Ishan Kotapalli is a young Australian actor. For the last few years, he has featured in a popular nightly soap opera on television. However, Ishan is ambitious, and is keen to start acting in feature films, especially in the United States. Therefore, he was delighted when, in mid-2021, he was offered the leading role in "Evil Rising", an action movie to be shot early the following year in and around Melbourne. "Evil Rising" is to be financed, produced, directed, and filmed by Sarah Chen, a Melbourne filmmaker. Sarah holds a degree in "action film making" from a prestigious United States University. Several of the units Sarah undertook as part of her degree dealt with stunt work in action films, and a significant focus of each of those units was on the importance of, and giving practical effect to, safety precautions in action films. Indeed, Sarah boasts that, due to her studies, she is an expert in ensuring that the stunts undertaken in any film set that she oversees will be extremely safe.

Because the film's budget will be very low, Ishan will not be paid for his participation, with the result that he is not Sarah's employee. Nonetheless, Ishan believes that the film will be a showcase for his talents, and so will help him obtain an agent in Hollywood. Ishan secured the lead role in "Evil Rising" partly because his girlfriend, Bethany Chen, is Sarah's sister.

The shooting of the film started in February 2022. For the first while, filming was uneventful. However, all of that changed on Thursday 24 February. On that day, one of the movie's main action scenes was to be filmed. Filming was to occur on publicly owned land in Northern Victoria. In the scene, the character played by Ishan had to pass, hand over hand, along a rope that was secured, at a height of 10 metres, between two trees spaced 50 metres apart, and directly above a cage of savage tigers. For the purposes of filming the scene, real tigers, which Sarah had borrowed from a local wildlife park, were to be used. However, in making the film, fidelity to reality went only so far. The plan was for Ishan only to look as though he was hanging from the rope solely by his hands; he would actually be attached to the rope by a discreet, but extremely secure, harness.

Just before the scene was to be shot, Sarah stood behind Ishan, guiding his arms through the relevant straps on the harness. However, before Sarah had finished securing the harness, by fastening the relevant clips behind Ishan's back, a member of the film crew in charge of lighting called out to Sarah, asking that she come over to another part of the set, to confirm that she was happy with the way some lights would illuminate the scene. Sarah ran over to the lighting expert, intending to return to Ishan after just a moment, to finish fastening the harness. However, Sarah was not at all happy with the way the lights were pointing, and soon became preoccupied with making sure that they pointed the right way. She forgot to return to finish securing the harness.

Ishan wondered whether the harness was properly fastened. Certainly, when he had been given instruction in the use of the harness previously, fastening it had taken somewhat longer that it had seemed to have taken on this occasion. However, a few minutes later, Sarah called "Action!", indicating that filming on the important scene was to begin. Ishan did not want to cause difficulties for the shoot and, telling himself that Sarah had surely properly fastened the harness, swung out over the cage. The tigers immediately noticed Ishan and began leaping at him from below, snarling and growling.

Ishan was about halfway across the rope when he looked down and noticed that the straps holding him into the harness had come undone, as could only occur if it had not been properly fastened to begin with. Ishan was immediately terrified - if his arms, that were already very tired, gave out, he would fall into the pit and be eaten! He screamed out for help but Sarah and the rest of the film crew, as well as the many people who had heard about the shooting of the scene, and had come up from Melbourne to watch it, did not realise what was going on - they merely thought that Ishan was getting into character and doing some excellent acting. However, Bethany, who was also on the film set, understood exactly what was occurring and, like Ishan, was terrified.

At that instant, a magpie, that was nesting in a nearby tree, and which was very disturbed by Ishan's screaming, flew towards his face. Reflexively, Ishan let go of the rope with one hand to guard his eyes against the magpie's attack. Unfortunately, Ishan could not maintain his grip on the rope with only one hand, and dropped into the cage below. He was immediately set upon by the tigers. Sarah and the members of the film crew were able to drag Ishan from the cage, but not before he suffered severe gashes and lacerations on his arms, legs and torso. Blood poured from his wounds.

Frank, a by-stander watching the filming, who was trained in first aid, immediately took off his shirt, tore it into strips, and used the strips as tourniquets to staunch Ishan's bleeding. Unfortunately, Frank tied the tourniquets so tightly that he inadvertently fractured the bones in Ishan's left arm.

An ambulance was called, and Ishan was rushed to hospital. While he was in surgery, staphylococcal bacteria entered Ishan's bloodstream though the lacerations on his body. As a result, he suffered severe neurological damage.

Bethany, who had felt helpless while watching Ishan hanging precariously above the cage of tigers, and then being savaged by them, was traumatised. When, after several months, she was not feeling any better, she visited a psychiatrist, who diagnosed her as suffering from post-traumatic stress disorder.

Question 1 (36 marks):

Advise Ishan whether he has a viable cause of action in negligence against Sarah. In answering the question, you should deal with each of:

a) duty of care;

b) breach of duty;

c) causation; and

d) remoteness.

In answering this question, you shouldnot address the issue of damages (or remedies more generally).

Question 2 (10 marks):

Assuming that Ishan does have a viable prima facie cause of action against Sarah in negligence, advise Sarah whether she can avail herself of any defences and, if so, on what basis.

Question 3 (14 marks).

Advise Bethany whether Sarah owes her a duty of care. In answering this question, you should consider onlyduty of care andnot the other elements of the tort of negligence.