Kate walks her five-year old daughter, Prachi, to her school every morning.
Kate walks her five-year old daughter, Prachi, to her school every morning. During a rainy morning in October 2022, when Kate was walking back home after dropping Prachi to her school, she was hit by a truck driven by Ramsay. Ramsay lost control of the truck because he did not slow down at a sharp turn and in slippery road conditions.
Kate got seriously injured in the accident, suffering multiple fractures and internal abdomen bleeding. Since Kate was unconscious, a passer-by called an ambulance to take Kate to the hospital. Before the ambulance arrived on the scene, Rita, who was riding a bike to her office, spotted a Rolex watch on Kate’s wrist. Rita pretended that she was trying to help Kate but removed the watch secretly and went away. Unfortunately, it was not possible to trace Rita.
Harris is a doctor working in the emergency department of Total Hospital. Harris works five days a week as per the roster prepared by the Hospital. He is required to wear the Total Hospital’s uniform while on duty. Total Hospital pays Harris hourly with AUD1,000 bonus payment for every surgery performed.
Harris is a diehard cricket fan. He was watching on TV a match of the T20 Cricket World Cup when the ambulance brought Kate to the Hospital. Harris attended to Kate and made an assessment that immediate abdomen surgery was required. However, as Harris did not want to miss the batting of his favourite batsman, he decided to perform the surgery while watching the match. By mistake, Harris left a pair of small scissors inside Kate’s abdomen during the surgery. This was discovered four weeks later as Kate started having severe abdominal pain and her personal physician suggested an abdominal MRI (Magnetic Resonance Imaging).
Since Kate’s pain became quite intense and no date for surgery to remove the pair of scissors from her abdomen was available, she had to take painkillers. These painkillers triggered an allergic reaction with rashes all over her body. Moreover, as this additional surgical procedure was not covered by her health insurance, Kate had to spend a significant amount of money from her pocket.
Advise Kate on the possible actions available to her in negligence against Ramsay and Harris. Also discuss the vicarious liability of Total Hospital for the negligence of Harris. Your advice should consider both common law and the relevant provisions of the Civil Liability Act 2002 (NSW). No need to discuss any defences.
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