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.
Legal element Facts which satisfy the legal element
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.
Understanding the legal elements of negligence and contributory negligence
Facts which satisfy the legal element
The respondent commenced proceedings against the appellant in the District court for claiming damages due to the negligence of the appellant. The respondent claimed that he sustained injuries due to the actions of the appellant.
The defense that had been taken by the defendant was that the injuries had been caused to the plaintiff due to his own negligence. The following points had indicated contributory negligence on the part of the plaintiff::
· Riding the skateboard while holding on the moving car of the defendant
· Voluntarily engaging in an activity which was inherently dangerous
· Not taking necessary precautions of own safety
· Not wearing a helmet.
The defendant argued that the injuries sustained by the plaintiff had been caused due to the contributory negligence f the defendant. It had been argued that the boy was careless as he engaged in the following actions :
- Riding the skateboard while holding onto the moving car of the defendant
- Voluntarily engaging in an activity which was inherently dangerous
- Not taking necessary precautions of own safety
- Not wearing a helmet while riding the skateboard.
The primary judge in this case had rejected the defense of contributory negligence on the part of the appellant. It was held by the primary judge that the respondent had been negligent in the respects as alleged by the respondent. However His Honor in relation to the ground of defense of failure to wear a helmet stated that the injuries sustained by the plaintiff would have been the same even if he had worn a helmet. The reasoning given by the primary judge for taking into consideration of the aforementioned defense ground was that, the defendant had sustained frontal lobe injuries and that wearing a helmet would not have reduced the chances of sustain the injuries. The other aspects of carelessness on the part of the defendant which had contributed significantly to sustaining the injuries had not been questioned or contested by the judge. It was also held by the primary judge that the plaintiff had failed to take reasonable care due to which he sustained the injuries.
It can be stated that even though the primary judge had found that the boy was partly personally liable for sustaining the injuries in spite of that, he decided that the driver should be fully responsible for the accident due to which the plaintiff sustained severe injuries. However, it was held His Honor that the apportionment of the liability due to the contributory negligence on his part was completely overshadowed and eclipsed by the overwhelming negligence on the part of the appellant. It can be stated that the judge had stated that appellant driver was 100 percent responsible for the accident and therefore there was no reason for no reason for reducing the amount claimed by the plaintiff due to the contributory negligence on the part of the plaintiff.
In the court of appeal the entire was matter was reduced whether the primary judge in relation to this case had erred in giving the judgment that there should be no reduction in the damages to be awarded to the respondent. It can be stated that neither of the parties had relied on the Australian Road Rule for the purpose of determining negligence or contributory negligence. The rationale is bend it is that determination of what reasonable care requires any person to do in any scenario is not resolved by asking whether the conduct in consideration was prohibited by the law or any of the rules of the state. It can be stated that the relevant statutory provisions dealing with contributory negligence reflect the provisions of common law which state that the lack of care on the part of the claimant must contribute to the injuries sustained by plaintiff. It can be stated that the apportionment of the damages between the defendant and the plaintiff of their respective contribution in the responsibility for paying the damages involves a comparison of both the importance of the act which caused the party to sustain injuries and of culpability. The court of appeal held that the entire conduct of each of the negligent parties in relation to the accident must be examined comparatively. The examination involved all the relevant elements of the case such as the circumstances, in which the accident took place, importance of the act of the parties which caused led to the sustenance of the injuries.
Facts indicating contributory negligence on the part of the boy
It had been held by the Court of Appeal that the conduct of the respondent must be taken into consideration as he had engaged in an activity which he had understood to carry some risk of injury. It can be stated that the primary judge had held that a reasonable 12 year old would have understood the risk associated with the conduct, in which the respondent had engaged. However, the court of appeal also stressed on the evidence that had been provided by the respondent which highlighted the fact that respondent appreciated that the act of skitching involved significant danger. This inference had been drawn from the decision of the primary judge, that the defendant was comfortable with the risks associated with skitching.
In this regard, it is worth mentioning that in the present scenario the responsibility was partly on part of the appellant in order to comply with safety operations of vehicle. However, it was important on the part of the appellant foresee the consequences of such injury which could be reasonably foreseeable on the part of any reasonable person of prudent nature. In order to emphasize on the fact that whether there was contributory negligence or not, the court of appeal took into consideration the negligence existing on the part of the defendant, however it focused more on the liability of the driver of the car. It had been held by the court of appeal that the appellant was majorly responsible as he was in the position to prevent the accident and should not have encouraged the respondent to engage in such an activity. It is worthwhile to refer here that it is important ob the part of the appellant to bear the responsibility for the injuries caused to the respondent in relation to the matter in concern. However, it is essential that the responsibility in relation to the damage sustained by the respondent. Lastly it is noteworthy to mention that damages to be awarded to the respondent therefore be reduced by ten percent.
In this case the court of appeal had cited a few relevant cases, which the judge of the court of appeal had relied on while giving his verdict. Some of those relevant cases were
Boral Bricks Pty Ltd v Cosmidis (No 2) , British Fame (Owners) v Macgregor (Owners)  AC 197, Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd , Campbell v R, Dasreef Pty Ltd v Hawchar 243 CLR 588, Davis v Swift
Director of Public Prosecutions v United Telecasters Sydney Ltd 168 CLR 594. Some of the relevant legislations which had been cited include and Motor Accidents Act 1988 (NSW), s 74
Boral Bricks Pty Ltd v Cosmidis (No 2)  NSWCA 139,
British Fame (Owners) v Macgregor (Owners)  AC 197,
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd  FCAFC 70 ,
Campbell v R  NSWCCA 175,
Dasreef Pty Ltd v Hawchar  HCA 21; 243 CLR 588,
Motor Accidents Act 1988 (NSW), s 74
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