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.
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?
(b) Which of the four did the judge disregard and for what legal reason did he take no account of it?
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?
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.
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?
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.
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?
Facts which satisfy the legal element
The respondent has claimed damages that have been caused because of the negligence of appellant and the respondent have started the proceedings regarding this matter against the appellant. A claim was made by the respondent that because of the activities of appellant he had to suffer from injuries.
The defendant had taken the defense that because of the plaintiff's own negligence, the injuries have been affected to him. There are some points that discuss the contributory negligence on the plaintiff's part. The first point is he was riding a skateboard by holding on to the car that was moving and it was owned by the defendant. The second point is engaging himself in the activity willingly that is dangerous. The third point is not taking any kind of precautions for their own safety and the last point is the helmet was not worn.
2.There was an argument that was made by the defendant that he had to suffer from injuries by plaintiff and it was caused because of the defendant’s contributory negligence. An argument was made that the boy was being careless as he was involved in the actions like is he was riding a skateboard by holding on to the car that was moving and it was owned by the defendant. He is engaging himself in the activity willingly that is dangerous. He was not taking any kind of precautions for his own safety and helmet was not worn by him.
The defense of contributory negligence was rejected by the primary judge in the abovementioned case. The statement was given by the primary judge that there was negligence by the respondent with regards as suspected by respondent. The primary judge also stated that the injury would have caused even if he had not worn the helmet as he has suffered the injuries in the front lobe and if he had worn the helmet then also there was no chance of the reduction to suffer it. The defendant was more careless and because of that he had suffered the injuries and it was not questioned by the judge. The plaintiff was unsuccessful to take care of himself and because of it he had suffered from injuries and it was stated by the primary judge.
3.It was found by the primary judge that boy was liable personally for his own injuries that he is suffering from. However, he also decided that the driver was responsible totally for the accident that was caused to the plaintiff. The negligence that was made by the appellant was so extreme that it overshadowed the contributory negligence made by the plaintiff. Thus, no reason was there to reduce the amount that was claimed by plaintiff as the driver was fully liable for the accident.
4.The court of appeal had a doubt that if the primary judge who was related to the above-mentioned case, had given a wrongful judgment that no reduction must be there that was to be given to the respondent. Another statement can be given that none of the parties have relied upon the Road Rule of Australia for determining the negligence or the contributory negligence. A person has taken reasonable care or not does not state that whether he has prohibited any kind of rule or law of the state. The provisions of the contributory negligence reflect the common law provisions and it states the absence of care of the claimant and it must contribute to injuries that were suffered by the plaintiff. The compensation that the plaintiff will be getting depends on the importance of damages that has been caused to the party. It was held by the court of appeal that the cases of each negligent parties must be observed properly and it must involve all the circumstances that headed to the accident.
5.The court of appeal said that respondent’s conduct must be considered as he was involved in the activity that carried some risks. The primary judge said that the boy must know about the risk that this activity had. The proof that was given by the respondent to the court of appeal was looked properly and it was valued that the skitching act involves danger. Thus, the conclusion that was taken from the primary judge’s decision is that defendant knew about the risks that were related to the skitching.
6.With respect to the situation, it can be said that the liability was on the partially on the appellant so that it can obey the operations of the safety of the vehicle. It has to be noted that it is significant on the appellants part to reasonably foresee the results of the harm which any reasonable person on the in the position of the defendant would do. For the purpose of addressing the issue of contributory negligence the court took into account the negligence which was present on the part of the plaintiff but is emphasis was much more on the duty of the defendant driver. The court of appeal held that appellant was responsible because he could have prevented the accident and must not have instigated the respondent to involve in that activity. It is important that the appellant must bear the liability for injuries that have been caused to the respondent with respect to the subject matter mentioned above. It is also essential that the liability with respect to the damage must be suffered by respondent. Therefore, there must a reduction of ten percent in the damages that will be suffered by the respondent. [at 25]
7.The precedent which have been laid down by the courts in relation future drivers and negligence is that even if there has been contributory negligence on the part of the plaintiff, if the negligence of the driver was extremely gross than it would overshadow the contributory negligence which have been committed by the plaintiff. The precedent also signifies that it is the responsibility of the drivers to drive extra carefully when they have knowledge that someone may be hurt by their actions and they are in a position to prevent the action and not allow it to take place. Allowing the careless of the plaintiff to proceed is also negligent on the part of the defendant. [at 24
Verryt v Schoupp  NSWCA