is now in intensive care in Canberra Hospital. He is expected to recover but is very ill and will miss the start of second semester at university, and he is still annoyed that he didn't get any donuts!

Tara, Tom's sister, contacts you on his behalf. She wonders whether Tom might be able to take any legal action against Dazzy Donuts in relation to Tom's illness. Advise Tara, citing legal authority for your advice.