Joanne and Tony have been married for 15 years and to celebrate they decided to take a weekend break with their best friends, Kerry and Peter.
They went to Newcastle. On their arrival, they ate at the nearby restaurant, the Paean, which they enjoyed. On their first day there, they all walked the Bathers Way Walk, stretching from Nobby’s Headland to Glenrock Reserve. It was advertised as an easy 5 km coastal walk. The bushland had been devastated by the recent bushfires. Peter tripped over because the path was uneven as water runoff had gouged out a gap in the dirt path. He had not been looking at the path as he was looking at some interesting regrowth on a tree. Peter broke his ankle.
The next day, Joanne and Kerry took a banana boat ride, which is an inflatable boat towed by a speedboat. It was advertised as promising lots of laughs and thrills. Unfortunately, Kerry lost her balance and was flipped into the water. She suffered bruising and two broken ribs.
Bruised and battered they returned to Sydney. Joanne and Tony started to feel a little unwell – Tony a little more so than Joanne. He had a slight cough and runny nose but nothing too severe. Within a few days it was announced on the news that a person who worked at the Paean restaurant had tested positive to the novel coronavirus, Covid-19, and anyone who had eaten at the restaurant in the last ten days were to self-isolate and get tested. At hearing this news, Tony started to become very anxious. He was worried that Joanne had contracted the virus and that he and Joanne were going to die. He also had an overwhelming guilt that he might have passed the illness on to others. They self-isolated but didn’t get tested. Tony stopped eating and sleeping and was unable to work effectively.
Towards the end of their self-isolation period, Joanne’s health began to deteriorate to the extent that she could barely breathe. An ambulance took her to hospital where she spent seven days in the Intensive Care Unit. She tested positive to Covid-19.
Tony was not allowed to visit Joanne this whole week, partly because she was in an isolation ward, and partly because he was still meant to be isolating at home. Finally, Tony was tested and returned a negative test. Joanne recovered but now has a weakened lung function.
Tony eventually sought psychological help and was told that he was suffering from post-traumatic stress disorder and associated anxiety. He was given anti-anxiety medicine.
If Peter sued the National Parks and Wildlife Service NSW, who are responsible for the bushwalk surrounds, explain what the legal standard of care would be and determine if a breach had occurred on the given facts.
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