Dharma is a movie projectionist at Heroes Cinema in Liverpool, NSW. She is a part time university student. Dharma works 20 hours a week on a casual roster which is done a month in advance by the movie theatre manager. She can request particular days not be rostered if she gives the manager 2 weeks' notice. Dharma is required to wear a Heroes Cinema branded t-shirt and her own jeans to work and has to wear her photo ID swipe card on a Heroes Cinema lanyard around her neck to access the projection rooms in the movie theatre. Dharma is paid on an hourly casual basis at the award rate.Heroes Cinema takes tax out of her wages every fortnight before she is paid. When she started working as a trainee projectionist in Year 12, three years ago, she was given two days' training on how to operate the projector and some basic safety training for the safety of staff and customers.

Dharma's responsibilities include checking the warnings on each movie reel before it is played through the projector. These warnings can be about the rating of the movie and any 'shorts' or advertisements on the movie reel, as well as health warnings including 'strobe effects' which can trigger epilepsy attacks in people who suffer from some forms of epilepsy.Dharma has been trained to go through a checklist before putting the reel into the projector to play it for the customers at the start of the movie session. This checklist is part of the Heroes Cinema corporation's standard operating procedures for all projectionists in all of its cinema facilities in Australia. Dharma's induction training when she was hired by Heroes Cinema Liverpool included training in safety procedures for checking the movie reels for health warnings.When a health warning is displayed on the movie reel, the safety procedure is that the projectionist is supposed to play a 60 second warning clip about the health risks of that movie, at the start of the session then again before the start of the movie.

Dharma's first job of this shift is to play the new 'Amazing Avengers' action movie in the 6:00pm evening session. She checks that the movie rating (PG) matches the shorts/advertisement ratings and sees that they all match. She does not notice that the movie reel has a warning label 'strobe effects - epilepsy warning'. Dharma puts the reel in and starts the projection of the shorts, advertisements and movie. Fifteen minutes into the movie there is an action scene which features two minutes of strobe effects. Dharma is studying from a university textbook and does not notice the screen flickering, which might have alerted her to the strobe effects.

Winnie has a form of the medical condition, epilepsy, called 'photosensitive epilepsy' which means that strobe effects in movies and lighting can trigger epileptic seizures.Winnie's specialist has warned her to try and avoid visual stimulation triggers for seizure episodes. Her specialist has advised her to check online whether a particular movie has a warning for strobe effects before deciding to see that movie, so she can avoid potentially triggering light effects. Winnie's epilepsy is fairly well controlled as long as she avoids triggers and remembers to take her anti-seizure medication prescribed by her specialist.

Winnie visits Heroes Cinema Liverpool with a group of her friends to see the 6:00pm screening of 'Amazing Avengers'. She does not check beforehand to see if the movie has strobe effects because she is in a hurry to leave on time for the movie. Unfortunately she also had food poisoning three days before and because of vomiting, and later having an upset stomach, did not take her anti-seizure medication for three days. Fifteen minutes into the movie the strobe effects start. Winnie has a seizure episode, and falls off her seat, striking her head on the armrest as she falls and fracturing her skull. On the ground her seizure continues and before her friends are able to assist her, her face strikes the base of the movie theatre seats, breaking her nose.

An ambulance is called and Winnie is taken to hospital to treat her injuries. In the hospital Dr Mikhaela treats Winnie for her injuries.When she takes Winnie's patient history, she notes that Winnie has photosensitive epilepsy and that flickering lights and strobe effects can trigger seizures. The hospital room Winnie is staying in has fluorescent lights, and the light opposite Winnie's bed has a faulty fluorescent tube. It is flickering. Dr Mikhaela says to the nursing staff that Winnie should probably be moved to another room or the light should be fixed. The staff are very busy and Winnie is not moved and the light is not fixed. The same day, the flickering light triggers another seizure episode and Winnie falls out of bed, suffering a brain injury from the fall as she already has a fractured skull.

Winnie is on sick leave from work for twelve months. Before the accident Winnie, aged 26, was a primary school teacher earning $80,000 per year. Winnie had been in this job for three years and was doing well. She had just finished her Masters' degree in education, specialising in education management, which she completed by distance education whilst working full time. Winnie wanted to eventully be a primary school principal. The principal at the school where Winnie is employed thinks Winnie would be an excellent principal and has the qualities of a good leader and manager.

Winnie now has a permanent brain injury and is only able to work two days a week, three hours per day in two 1.5 hour blocks of time, as a teachers' aide in the classroom, helping children with reading difficulties. She earns $15,000 per year as a part time teacher's aide. Her injury means she is no longer able to manage full time work, and no longer able to manage running a classroom. Her concentration is affected and she is not able to focus for longer than 1.5 hours of work at a time, and is exhausted after 3 hours of work. Winnie used to enjoy visiting the gym before work and taking exercise classes, but now finds that she lacks the physical coordination to Do this because of her brain injury. Winnie misses her career and is greatly saddened that she will now never be a full time teacher again and will not fulfil her career aspiration to be a school principal. She also really misses her exercise classes and feels too embarrassed to try and attend due to her lack of physical coordination after the injury. Winnie also finds it very distressing and sad that some of her colleagues at the primary school and some of her friends are now afraid to talk to her because they don't seem to know how to deal with the fact of her injuries.

Winnie was in a relationship with her girlfriend, Bethany, before the accident and they were living together. After the accident the stress of sick leave, therapy and recovery is too much and the relationship breaks down. Winnie is grieved for months at the loss of her relationship because before the accident she and Bethany had been talking about getting married and having children one day. Winnie has an income protection insurance policy which covers her for 80% of her full time wage for five years following the accident.

Answer both of the following questions. In your answers, make reference to relevant authority including cases and legislation.

1. Is Heroes Cinema Liverpool liable in negligence to Winnie in respect of the harm she has suffered?Answer the question using the following headings:

Vicarious Liability

Duty of Care

Breach of Duty

Damage

Causation

Defences