SCHOLZ v Cram - [2005] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SCHOLZ v CRAM
Reasons for Decision of The Honourable Justice Anderson
21 January 2005
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - DISABILITIES - INFANCY
Plaintiff was the driver of a motor vehicle which collided with the infant defendant who was six years old at the time - the defendant is now fourteen years of age and has not issued any proceedings for the injuries he has suffered - defendant's mother consented to act as guardian ad litem for the limited purpose of the interlocutory argument - the plaintiff sought to utilise s30B(1) of the Supreme Court Act 1935 to allow the question of liability for the defendant's injuries to be determined in advance of any claim brought by the defendant - the plaintiff sought a declaratory judgment - the defendant claimed that s30B(1) did not enable the plaintiff to force litigation on a person under a disability, and that only a party entitled to damages could obtain a declaration under that section - held: s30B(1) does not enable a potential defendant to seek a declaration as to liability - application dismissed.
Supreme Court Act 1935 (SA) s30B(1), s31; Limitations of Actions Act 1936 (SA) s35, s45A, s46; Law Reform (Ipp Recommendations) Act 2004 (SA); Supreme Court Rules 1987 (SA) r35.07, referred to.

SCHOLZ v CRAM
[2005] SASC 10
Civil

ANDERSON J In this matter the plaintiff sues the defendant following a road accident which occurred on 9 August 1996 at Loxton.
The case is somewhat unusual in that the plaintiff was the driver of a motor vehicle which collided with the defendant who was six years of age at the time and was a pedestrian. The defendant is now fourteen years of age and has not issued any proceedings for the injuries which he suffered.
Under Rule 35.07 of the Supreme Court Rules 1987 because no appearance had been entered on behalf of the infant defendant, the plaintiff required an order from the court appointing a guardian ad litem.
Mr Blumberg, who appeared as counsel for the defendant, indicated that he had instructions from the solicitors acting in the interests of the infant defendant that the defendant’s mother was willing to consent to an appointment as guardian ad litem for the limited purpose of dealing with this interlocutory matter. Accordingly, Bernadette Mary Cram was appointed guardian ad litem, thus enabling the plaintiff to continue with the action.
The notice for specific directions, after amendment, sought, pursuant to s30B(1) and s31 of the Supreme Court Act 1935 (SA) (“the Act”), to have the matter listed for an early trial. The main point pursued by Mr Coppola, counsel for the plaintiff, was that s30B(1) not only related to actions where damages where being sought by a plaintiff, but covered any party to proceedings, and enabled a potential defendant to bring proceedings so that a potential plaintiff was then a party. He explained the object of the exercise was to get some finality in relation to the question of liability at an early stage before memories faded, and in this particular case to avoid the possibility of one key expert witness dying or becoming incapable of giving evidence prior to the time of a trial.
It was necessary to utilise the provisions of s31 of the Act in addition to the provisions of s30B(1) because the statement of claim filed on behalf of the plaintiff did not allege any cause of action. It merely sought declaratory relief.
Section 30B(1) states:
“Where in any action the court determines that a party is entitled to recover damages from another party, it shall be lawful for the court to enter the declaratory judgment finally determining the question of liability between the parties, in favour of the party who is entitled to recover damages as aforesaid and to adjourn the final assessment thereof.”
Section 31 states:
“No action or proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.”
The plaintiff gave an undertaking to pay the costs of the defendant in these proceedings until the final delivery of my interlocutory judgment on the issue.
Mr Blumberg submitted that the wording of s30B(1) made it clear that the declaratory judgment could only be obtained by a party ‘who is entitled to recover damages’. As he pointed out, there is nothing to suggest, on the information available, that the plaintiff is or could ever be such a party. Mr Blumberg submitted that the clear purpose of s30B(1) is to enable injured plaintiffs with existing claims for damages to seek a declaratory judgment and adjourn the final assessment of those damages. He submitted that it was not in the interests of persons under a disability to have litigation forced upon them when there is no existing claim for damages brought by them in any proceedings.
Mr Blumberg further submitted that the provisions of s35 and s46 of the Limitations of Actions Act 1936 (SA) entitled an infant to a three-year period from the time he or she reached majority to issue proceedings. There was no certainty that, having attained the age of eighteen, the infant would issue proceedings at all. I agree with both of these submissions.
There was also an argument advanced against the interpretation urged by the plaintiff by virtue of the enactment of the Law Reform (Ipp Recommendations) Act 2004 (SA) and the consequent amendment of the Limitation of Actions Act to include a new s45A. Section 45A is entitled “Special provision regarding children” and provides, inter alia, that:
“45A (1) If —
(a) a child (the plaintiff) suffers personal injury; and
(b) the time for bringing an action for damages is extended by this Act to more than 6 years from the date of the incident out of which the injury arose (the relevant date),
notice of an intended action must be given within 6 years after the relevant date by, or on behalf of, the child to the person or persons alleged to be liable in damages (the defendant).
…
(5) The defendant may, by written notice to the plaintiff (or, if the plaintiff is still a child, the plaintiff’s parent or guardian) require the plaintiff, within 6 months after the date of the notice, to bring an action so that the claim may be judicially determined.
(6) In any such action, the court may, if it thinks it appropriate, exercise its power to make a determination of liability and adjourn final assessment of damages until a later date…”
If this provision, which came into operation on 1 May 2004, applied to this action, it would provide a clear mechanism for achieving the relief sought by the plaintiff. It is not however available to this plaintiff. It may be some indication of the intention of Parliament in dealing with the topic generally.
I asked counsel whether there was any assistance from the second reading speech when s30B(1) was enacted, and I was provided with the following information. The Minister in the second reading speech on 10 November 1966, (Hansard, at 2953) stated that:
“The object of the new section is to enable the court to decide as to liability and make an interim assessment of the immediate and ascertainable damages, in due course assessing general damages in light of such evidence as might be forthcoming later.”
The second reading speech sets out in some detail the issues which led to the introduction of the relevant section, and in particular refers to the delay in taking matters to trial because “medical evidence cannot be provided on which one could base an effective assessment of claim for a final assessment of damages”.
This delay is identified as resulting in:
“people who have claims often live on Commonwealth sickness benefits and face being pursued for medical expenses, for out-of-pocket expenses, and sometimes for hospital treatment when they do not have the money to pay. This means that some people who should be receiving damages are living in penury and under stress merely because their claims cannot be effectively formulated to a final stage.”
These extracts from Hansard tend to support the construction urged by the respondent.
In my view, the present attempt to use s30B(1) in the way set out in the statement of claim is misguided. On simple principles of statutory interpretation, I find that it was never the intention of the legislature that such a result could be contemplated. This is also made quite clear in my view from the excerpts from the second reading speech referred to earlier.
In my view, it is not in the interests of an injured child, or anyone under a disability, to force their hand when they have made no claim and where the law entitles them to take their time within the limitation period specified.
Therefore, the application is dismissed and the plaintiff should pay the costs of the defendant.