The Great Lake Shopping Mall is located in Horsham, Victoria. The Mall has been experiencing a decrease in customers over the past year and had to lay off a third of its employees. To address its decline in customers, the Mall put an advertisement in a newspaper for a marketer. Janet Whiz applied for the position and was hired by the Mall as their marketer. She discussed with the Mall what type of promotional activities they were interested in. The Mall stated that they wanted something flashy that would create community interest, but it also had to be family friendly.

Whiz thought the best way to meet these objectives was to have a fireworks display in the Mall's outdoor garden at 5:00 p.m. each day. Whiz ordered a bulk package of fireworks from Ace Fireworks and started the daily shows. To save money, Whiz was also responsible for lighting the fireworks. Whiz put up a sign in the Mall garden which stated that all persons should stay 3 meters away from the fireworks. The shows began, and soon crowds of over 300 people started attending the events.

Billy Local is a retired teacher and lives in a house four blocks from the Mall. After a couple weeks of the shows, a very unusual wind pattern started causing smoke from the fireworks to blow directly towards Local's house. Local told Whiz about this, and Whiz installed a series of powerful fans to blow the smoke in the opposite direction from Local's house. However, the strength of the unusual wind pattern suddenly increased and overpowered the fans, resulting in the smoke continuing to blow towards Local's house. This upset Local, and after three weeks he went to confront Whiz at one of the shows. While Whiz was about to light a large firework which was planted in the ground, Local stood beside Whiz and screamed into her ear that the smoke problem was worse than ever.

Whiz finished lighting the firework, and then started moving away quickly to avoid the screaming in her ear. At this point Whiz's foot hit the firework, and it fired at an awkward angle. The material which fired from the firework slammed into Local's forehead and knocked him out. July was standing nearby and was hit by Local when he was knocked out by the firework. July fell on the hard surface and broke her arm. Local suffered serious head injuries.

Whiz was shocked that the material fired from the firework had the force to knock out Local. She looked closely at the firework bag and noticed a small warning label which stated that these fireworks contained materials that were extra sturdy and could seriously injure a person if fired directly at someone.

After a few minutes of being terrified by the accidents, Whiz immediately called an ambulance to take Local and July to the hospital. The ambulance arrived as quickly as it was possible. Local suffered serious permanent brain damage as a result of the accidents. July got a bacterial infection on the wounds on her broken arm and had to go through intensive medical treatments for three months.

REQUIRED:

Please discuss all relevant legal issues regarding:

• Who owed whom a duty of care?
• Where the duty exists, please discuss whether there is a breach of that duty of care.
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