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By: Cameron Seymour, Esq. & Catherine King, Esq.
Mullins Lawyers
Brisbane, Australia

We all know the “oh-no” moment when what we hoped wouldn’t happen, happens. The case of Verryt v Schoupp1 is one we can all relate to and it confirms the test for contributory negligence.

Cast your mind back to when you were a 12 year old child. Did you perceive the world with delight and pure abandonment? Was riding your BMX full pelt down the steepest hill, throwing cricket balls near windows and practising wrestling moves on your little sister a normal day? Most children will do these things despite their parents’ protesting “this will end in tears” but what if the parent condoned the activity?

In 2007, Liam Schoupp, a 12 year old boy sustained serious injuries when he lost his balance and fell from his skateboard while “skitching” (hitching a ride by holding onto a motor vehicle) up a hill.

Alphonse Verryt, the father of one of Shoupp’s friends, agreed to allow three boys (including Schoupp) to hold onto the back of his moving car while riding on their skateboards. The car was travelling at 10 to 15km an hour. Schoupp fell, suffering a hairline fracture to his skull resulting in brain damage.

The trial Judge found Verryt 100% liable for Schoupp’s injuries and ordered him to pay damages of $2,204,150. On appeal, the Court considered Verryt was not wholly liable and found Schoupp 10% contributory negligent for his own injuries. The Court reassessed the award at $1,679,417.

Standard of Care

The basis of the Court’s decision was that the standard of care to be met by a 12 year old boy is substantially lower than that to be met by an adult. The apportionment of liability reflects that an adult (particularly in the trusted position of a father) is wiser than a 12 year old boy and, when faced with a decision to engage in a dangerous activity (such as skitching), would be better at weighing up the associated risks of injury.

Standard of Care of a 12 year old

The Court considered Schoupp lacked the sense, foresight and circumspection of an adult.

“…a 12 year old boy is unlikely to perceive as a realistic prospect the risk of a serious injury such as was sustained by the respondent. A 12 year old is optimistic and likely to be oblivious to the real and ever-present prospect of such an injury. In the somewhat wistful language of Kitto J, that degree of sense and circumspection is one “which nature ordinarily withholds till life has become less rosy””.

Whilst the Court considered a 12 year old boy understood skitching involved some risk of injury (through losing balance and landing awkwardly), it did not consider a boy, through optimistic and naive eyes, could foresee the gravity of the risk of serious brain damage, especially if an adult condoned the activity. Nevertheless, the Court decided the general risk of injury should have been obvious to Schoupp, which warranted some reduction for contributory negligence.

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