Slattery (BY Next Friend Lowcay) v Brookes

[2006] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

SLATTERY (BY NEXT FRIEND LOWCAY) v BROOKES & ORS

[2006] SASC 137

Reasons of Judge Lunn a Master of the Supreme Court

17 May 2006

PROCEDURE

Plaintiff seeking interim assessment of damages under s 30B of the Supreme Court Act - held under R 75.02 a Master could refer an action for trial on the limited issues of liability and an interim assessment where the plaintiff was not ready for a trial for a final assessment of damages.

SLATTERY (BY NEXT FRIEND LOWCAY) v BROOKES & ORS
[2006] SASC 137

Reasons on Plaintiff’s Application for a trial for an interim assessment.

1. JUDGE LUNN:                   In this action the infant plaintiff by his next friend sues for damages for medical negligence.  The Prayer for Relief in his latest statement of claim is:

   1A declaratory judgment is sought determining the question of liability, together with an order for payment of expenses to the date of such declaratory judgment for a payment on account of damages and for periodic payments thereafter on account of damages to be assessed and for an adjournment of the final assessment of damages.

   2Damages.

   3Costs.

2. By an application (FDN 2) the plaintiff has sought in paragraph 3 the following order:

   3.1the plaintiff’s Application for a declaratory judgment finally determining the question of liability between the parties;

   3.2the plaintiff’s Application for an order pursuant to Section 30B(2) of the Supreme Court Act 1935 (as amended) that the party held liable make payments on account of the damages to be assessed.

   The effect of the application is to have the action referred for a trial limited to the issues of liability and an interim assessment of damages pursuant to s 30B of the Supreme Court Act 1935. 

3. The first and third defendants oppose the order. They did not file any affidavits in opposition, but relied upon a submission that the power conferred by s 30B could only be invoked by a trial Judge who was seized of a trial of the whole of the plaintiff’s claim. They contended this was the proper interpretation of s 30B(1) which states:

   (1)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 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.

   (2)It shall be lawful for the court when entering declaratory judgment and for any judge of the court at any time or times thereafter –

   (a)     to make orders that the party held liable make such payment or payments on account of the damages to be assessed as to the court seems just;  and

   (b)     in addition to any such order of in lieu thereof, to order that the party held liable make periodic payments to the other party on account of the damages to be assessed during a stated period or until further order: …..

4. There is no reported authority on the point.  It has been the practice of this Court and the District Court to make orders of the nature sought by the plaintiff, but as far as I am aware the power of the Court to do so has not been previously challenged.

5. R 75.02 empowers the Court at any time to order trials on issues of fact and/or law. I consider that this Rule confers power to order that the issue of fact and law sought in paragraph 1 of the Prayer for Relief be determined prior to the other relief sought in the statement of claim. This does not fetter the discretion of the trial Judge to refuse to make an interim assessment of damages if he or she considers that the power conferred by s 30B should not be exercised in the circumstances of the trial. If that was to occur, the plaintiff may well be penalised in costs for having put the defendants to the expense of a trial on interim damages when it was not justified.

6. If the contention of the first and third defendants was correct, plaintiffs could only obtain an interim assessment of damages under s 30B where they had obtained a referral for trial under R 74A.04 on the basis that the whole action was ready for trial. If the plaintiff could not give an assurance that the matter was ready for trial on all aspects of damages because the plaintiff’s medical condition had not stabilised, plaintiffs could be precluded from obtaining interim assessments under s 30B where they would otherwise be entitled to them.

7. It is in the Court’s discretion whether any order should be made under R 75.02 for an action to proceed to trial on less than the plaintiff’s full claim for relief.  Here the events which gave rise to any liability of the defendants occurred between 1990 and 1992.  The 14-16 years which have already elapsed since those events are likely to affect the scope and quality of the evidence which can be now adduced about them.  The former first defendant, who would have been an important witness, died in 2004.  Every further year that goes by before the question of liability is brought to trial is likely to dim further the memories of witnesses and dissipate relevant documents.  As a trial on liability as soon as practicable is now in the interests of justice it is not unreasonable that the plaintiff should also be entitled at the same trial to seek an interim assessment of damages.

8. Accordingly, I am prepared to make the order that the action be referred to trial only on paragraph 1 of the Prayer for Relief.  However, I am not prepared to make that order until a proper certificate of readiness has been filed and approved by me under R 74A.04(b).

9. I will hear the parties on what orders should now be made on Wednesday 17 May 2006 at 9.30 am.