Question 1:

Caolin runs a pharmacy, Chill Pills Ltd, that provides prescription medicine, as well as an array of health products such as vitamins, protein powders, skin care products and first aid equipment. As part of a promotional campaign, Ethan is attending the store on behalf of the Spanish skin care company, O-Lay. Ethan is a contractor, but while in the store wears the pharmacy branded uniform. Caolin has required Ethan to be in-store between 9:00am and 11:00am (the busiest time of the day) and, given the rules around prescription medicines, has limited Ethan's movement to the front half of the store. Lily has a medical skin condition that requires regular medication. Lily makes a special trip out to Chill Pills (as it is colloquially known) to pick up her medication. As she enters the store, she sees some O-Lay skin treatments on display for $10. Because she has used these products in the past, she knows that this skin care product is worth at least $90. She goes up to the counter and speaks with Ethan, the promotion contractor, about the skin care products. "Will this skin care cream help with dry skin?" she asks. "I'm pretty sure," says Ethan. "Do you have any medical conditions that could cause a problem?" Lily responds that: "Well, I am here for some medicine for a skin condition. But I don't think that's a problem." "Can you hang on for sec?" asks Ethan. "I just want to check with Caolin, the pharmacist." Just as Ethan is about to go up to the pharmacist a new customer, Ryan, enters the store. He grabs the skin care on display and brusquely pushes in front of Lily. "I'll take the O-Lay - here's my $10" he states. Ethan, obviously annoyed at his behaviour, says "Oh, that's a mistake. I've been meaning to change that sign for some time. Caolin made a mistake when he made that sign - it's meant to be $100 - I can't sell it to you at that price." Ryan starts arguing for the next five minutes before leaving - without the skin care and very annoyed. Ethan apologises to Lily and begins to ring up the skin care at $100. Unfortunately, the argument with Ryan distracted him and he forgets to check the condition with Caolin. "Here you go," he says. "Hope you enjoy the silky-smooth skin the O-Lay will give you!" Lily goes home and follows all the instructions on the product box. On the first application of the product, she breaks out in a bad rash - there is an interaction with her medication that no one could predict. Speaking with Caolin would not have helped. Lily requires a series of visits to the GP and specialist skin doctor to resolve the condition. She misses 4 weeks work as a promotional model due to the unsightly rash. To do this, your memo should apply the ILAC method, where possible, and it should cover: ? all the steps required to show if Ethan is negligent (15 marks); and ? why or why not Caolin would be liable for her acts or omissions (5 marks). Focus your answer on the steps required to show someone is negligent. You can ignore consumer law. You do NOT need to cover defences. Be clear on the plaintiff and defendant and the particular incident you are analysing in the action as well.

- What to provide: To show negligence provide ILAC for each point provided (Duty, Breach and Causation). Altogether there should be 3 ILAC's provided

- The screen shots provided show an example of a similar question. Use the same format/structure and the same type of understanding with the answers. The red writing is the answers to question 6

"""i'.'"'i'i'is a personal trainer who works at Buff & To Jim (Jessie's boss) believes in the motto "Go hard or go home" and provides all staff with polo shirts with this motto mm on the back along with the Buffet: Tuff logo on the front and the staff member's Gym nickname. Jessie's nickname is W Jane is new to exercise and her doctor has recommended she see a personal trainer to improve her health. One day she sees a flyer for Jessie's services. The yer says that Jessie can \"Whip you into shape in 2 weeks and [personally guarantee you will be healthier and more energetic from day one. Jane decides to give Jessie a try and books a time. On the way to the personal training gym, Bo' Toff she decides to buy an energy drink for the workout. There is a vending machine on the tatmg and she feeds in a $5 note for the $4 drink. The machine takes her money and does not dispense a drink. Upset at having no drink, Jane nally arrives at Bu' & Toff. As part of the introduction, Jessie has Jane sign a document that outlines the costs of services and commits Jane to 4 weeks of personal training. The document also requires Jane to confirm she has had a medical examination and is t to exercise, as some forms of exercise can trigger heart problems. The document also states that exercise can cause soreness and in rare instances, injury. Jane signs the document. Jessie has Jane begin by performing an advanced technique, a kettle bell weight swing. Unfortunately, Jessie is not paying full attention to Jane - he is distracted when he catches a glimpse of himself in the mirror and commences "exing\". Jane, tiring badly and unused to exertion, forgets correct technique and swings the kettle ball weight in a wild, gyrating arc, losing her grip in the process. The weight ies upward, catching her under the chin and knocks her out. While in hospital, Jane is X-rayed and discovers she has dis-locatable shoulders, something she did not know and would not have been uncovered in a normal health assessment. It was this condition that allowed for the wild kettle bell swing, which would have occurred irrespective of Jessie's supervision. Jane requires surgery for a broken jaw which costs $13,000 and misses 6 weeks of work losing $9,000 in wages. She does not feel healthier or more energetic. Question 6 Jim is concerned about being liable for Jane's accident and has asked you to write a memo advising whether Jim is liable for Jessie's actions, should Jessie be negligent in relation to training Jane. Your memo must apply the [LAC method, where possible. Focus your answer on the steps required to show someone is negligent and vicariously liable. You do NOT need to cover defences. Be clear on the plaintiff and defendant and the particular incident you are analysing in the action as well. Negligence (15 marks) Vicarious liability (5 marks) Re. Jim, Owna' Buff and Tuff Nam Shaw 8 Nov-her 2020 Injury to Jane by Jessie Part A: Negligence - To determine if Jessie is negligent, one must understand 0 Has Jessie owed a duty of care; 0 Did he breach that duty of care; and 0 Whether that breach caused harm. Issue (1): Did Jessie owe Jane aduty ofcare Law (1): ('0 Reasonable foreseeability that someone in the defendant's position could harmm Donoghue v St_eghenson . Also (ii) Salient features of case consistent with duty being owedparticularly the control defendant has over the situation and the relative vulnerability of the plaintiff (Pere v Apand). Application (1): In this case, it is reasonably foreseeable that a careless trainer could cause harm to a new client. It is also clear that salient features of the case are consistent with owing duty because Jessie had no control by developing the program and supervising Jane, while jane was venerable particularly as she was new and had no prior experience. Conclusion (1): Jessie owed Jane a duty ofcare Issue (2): The second issue is whether breached that duty of care Law (2): section 9 of the civil liability act (CLA) which requires that (i) the risk is foreseeable; (ii) the risk is not signicant; and (ii) that a reasonable person would have taken precautions. To determine this, you look at ('0 probability of the harm (ii) likely seriousness of harm; (iii) burden of taking precautions; and (iv) social utility Application (2): In this case, ('0 the risk of Jane being injured if Jessie is careless is not foreseeable because there are lots of ways to hurt yourself when you exercise. (ii) the risk of injury is not insignicant, because you can hurt yourself badly (e.g., tear muscles, break bones etc); (iii) A reasonable person in Jessie's position would have taken precautions because the probability was high, the seriousness was high but most importantly, the burden of taking precautions was low 7 Jessie just had to pay attention, which he really should have been doing. Conclusion (2): Jessie has breached his law of duty of care Issue (3): Did the breach cause harm? Law (3): Section 11 civil liability act which requires (1) factual causation and (ii) harmtobe in the scope ofliability Application (3): In this case, we can see that the 'but for' test for factual causation does not hold. \"But for J essie's carelessness, Jane would not have suffered harm\" That statement is not true 7 her dislocated shoulders would have meant the harm occinred without Jessie's carelessness. So, there is no factual causation, hitting yourself with weights and the consequent injury would be thin the scope ofliability. Conclusion (3): In answer to the rst question, Jessie is not negligent because there is a lack of causation Part B: Vicarious Lahility (To determine IfBu' and Tull'woulrl have been llable) Issue: Employers are vicariously liable for acts of employees, and this is determined via the control test, irrespective of what labels are used (e.g., use of contactor tuminology) Law: Employers are vicariously liable for the acts of employees, which is determined by the level of control (Hollis v yam) Application: In this case, Buff and Tuff makes Jessie wear a uniform and sets his hours of work, which are all consistent with the control of an employer of the employee. So, onbalauce, I wouldthink they are employers of Jessie. I could also reasonable assume they have policies on how Jessie is to work and conduct himself, which would show even more control. Conclusion: Bull and Tu' are vicariously liable for Jessie's acts and omissions Part All! Overall Conclusion: While Buff and Tilt? are liable for Jessie's acts and omissions, in this case, Jessie is not liable for the negligence due to a lack of causation