Question 1.

Justine Believer was a book keeper who decided to open her own small business. The

business has been operating successfully for the last year.

However, last month while working on a client's cash flow records, Justine experienced

severe pain in the thumb and forefinger on her right hand. Justine ignored the pain for

several days thinking it would just go away. By the end of the week when her hand became

severely swollen Justine finally went to the South Yarra Medical clinic near her home. She

saw three different doctors in two weeks who told her that there was nothing wrong with

her hand and to just go home and take some headache tablets. The night after her last

visit to the Clinic Justine collapsed at home and was rushed to hospital. Doctors at the

hospital explained to Justine that she needed urgent x-rays and scans as they suspected

she had a serious infection in her thumb and three fingers. The procedures confirmed the

infection and a surgeon was called in to amputate Justine's infected fingers and thumb.

The surgeon explained that her injuries would lead to permanent problems with her hand

and she may find it very difficult to continue her work as a bookkeeper. She also explained

that Justine would need a lot of time away from the office for rehabilitation. The surgeon

went on to tell her that had Justine been sent for x-rays and scans the first time she went

to the South Yarra Medical Clinic the infection would have been caught earlier and her

thumb and fingers could have been saved.

A. Advise whether Justine could sue the South Yarra Medical Clinic for

negligence. Use case references to support your answer.

B. Discuss the relevance of vicarious liability and any defences the clinic may

raise to avoid their liability or reduce possible compensation.