Elle runs a Bed & Breakfast house in the Southern Highlands in NSW. To give it a certain quaintness, Elle decides to install outside shutters to frame her windows. Elle orders the pine shutters, which are on sale in the local hardware store. Elle hires a handyman to install the shutters. The instructions are contained in a booklet supplied with the shutters. In very small writing appears the following statement:
These shutters are for decoration only and should not be installed where exposed to harsh weather conditions.
The handyman read this clause but did not say anything to Elle.
After the shutters had been in place for several months, the wood appeared to be splitting. Elle notices that some of the shutters are damaged but does nothing about them.
On a windy evening, one of the damaged shutters is blown from the window surrounds and hits Kimberley, a guest who was in the garden enjoying her one cigarette per day. Another shutter flies off and hits Charles, a member of the public,who is taking a short cut across Elle's property having been caught out too long on abush walk.
Kimberley suffers bruising and cuts across her arm and shoulder and develops a phobia about wind, claiming she can no longer leave the security of her own home, and cannot work. Charles suffers a head injury and is off work for six months recovering.
Elle immediately removes all the shutters.
Kimberley and Charles have advised that they intend to sue Elle in negligence. Advise Elle on the likelihood of those claims being successful, giving full legal reasons for your response.