Advice on Evidence Problem Autumn 2023(2)
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School
Western Sydney University *
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Course
200641.2
Subject
Law
Date
Jun 8, 2024
Type
docx
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4
Uploaded by DeaconFreedom7616
LAWS4014/LAWS7068 Remedies
Autumn 2023
Professional Task – Advice on Evidence
Notes
1. Before you begin this assessment, please read the Exemplar and
Comments, as well as the
submission requirements and standards/criteria
,
to
be found in the
Learning Guide
.
2. In providing your advice you are not expected
to refer to consumer law, simply
concentrate on discussing the relevant principles
of negligence. You do not need to
repeat the facts of the problem.
3. Use cases, text books and articles
to write your advice and remember to use
AGLC 4 for your footnotes. Primary sources are better than secondary and do not
quote lecturer materials or other non-peer reviewed sources such as legal blogs. 4. Remember for question 1 to include an assessment of causation and reasonable
foreseeability. 5. Please also note that this is a fictional incident and any resemblance to persons
living or deceased, or any APP or service is purely coincidental. RE: Ms Adele Carver
Dear Colleague,
I am writing to you for a preliminary opinion on a brief that you may be interested in if
the matter goes to court. For now, I just need a preliminary advice on your standard
consulting contract with our firm. Our client Ms Carver had an episode, where on the 12
th
November 2022 at around
7pm, she experienced pain in her jaw, sweating, light-headedness, dizziness and
chest tightness. She called the community after hours doctor, but the number went to
an answering service which told her to download a HealthAid app. She downloaded
the app, and the app asked her symptoms. She put the above into the text box and a
message appeared of which she took a screen shot:
Ms Carver was relieved it was nothing that couldn’t wait till morning and went to bed.
5 hours later her husband noticed her clammy skin, and alarmed, rushed her to the hospital where she was diagnosed with a myocardial infarction, or a heart attack. Because she waited so long the damage to her heart was severe and while she did undergo open heart surgery, she was also placed on a transplant list. The Dr said if she had come in even an hour earlier the damage wouldn’t have been so severe, and she wouldn’t have needed the transplant. The Dr also told Ms Carver, and is willing to say in writing, that those symptoms would automatically signal an emergency issue to any trained medical professional and the App should have come
with a warning. 6 months later she gets the transplant but the surgeon performing the operation accidently damaged part of her lung. The risks of the transplant surgery, including lung damage were explained to her and Ms Carver did sign a waiver acknowledging this. She is now disabled.
Due to this Ms Carver now requires someone at home to help her as she has trouble
walking. She also suffers from depression which is a known complication after being in the ICU for an extended stay. Ms Carver was a conveyancer but can no longer work. Her sick leave is about to run out and then she will be putting in her resignation. She also requires oxygen at home
which is expensive and not covered by her private health insurance. She also has had to hire babysitters to drive her kids to school and back and do her grocery shopping as she is too weak to do so. The terms and conditions of the HealthAid app were clicked as accepted by Ms Carver. Those terms and conditions are attached.
Ms Carver would like to know:
1.
Whether she could sue the HealthAid app owners for negligence?
2.
What damages she can claim, if any, and
3.
Whether she can claim for her psychological injuries
?
Could counsel also advise as to what further evidence our client needs to produce.
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Terms and Conditions of Health Aid App:
T
ERMS
AND
CONDITIONS
1.
By accessing, using, or registering with the HealthAid App (the “App”) you agree that you have read and understood and agree to be bound by these terms and conditions.
2.
You cannot contact emergency services through the App. In the event of an emergency please dial 000. 3.
The HealthAid App should be used in conjunction with your local medical practitioner. You should talk to your medical practitioner before starting or stopping any medication or treatment plan. 4.
You agree that your use of the App will not intentionally infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties. 5.
You may use the App only for lawful purposes and in accordance with these Terms. 6.
We may update the content on this App from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the App may be
out of date at any given time, and we are under no obligation to update such material.
7.
You agree that we may collect, use, and share your personal information in connection with providing you the App and related services. By using the App or any of the services, you consent to us collecting and using technical information about the devices and related software, hardware and peripherals for services that are internet-based or wireless to improve our products and to
provide any services to you.
These Terms of Use constitute the sole and entire agreement between you and us
regarding the App. Press