Analysis Of Schoupp V Verryt Case: Applying Legal Principles Of Torts And Negligence

Legal Element

The purpose of this study is to test your group’s understanding of the legal principles discussed in lecture 7 (torts – law of negligence) as they apply to a recent, real case.  The extracts which have been on Moodle for a week refer to the ratios (reasoning) of both the primary judge (who first heard the case) and the Court of Appeal (which varied the primary judge’s decision.  

The case study requires you to express legal principles from the case in your own words.  It is not a cut and paste exercise. Some short quoting of a phrase or sentence from the court’s reasoning is allowed (to show you can identify an important principle) but copying large sections of wording from the judgment is not an answser;  it will count as plagiarism and not earn any marks. 

Be aware that some questions ask you to state facts while others require you to identify and explain a legal principle ... be careful to do what is asked (ie, stating just facts when a legal principle is asked for will earn a low mark or no mark at all). 

To answer the first question you should copy from this document into your answer the blank template provided below and insert your responses to the various parts of it. As this is a Word document, you can expand the size of each field to enable a full explanation of your answer to be given. 

Word limit for the case study is about 1,000-1,200. 

Marks available for each of the 7 questions (out of 20) are stated in square brackets.  

Do not repeat (re-type) the questions in your answer;  this causes a high similarity score in Turnitin.  Just put a heading over each answer : “Question 1”, “Question 2”, etc. 

The questions

1. The primary (ie, first) judge found that Verryt (the car driver) was liable to Schoupp (the boy) for the injuries he suffered. Using the template below analyse the facts in this case to explain fully the reasoning the judge would have followed in applying the law to come to this legal conclusion.  [5 marks]

2 The primary judge also found that Schoupp (the boy) had been careless about his own safety in four ways.  However, the judge only took account of three of those ways in assessing the boy’s responsibility for own injuries (ie, he disregarded one of them). 

(a) What were the four acts of carelessness by the boy? [2 marks]

(b) Which of the four did the judge disregard and for what legal reason did he take no account of it? [2 marks]

3 Despite finding that the boy was partly responsible for his own injuries the primary judge decided the driver should bear total responsibility (blame).  What reason did the primary judge give for coming to this conclusion? [3 marks]

4 In the appeal the Court did not consider  whether the actions of either the driver orthe boy had broken any statutory rule of the road. Explain why the question of whether any road rule had been broken was not relevant to the legal issue the Court of Appeal was deciding. [2 marks]

5 The Court of Appeal took a different view from that of the primary judge (as described in question 3) and said the boy must bear at least some blame. On the basis of what facts did the Court of Appeal come to this conclusion? [2 marks]

6 Despite concluding the boy must bear part of the blame the Court of Appeal said that it should be only a small part (ie, 10%).  Explain the Court of Appeal’s ratio (ie, reasoning) in coming to this conclusion. [2 marks]

7 The Court of Appeal declared that the driver was responsible for the safe functioning of the vehicle vehicle and ‘skitching’ was not a safe function.  What precedent (ie, principle having a wider application that to just this case) is the Court of Appeal expressing here which could apply to other persons in charge of cars, or a power boat on the water, or persons supervising activities where others (adults or children) are involved? [2 marks]

Analysis of the; Schoupp v Verryt case, legal elements that the first judge used in applying the law that brought legal conclusion in this case

 Question: 2 (a)

The first judge found the plaintiff to be liable of negligence. These were actions that lead to the injuries (Beever, 2011). Although the boy was 12 years old he was able to reason and make better choices. Despite full responsibility being levied to the driver who was a mature driver, the boy was responsible for the following.

• The boy was not wearing a helmet or any head protection.
• Willingly taking part in a very risky exercise.
• The boy did not put in place adequate measures for his own personal safety.
• Skating while holding the defendants moving vehicle which is both illegal and risky.

Question: 2 (b)                            

The judge disregarded that the boy was negligent by not wearing a helmet. This is because even if the boy was wearing a helmet, he could have still suffered injuries to his skull and frontal lobe (Kripke, 2013). The judges’ reasoning was that the boy not wearing the helmet was ineligible to the other legal facts.

Question: 3

The primary judge in apportionment of negligence responsibility, found the driver to be fully responsible for the damages and injuries (Barker, 2014). This is because, even if the boy was partly to blame, the drivers’ lack of care overshadowed the boy’s negligence. Had the driver cared in the first place for the boys’ safety, the accident could not have happened. The driver was also a mature adult unlike the young boys to make more informed decisions (Fleming, 2012).

Question: 4

The court of appeal did find neither the driver nor the boy to have broken any statutory road rules and they weren’t relevant in this case due to the following reasons.

• Neither the plaintiff nor the defendant had initially relied on Rule 244 of statutory road rules (Kripke, 2013). It is evident both parties were in violation of Rule 244.
• Rule 244 prohibits a person from travelling on a wheeled recreation device. As much as the boy was guilty, his actions were in agreement with the driver.
• The other reason why the Rule 244 wasn’t considered of a person holding onto a moving vehicle is because both parties were in agreement (Perry, 2012). The driver was getting information from his co-driver who was his son on how the boys were faring on at the back. The driver was also checking on the boys through the rear window.
• Contrary the appeal court could have taken Rule 244 into consideration if it wasn’t agreeable to both parties in breaching (Allen, 2010).

Question: 5

The court of appeal apportioned the boy some blame and reduced his compensation by 10% to make the ruling equitable and just (Feldthusen, 2010). This was due to contributory negligence by both parties. The boy was also required to be responsible for his own personal safety. Despite the boy being young and immature at 12 years old, he was reasonably conscious of the risks involved in skate boarding while holding a moving vehicle without helmet
(Folsom, et. al., 2012). It is still just that the driver got the biggest part of the blame because he is a mature adult who was in a position of making a better choice.

Question: 6

The reasoning for the Court of Appeal to make the boy to have part of the blame was to ensure that the ruling was just and fair. The appeal judge reasoned that the boy was old enough to know that his actions had consequences. This was also more evident in him engaging in a risky exercise without any protective gear (Beever, 2017).

In the case of negligence the boy was responsible for the following.

• It was the duty of the boy to ensure his safety was guaranteed having agreed to skateboard behind a moving vehicle. The boy failed in taking responsibility for his actions.
• In the legal aspect of duty, the boy should have taken due diligence in ensuring that he holds firmly to the moving vehicle. There is no explanation as to why he let go of the moving vehicle. This can be deduced to be negligence.
• The cause of the damage to himself can also be reasoned to have been occasioned by him. If he hadn’t been holding the moving vehicle the accident could not have happened (Barker, 2014).
• The boy was also responsible to have foreseen the consequences of his actions. This is evident because at 12 years a person is mature enough to know right from wrong. 

Question: 7

The Court of Appeal set a precedent in law by ruling that the driver was responsible for the safe functioning of the vehicle and skitching was not a safe function because of the following reasons.

• Rule 244 of the statutory road safety prohibits skitching. This is because the driver could have taken responsibility and declined the boys request to hold on his moving vehicle.
• The precedent set hear is for anyone operating any machine should take full responsibility (Allen, 2010). This can apply to boats and even vehicles.
• This calls for diligence care to be observed by everyone who has responsibility and obligation by the rule of law or common sense law (Gallup, 2015).
• Negligence should also be avoided in any given activity if it will result in damages or injuries as was evident in this particular case.
• Proximity to cause should be taken into consideration in delivering duties and responsibilities. This applies more in cases that may involve children.

References

McDonald, B., 2010. Legislative intervention in the law of negligence: The common law, statutory interpretation and tort reform in Australia. Sydney L. Rev., 27, p.443.

Fleming, J.G., 2014. The law of torts (Vol. 1).Law Book Company for New South Wales Bar Association.Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia.Oxford University Press.

Kessler, D.P., Summerton, N. and Graham, J.R., 2016. Effects of the medical liability system in Australia, the UK, and the USA. The Lancet, 368(9531), pp.240-246.

McDonald, B., 2006. The impact of the civil liability legislation on fundamental policies and principles of the common law of negligence.

Gallup, E.M., 2015. Law and the team physician.Human Kinetics Publishers.

Runciman, W.B., Merry, A.F. and Tito, F., 2013. Error, blame, and the law in health care—an antipodean perspective. Annals of internal medicine, 138(12), pp.974-979.

Barker, K., 2014. Unreliable assumptions in the modern law of negligence. Law Quarterly Review, 109(3), pp.461-484.

Perry, S.R., 2012. Protected Interests and Undertakings in the Law of Negligence. The University of Toronto Law Journal, 42(3), pp.247-317.

Beever, A., 2017. Rediscovering the Law of Negligence.Bloomsbury Publishing.

Feldthusen, B.P., 2010. Economic negligence: the recovery of pure economic loss. Carswell Legal Publications.

Allen, W.T., 2010. Independent Directors in MBO Transactions: Are They Fact or Fantasy?. The Business Lawyer, pp.2055-2063.

Kripke, H., 2013. The myth of the informed layman. The Business Lawyer, pp.631-638.

Folsom, R.H., Gordon, M.W., Spanogle, J.A., Fitzgerald, P.L. and Van Alstine, M.P., 2012. International business transactions: a problem-oriented coursebook. ThomsonReuters.