Tommy is employed as a chef at a 5 star restaurant. Last week, a diner placed an order for a gluten-free meal. Tommy assumed the waiter knew which plate contained the gluten-free food, so didn’t bother labelling the gluten-free meal. Thinking the gluten-free plate would come out separately from other meals, the diner was given the wrong plate and suffered a severe allergic reaction which required hospitalisation. 

Required: 

a) Does Tommy owe the diner a duty of care? Refer to law and give reasons. 

b) If so, did Tommy breach this duty? Refer to law and give reasons. 

c) In relation to Element 3, what would the diner need to prove to hold Tommy responsible for going to hospital? Refer to law and explain. 

d) Assuming Tommy and the waiter are unable to pay compensation, who else could be held responsible for the diner’s injuries?