Schoupp v Verryt

Case [2014] NSWDC 28

District Court


New South Wales

Medium Neutral Citation: Schoupp v Verryt [2014] NSWDC 28
Hearing dates:12, 13, 14, 17, 18, 19, 21, 26 & 28/03/2014 (Last submissions 04/04/2014)
Decision date: 14 April 2014
Jurisdiction:Civil
Before: Levy SC DCJ
Decision:

1.Finding that there was contributory negligence on the part of the plaintiff;

2.The respective contributions of the negligence of the parties is apportioned to be 100 per cent on the part of the defendant and 0 per cent on the part of the plaintiff;

3.There should be a verdict and judgment for the plaintiff without discount for contributory negligence;

4.The plaintiff's interim damages arising from his injuries on 30 January 2007 are assessed in the sum of $1,954,150.47 before the addition of the appropriate amount to be added as damages for funds management charges;

5.The parties are to prepare short minutes concerning the issue of funds management and the steps required to finalise the proceedings;

6.Liberty to apply on 7 days notice if further orders are required.

Catchwords: TORTS - motor vehicle accident - plaintiff sustained a head injury following a fall onto the roadway after being towed on a skateboard by maintaining a handhold behind defendant's vehicle - breach of duty of care admitted by defendant - finding of contributory negligence on part of plaintiff - on apportionment, plaintiff's contribution assessed at 0 per cent - defendant's contribution assessed at 100 per cent; DAMAGES - assessment of claimed heads of damage - whether there should be an award for funds management charges
Legislation Cited: Evidence Act 1995, s 80
Civil Liability Act 2002, s 5D, s 5E, s 5R,s 5S
Civil Procedure Act 2005, s 56 - s 58
Law Reform (Miscellaneous Provisions) Act 1965, as amended by the Law Reform (Miscellaneous Provisions) Act 2000, s 9
Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 138, s 141B
Protected Estates Act 1983
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Arnott v Choy [2010] NSWCA 259
Axiak v Ingram [2011] NSWSC 1447
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kallouf v Middis [2008] NSWCA 61
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
McHale v Watson [1966] HCA 13; (1966) 115 CLR 199
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mead v Kerney [2012] NSWCA 215
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mobbs v Kain [2009] NSWCA 301
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529
Rosniak v GIO [1997] 41 NSWLR 608
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AGLC
Schoupp v Verryt [2014] NSWDC 28
Case
[2014] NSWDC 28
Decision Date

CaseChat Overview and Summary

Schoupp brought proceedings against Verryt in the Supreme Court of Victoria, alleging that Verryt was negligent in causing him to fall from his skateboard onto the roadway after being towed behind Verryt's vehicle, resulting in a head injury. Verryt admitted liability for the accident but argued that Schoupp was contributorily negligent. The primary issue before the court was whether Schoupp was contributorily negligent and, if so, to what extent this contributed to the accident and the resulting damages. Additionally, the court had to determine the appropriate assessment of damages, including whether funds management charges should be awarded.

The court found that Schoupp was not contributorily negligent and assessed the defendant's contribution to the accident at 100 per cent. Schoupp's damages were assessed at $1,954,150.47 before adding damages for funds management charges. The court held that Schoupp was entitled to recover damages in full without any reduction for contributory negligence. The court also directed the parties to prepare minutes concerning the issue of funds management and the steps required to finalise the proceedings. Liberty to apply was granted for further orders if necessary.

The court ordered that there was contributory negligence on the part of Schoupp, but the respective contributions of negligence were apportioned as 100 per cent on the part of Verryt and 0 per cent on the part of Schoupp. A verdict and judgment were entered in favour of Schoupp without any discount for contributory negligence. Schoupp's interim damages were assessed at $1,954,150.47, pending determination of the funds management charges. The parties were required to prepare short minutes concerning the issue of funds management and the steps required to finalise the proceedings, with liberty to apply for further orders on seven days' notice.

Orders

Orders of the court

1.Finding that there was contributory negligence on the part of the plaintiff;

2.The respective contributions of the negligence of the parties is apportioned to be 100 per cent on the part of the defendant and 0 per cent on the part of the plaintiff;

3.There should be a verdict and judgment for the plaintiff without discount for contributory negligence;

4.The plaintiff's interim damages arising from his injuries on 30 January 2007 are assessed in the sum of $1,954,150.47 before the addition of the appropriate amount to be added as damages for funds management charges;

5.The parties are to prepare short minutes concerning the issue of funds management and the steps required to finalise the proceedings;

6.Liberty to apply on 7 days notice if further orders are required.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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