Verryt v Schoupp

Case [2015] NSWCA 128


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Verryt v Schoupp [2015] NSWCA 128
Hearing dates:31 March 2015
Decision date: 15 May 2015
Before: Meagher JA at [1];
Gleeson JA at [92];
Sackville AJA at [93]
Decision:

1.  Appeal allowed in part.
2.  Set aside the verdict and judgment of the District Court ordered on 15 April 2014.
3.  Verdict and judgment for the respondent (plaintiff) against the appellant (defendant) in the sum of $1,679,417.
4.  Order that the judgment in order 3 takes effect on 15 April 2014.
5.  Order the respondent pay 90% of the appellant’s costs of the appeal.

Catchwords:

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – injuries arising from child “skitching” (riding a skateboard whilst being towed by a vehicle) – findings as to contributory negligence of 12 year old boy under s 5R of the Civil Liability Act 2002 (NSW) – whether primary judge erred in apportioning responsibility wholly to the driver

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – damages for future economic loss – where damages assessed on basis that most likely future circumstance (s 126) would have been employment as a tradesman – where damages adjusted to include lump sum representing value of lost opportunity to earn higher income in self-employment – whether s 126 permitted such an award – whether adjustment for lost opportunity to earn higher income manifestly excessive

EVIDENCE – admissibility – relationship between ss 79 and 80 of the Evidence Act 1999 (NSW) – “expert” evidence as to matters within ordinary or common experience – whether opinions as to ordinary behaviour of children “based” on specialised knowledge
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D(1), 5R
Evidence Act 1995 (NSW), ss 79, 80
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)
Motor Accidents Act 1988 (NSW), s 74
Motor Accidents Compensation Act 1999 (NSW), s 138
Cases Cited: Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70
Campbell v R [2014] NSWCCA 175
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
Davis v Swift [2014] NSWCA 458
Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Grills v Leighton Contractors Pty Limited [2015] NSWCA 72
Kollas v Scurrah [2008] NSWCA 17
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
McHale v Watson [1966] HCA 13; 115 CLR 199
Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464
Nicholson v Nicholson (1994) 35 NSWLR 308
Nominal Defendant v Rooskov [2012] NSWCA 43
Pennington v Norris [1956] HCA 26; 96 CLR 10
Podrebersek v Australian Iron &…

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AGLC
Verryt v Schoupp [2015] NSWCA 128
Case
[2015] NSWCA 128
Decision Date

CaseChat Overview and Summary

The case of *Verryt v Schoupp* concerned an appeal from a District Court decision regarding injuries sustained by a 12-year-old boy, the respondent, who was "skitching" (riding a skateboard while being towed by a vehicle) when he was injured. The appellant was the driver of the vehicle. The primary dispute revolved around the apportionment of responsibility for the accident and the assessment of damages.

The Court of Appeal was required to determine whether the primary judge erred in apportioning 100% of the responsibility for the accident to the driver, particularly in light of the boy's age and the provisions of s 5R of the *Civil Liability Act 2002* (NSW) concerning contributory negligence. Additionally, the court had to consider the assessment of damages for future economic loss, specifically whether the primary judge correctly applied s 126 of the *Motor Accidents Compensation Act 1999* (NSW) in awarding a lump sum for the lost opportunity to earn a higher income in self-employment, and whether this adjustment was manifestly excessive. The admissibility of expert evidence concerning the ordinary behaviour of children was also a point of contention.

The Court of Appeal found that the primary judge had erred in attributing sole responsibility to the driver, holding that the 12-year-old boy was contributorily negligent. The court reasoned that while the driver owed a duty of care, the boy, despite his age, also had a responsibility to take reasonable care for his own safety. The court also reviewed the assessment of future economic loss, finding that the lump sum awarded for the lost opportunity of self-employment was excessive. The court allowed the appeal in part, setting aside the original judgment and ordering a new verdict and judgment for the respondent against the appellant. The respondent was ordered to pay 90% of the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside the verdict and judgment of the District Court ordered on 15 April 2014.

3. Verdict and judgment for the respondent (plaintiff) against the appellant (defendant) in the sum of $1,679,417.

4. Order that the judgment in order 3 takes effect on 15 April 2014.

5. Order the respondent pay 90% of the appellant’s costs of the appeal.

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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