A 12-year-old boy who suffered a serious brain injury while “skitching” (holding on to a moving car while riding on a skateboard), and was successful in his claim against the driver and awarded more than $2.2m in damages, has been found on appeal to have been contributorily negligent, with the New South Wales Court of Appeal reducing the damages by 10% on account of his lack of care for his own safety.
On the evening of 30 January 2007, Liam Schoupp, who was two months off turning 12, was with two of his friends, aged 15 and 16 and they were sitting on the side of Hillcrest Avenue, Woonona with their skateboards. Alphonse Verryt was driving along Hillcrest Avenue. His son, who was good friends with the other three boys, was sitting in the front seat of the car. Mr Verryt stopped and was persuaded by the boys, other than Liam, to allow the three boys to “skitch” a ride up the hill by holding on to the boot latch at the back of the car while on their skateboards. After the boys had hold of the car, Mr Verryt drove off at a speed of no more than 15 km/h. Liam was not wearing a protective helmet. After the car had travelled a couple of hundred metres up the road, Liam started to wobble on his skateboard and he let go of the car, falling backwards and striking his head on the roadway. He suffered a hairline fracture to the occipital region of his skull and contrecoup contusions to the frontal lobes of his brain.
Liam commenced proceedings in the District Court of New South Wales against Mr Verryt in negligence and claimed damages. Mr Verryt denied liability and also alleged that Liam was contributorily negligent in riding a skateboard holding onto the car while it was moving, voluntarily engaging in an activity that was inherently dangerous, failing to take adequate precautions for his own safety and failing to wear a protective helmet.
The primary judge, his Honour Levy DCJ found in favour of Liam and awarded total damages of over $2.2m, which included a substantial award for future economic loss and funds management, with no reduction for contributory negligence. His Honour found that Liam’s lack of care “was totally eclipsed and overshadowed by the overwhelming negligence” of Mr Verryt and on that basis, found that it was just and equitable that Mr Verryt bear 100% of the responsibility for the occurrence of the accident.
His Honour found that a reasonable 12-year-old boy in Liam’s circumstances would have appreciated the risk and not engaged in the activity at all, would have appreciated that he should have been wearing a bicycle helmet, and causally contributed to the occurrence of the accident and the injuries. His Honour also found that the failure to take care of both Liam and Mr Verryt was a necessary condition of the accident. However, in weighing the relevant standard of care of an adult driver and a 12-year-old boy, Levy DCJ found that Mr Verryt must bear full responsibility.
Mr Verryt appealed the primary judge’s findings and assessment of damages on two main grounds. Firstly, whether the primary judge erred in concluding that there should be no reduction for contributory negligence and secondly, whether the primary judge erred in including the amount of $200,000 in the assessment of damages for future economic loss as a buffer for a loss of a chance to earn income from self-employment as a qualified carpenter.
Mr Verryt argued that the primary judge erred in finding that there should be no reduction for contributory negligence. He argued that the finding that he was overwhelmingly culpable was not justified by the evidence and that the primary judge erred in not finding that at the time of the accident Liam appreciated that “skitching” was dangerous. He also argued that the primary judge erred in relying on the speculative, inadmissible and irrelevant opinions of Associate Professor Quadrio, who gave opinion as to the behaviour of 12-year-old boy. Mr Verryt also argued that the primary judge’s award of $200,000 by way of a buffer for a loss of opportunity for self-employment was manifestly excessive.
The court noted that Liam gave evidence about an earlier occasion on which he had been towed on his skateboard by Mr Verryt, and found that Liam had an understanding, gained or held before the accident on 30 January 2007, that the activity involved danger. On that basis, the court found that the primary judge’s finding that there was no evidence as Liam’s understanding of the danger, and that such a finding formed the basis of the primary judge’s assessment of Mr Verryt’s culpability, was wrong and required the court to reassess the question of apportionment.
The court found that Mr Verryt, as an adult and driver of the vehicle, appreciated that “skitching” involved significant risks of injury and was in the position to prevent the activity and should not have allowed it to occur. While Mr Verryt must bear by far the greater responsibility for the injuries suffered by Liam, the court found that it is just and equitable that Liam bear a small proportion of the responsibility, by way of a 10% reduction for an allowance for Liam’s lack of care for his own safety.
The court also found that the primary judge’s award of a buffer of $200,000 for a loss of earning capacity and opportunity of Liam being a self-employed carpenter/builder was manifestly excessive on the evidence, and reassessed and reduced the allowance to $25,000. Interestingly, the court also found that the evidence and views of Professor Quadrio were matters of ordinary human experience and were not based on any specialised knowledge in which she was an expert by reason of her training, study or experience, and noted that “Cases can and should be resolved justly and speedily without reliance on expert evidence of dubious utility”.
This article was written by Jackie Waugh, Wolters Kluwer, CCH Torts Law Writer and Editor and first appeared in the Australian Personal Injury Health and Medical Law Tracker.