For the last four years, Kumar has been the maintenance person at the Cains Arena, a tennis oval with several tennis courts in Melbourne's Northern Suburbs. Kumar has a degree in grounds construction and keeping from the prestigious Homabay Polytechnic, a tertiary institute concerned with grounds construction and keeping in the United Kingdom, and was formerly on the executive council of the Australian Society of Grounds Builders and Keepers. The method Kumar uses to maintain the Cains Arena results in the surface of the court being particularly slippery especially when it rains as Kumar puts hard surface. As a consequence, the court requires less upkeep on a week-to-week basis than softer carpet or grass courts, and

is therefore cheaper to maintain than those courts. The method employed by Kumar to maintain the court does not have much support amongst other grounds keepers in Australia but is widely accepted amongst grounds keepers in the United Kingdom as the preferred method of preparing tennis grounds. It is well known that over the last two years a substantial number of players have suffered injuries while playing at

the Cains Arena, with such injuries being attributed to the hardness and slippery nature of the ground.

Molly is a junior tennis player. Molly hopes to be selected to play in the Australian Open in

Melbourne next January 2025. Molly's last game of the season before the selections is played at one of Cains open courts. It had rained for a couple of hours in the night, but Kumar had not substantially dried the court. During the game, Molly attempts to answer a particularly difficult service ball, but just as she was reaching out to answer the ball, she slips and falls so hard that she injures her ankle and requires a 30 minutes medical break. The hardness and wetness of

the ground result in more substantial injury than if the court had been made of carpet or grass. During the medical break, Molly complains about the hard and wet surface. However, she also ignores her physiotherapist's advice, who checks her during the break, to wear support bandages around her ankles, arguing that they make her legs look too fat. After resuming the

game, Molly is seen struggling with pain but she keeps playing, until, while attempting to save a line ball, she again slips and falls so hard this time that she shatters her knee cap. Molly is taken from the ground on a stretcher. Molly was taken by ambulance to St Telefania Hospital for surgery. The surgery required her to undergo a general anaesthetic. However, the anaesthetist, Karimba, momentarily distracted by seeing her favourite junior tennis player on the operating table, slightly misjudges the

amount of anaesthetic that she gives to Molly. Normally, the extra amount of anaesthetic would simply cause a patient some mild nausea when she awoke after the operation. However, Molly

is allergic to the anaesthetic being used. As a consequence of the extra dosage, Molly has a very bad allergic reaction which causes substantial damage to her heart.

Due to Molly's fall, she will be unable to play tennis for at least another 12 months and she will certainly not be selected to play in the Australian Open or in any other tournament soon. Molly is told by her doctor that her ankle and knee will never heal properly and that 'things might not have been so bad for the ankle' if she'd worn the support bandages.Disappointed by Molly's situation, her husband, Jeff, divorces her in search of a new rising talent.

Advise Molly as to her legal rights in negligence against Kumar.

In your answer try to cover all elements of the tort of negligence and any potential

defences.

Marking Criteria for Question One

1. Clear explanation of the term and its special characteristics.

2. Inclusion of clear examples

3. Use of relevant case law

4. Discussion of the implication if the term was not implied in the contract

5. Clarity of expression

6. References where necessary