Scenario: After a number of years of working in an unsatisfying inner-city job, Mila was dreaming of the day that she could run her own small business from the comfort of her regional hometown. So, when she heard a press conference delivered by the Federal Minister for Tourism on 29 January 2022, it provided her with the motivation to start turning her dream into a reality. During this press conference the Minister announced a Regional Tourism Grant Program ('the Program'), pursuant to which government subsidies would be paid to businesses that focus on increasing tourism in regional and remote areas of Australia. Interested in the program, Mila turned up the volume of the TV just as the Minister explained that:

'From April 2022, the federal government promises to provide all businesses engaged in promoting regional tourism with a grant ranging in value from $1000 to $30,000, depending on the scale of events and activities each eligible business plans to carry out. Subsidies will be administered to eligible registered businesses via our OzTourism website'.

Mila was excited. She felt she had the perfect idea for the Program. She had spent much of her youth engaging in water sports in the local Tamara River and believed in the potential of the river to attract more tourists to the regional town of Tamara. Her plan was to establish a mobile business called Tamara River Safaris ('TRS'), which would: (i) provide inflatable kayaks and paddleboards for hire and (ii) operate kayak and paddleboard tours on the Tamara River. Eager to acquire the government subsidy as soon as it became available, Mila registered her business name and received an Australian Business Number (ABN) on 30 January, and by 1 February she had submitted the details of her business in the relevant section of the OzTourism website. The next step in Mila's business plan involved purchasing high quality inflatable kayaks and paddleboards for her customers to hire. After performing some preliminary research, Mila decided to visit a reputable fishing and boating store called Water Cruising Co ('WCC'), whose website states that each of their products is 'manufactured in Australia using all-Australian materials'. While walking Mila through their range, the WCC manager recommended that Mila purchase kayaks and paddleboards made from '1000 denier PVC' as this material is 'tough and impenetrable, creating a hard surface that safely glides through the water'. Impressed with their quality, portability and price, Mila placed an order for ten (10) '1000 denier PVC' kayaks and ten (10) '1000 denier PVC' paddleboards. To process this order, the WCC manager provided Mila with a written 'Sales Agreement' and explained a few of its salient terms. In particular, that:

1. a 30% deposit of $3000 needed to be paid immediately and

2. the balance of $7000 was payable upon delivery of the crafts, which was estimated to be between 9 March to 16 March 2022.

Satisfied with these terms, Mila skimmed over the five (5) page Sales Agreement and scribbled her signature on the dotted line.

For the next four weeks, Mila carried out both local and social media advertising for TRS and by 17 March, once the 20 crafts had been delivered and paid for, TRS commenced operations. Business was slow but steady at first, with mainly local residents hiring the kayaks and paddleboards for early morning and weekend exercise. Nevertheless, Mila was hopeful that business would improve once she received the government subsidy and word started to spread about the beauty of visiting and touring the Tamara River.

Two weeks later, however, Mila's hope began to fade. On 30 March 2022, Mila learns that a TRS customer, Leon, had been injured while using one of her kayaks. Evidence shows that the hull of the TRS kayak, being used by Leon, was pierced when it scraped against a submerged rock near the Tamara River rapids. As it began to fill with water, the kayak rolled to its side causing Leon to hit his head along a series of rocks near the bank of the rapids.

He was subsequently rushed to hospital in an ambulance and treated for traumatic brain injury. Following a series of brain scans, Leon's doctor explained that the severity of his injury was exacerbated by the fact that he wasn't wearing a helmet. While TRS provided helmets for hire, particularly for those customers who wished to adventure down the rapids section of the river, hiring a helmet wasn't compulsory. As such, the only protective equipment worn by Leon at the time of the accident was the life vest that accompanied the TRS kayak.

Absolutely devastated by the news of Leon's injury, Mila visits WCC to understand how the kayak could have been pierced so easily. When she is told by the WCC manager that her 20 crafts were made using '500 denier PVC combined with nylon', the following exchange takes place:

Mila: 'You assured me that the crafts were going to be made from 1000 denier PVC and that this type of material was "tough and impenetrable"'.

WCC Manager: 'Yes, that is true. But due to border closures and travel restrictions, we were unable to import this material from our usual overseas supplier. To get the crafts manufactured and delivered to you on time, we decided to substitute this with more readily available 500 denier PVC and nylon material.'

Mila: 'But this isn't what I asked for and now one of my customers has been badly injured! Besides, why would you need to rely on imported, overseas goods? Doesn't your website advertise that each craft is "manufactured in Australia, using all-Australian materials"!'

WCC Manger: 'I'm sorry Mila, but if you read our Sales Agreement more carefully you would see that it doesn't make any promises about the type of materials that would be used to fabricate your kayaks and paddleboards. Furthermore, clause 6.2 of the Sales Agreement states that "Nothing in this agreement shall render WCC liable for any injury, loss or damage caused by using our products."'

Mila is overwhelmed. She has spent the majority of her life savings setting up TRS and she is now worried about using the inferior, PVC/nylon crafts purchased from WCC for fear that another customer could also be injured. Further complicating Mila's position, is the fact that on 1 April 2022 the Federal Government announced that had it cancelled the Regional Tourism Grant Program. The government attributes this decision to the devastation caused by major floods across much of regional Australia. Mila is now deeply concerned about the financial viability of TRS.

Mila needs some assistance.

QUESTION: Whether she could have legal action brought against her by Leon in the tort of negligence, in relation to the injuries he sustained while using the TRS kayak. In this response, you should:

i) Apply all the essential elements of negligence; and

ii) Consider any possible defences to negligence relevant to the question. (10 marks)

(could you please answer this question I full, as to obtain full marks)