September 13, 2015

How much responsibility should be allocated to a 12-yr-old boy who fell from his skateboard while hitching a ride behind a car?

Liam Schoupp and two other boys aged 16 and 15 were sitting on the side of the road with their skateboards in suburban Woonona north of Wollongong when another youth – their friend – pulled up in a car driven by his father.

At the older boys’ urging, driver Alphonse Verryt allowed the three to “skitch” a ride up the hill on their skateboards while holding on to the boot latch of his Subaru wagon. None were wearing helmets.

As the wagon moved forward at a speed “a little bit faster than walking pace,” Liam’s board went into a wobble and he fell off backwards striking his head on the road.

After a nine-day trial in the ensuing lawsuit, the court ruled that although the 12-yr-old bore some contributory negligence, fault for the accident should be apportioned 100% to the driver and 0% to the child.

According to District Court Judge Len Levy, Verryt – as driver and presiding adult – had the ultimate say on whether or not the exercise went ahead.

For that reason, he “must overwhelmingly bear responsibility” for the consequences of the brain injury arising from Liam’s subgaleal haematoma and frontal contusions.

Persistent headaches, irritability, disturbed sleep, excessive tiredness, confusion, forgetfulness, episodes of staring, and difficulty concentrating were all features of his condition.

The driver’s CTP insurer appealed against the more than $2 million damages awarded, contending Liam should be allocated some liability because he clearly understood he was taking a dangerous risk and was not wearing a helmet.

Justice Anthony Meagher – delivering the lead judgement on appeal in substantial agreement with Judge Levy’s original decision – ruled that although “it might reasonably be inferred he understood there was a risk of falling off, it does not follow he had the degree of foresight to appreciate he might suffer serious and permanent injuries”.

And while the helmet would likely have prevented the hairline fracture to the back of his skull, “there was no evidence to suggest that it would have prevented the consequential damaging contrecoup contusions” – caused by the brain bouncing against the skull wall after the head’s impact with the bitumen – “to the frontal lobes of his brain”.

He also agreed that “an optimistic 12-year-old is likely to be oblivious to the real and ever present-prospect” of a serious injury.

Nevertheless, some attribution of responsibility was warranted with 10% being nominated as “sufficient allowance for his lack of care for his own safety”.

The injury occurred in January 2007. Liam had turned 20 by the date of the appeal.

The appeal judge’s reassessment reduced his loss of future earning capacity damages to $435k.

Together with $300k for general damages and $660k for future care, the total assessment was reduced to $1.87 mil.

After deduction of 10%, his total came out to $1.68 mil that the insurer must pay.

Verryt v Schoupp [2015] NSWCA 128 Meagher JA Gleeson JA Sackville AJA 15/05/2015 – view decision

Categories: Personal Injury , Litigation & Law Practice

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