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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.