Priscilla is a successful young social media influencer of the popular food tourism travel TikTok channel "EatingInTheStreets", where she travels and eat in restaurants not known to tourists. She regularly attracts 100,000 viewers in her livestreams, and her activities are sponsored by various food and travel businesses.

During one of her livestreams, she visits "Voracioux" - a popular Filipino restaurant in Melbourne. Priscilla asks the chef employed by Voracioux, Angela (who is a big fan of Priscilla), to surprise her and the viewers with the "meal to blow the minds of the viewers!". Angela responds that she will serve Priscilla their most popular dish called "pancit" - which is stir fried wheat noodles accompanied with assorted meat and vegetables.

Priscilla requests Angela to cook the pancit without any peanut ingredients because she suffers from peanut allergy that could be fatal. Angela, too excited to be serving food to her idol, forgets Priscilla's request and cooks the "pancit" using utensils that were previously used to make "kare-kare" - a beef stew made withpeanut sauce.

Priscilla eats the pancit while livestreaming. A few minutes later, she complains of feeling dizzy and her lips tingling, followed by her viewers stating (in the chat room) that her face is starting to swell. Suddenly, she feels tightness around her throat and complains of having difficulty in breathing followed by her losing consciousness. Angela called the ambulance and Priscilla was soon sent to the hospital. All these transpired during the livestream watched by over a million viewers.

As a result of the allergic reaction, Priscilla spends three months in hospital to recover. Priscilla lost over $100,000 in sponsorships and subscriptions, as she was not able to livestream while recovering. The quality of her lifestyle and aspirations have also diminished. She now also suffers from severe emotional stress requiring medical treatment because a recording of the incident was widely shared over social media and has resulted in ridicule and mockery by online bullies or trolls. She is in therapy with Dr Smith, at $100 per session, twice a week. She is also planning to travel to France to spend some time recovering.

Priscilla's mother, Janet, suffers shock, anxiety, and depression (all recognised psychological disorders) after hearing of the unfortunate episode and seeing her daughter in hospital.

ISSUE:Has Voracioux satisfied the expected standard of care in performing the service?

RULES:

To determine whether the standard of care has been satisfied, the question that needs to be asked is: "what would a reasonable person, in the position of the defendant, do to minimise the risk?" This question determines whether the defendant has taken reasonable care in performing their duties.

Application:

Address what is the expected standard of care in this case? Remember: What would "a reasonable person" in the position of the defendant do to minimise the risk?

Did VBS satisfy or breach the expected standard of care you described above? Why? Why not?

CONCLUSION:

Has VBS satisfied the expected standard of care in performing the service?

ISSUE:Has Voracioux breached the duty of care after considering the costs, consequences, and risks?

RULES:

To determine if the duty of care has been breached, it is important to balance the risks, costs and consequences against the circumstances. The test used to balance these is called the weighting test from s 48 of the Wrongs act. This test requires application of 4 elements.

Application:

Apply the elements of the _____________ test. Don't forget the case law for each element - see the lecture slides!

What is the likelihood of the injury occurring if Angela was careless in performing the service? [Consider that Priscilla informed Angela about her allergies)

How serious could the injuries or losses suffered if Angela failed to perform her duties properly?? (Make sure to write in detail what injuries or losses Priscilla suffered)

Would it have been difficult or costly for VORACIOUX to prevent the injury from occurring?

Is there social utility to the risk?

Based on your application of the 4 elements - did VBS breach their duty of care?

CONCLUSION:

Has VBS breached the duty of care after considering the costs, consequences, and risks?

ISSUE:Has Priscilla suffered damages because of the negligent act and are the injuries suffered foreseeable?

RULES:

The courts calculate the amount of damages (financial compensation) by considering the position of the plaintiff would have been if negligence had not occurred. To sue for damages, the plaintiff must prove 2 elements that are sourced from these two cases:

Causation: Chapel v Hart

Reasonable foreseeability: Wagon Mound # 2

Application:

Causation

What (list the) injuries did Priscilla suffer?

Did Voracioux cause the injuries? - make sure to apply the But For test!

Reasonable foreseeability

Considering the injuries listed, would a reasonable person conclude all the injuries reasonably foreseeable, or are some too remote?

Based on your application, has the plaintiff suffered damages because of the negligent act and are all the injuries suffered foreseeable?

CONCLUSION:

Has the plaintiff suffered damages because of the negligent act and are the injuries suffered foreseeable?

Can Priscilla seek damages for all the injuries/losses she suffered because of the negligent act?

ISSUE:Issue: Does Voracioux owe Janet a duty of care for mental injury?

RULE:For indirect psychological trauma, s 73 of the Wrongs act will be used to determine duty of care owed. To determine duty of care under s 73, the mental trauma must be reasonably foreseeable and either:

The person witnessed the accident; or

The person is a close relative of the directly injured party

Application:

What type of injury did the Janet sustain?

Identify the relevant section to prove duty of care based on the injuries Janet sustained?

Apply the RELEVANT elements of the test to prove duty of care.

Identify if there is a case law that is similar to what happed to Janet - and explain how it is similar.

CONCLUSION:

Does the VBS owe Janet a duty of care for mental injury?