South Australian Consolidated Acts South Australian Consolidated Acts30B—Power to make interim assessment of damages
(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 or 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:
Provided, however, that where the declaratory judgment has been entered in an
action for damages for personal injury, such payment or payments shall not
include an allowance for pain or suffering or for bodily or mental harm (as
distinct from pecuniary loss resulting therefrom) except where serious and
continuing illness or disability results from the injury or except that, where
the party entitled to recover damages is incapacitated or partially
incapacitated for employment and being in part responsible for his injury is
not entitled to recover the full amount of his present or continuing loss of
earnings, or of any hospital, medical or other expenses resulting from his
injury, the court may order payment or payments not to exceed such loss of
earnings and expenses and such payment or payments may be derived either
wholly or in part from any damages to which the party entitled to recover
damages has, but for the operation of this proviso, established a present and
immediate right or except where the judge is of opinion that there are special
circumstances by reason of which this proviso should not apply.
(3) Any order for
payment of moneys on account of damages made hereunder may be enforced as a
judgment of the court.
(4) Where the court
adjourns assessment of damages under this section, it may order the party held
liable to make such payment into court or to give such security for payment of
damages when finally assessed as it deems just.
(5) When damages are
finally assessed credit shall be given in the final assessment for all
payments which have been made under this section and the final judgment shall
state the full amount of damages, the total of all amounts already paid
pursuant to this section and the amount of damages then remaining payable, and
judgment shall be entered for the last-named amount.
(6) Where the court
adjourns assessment of damages under this section, any party to the
proceedings may apply to any judge of the court at any time and from time to
time—
(a) for
an order that the court proceed to final assessment of the damages; or
(b) for
the variation or termination of any order which may have been made for the
making of periodic payments.
On the hearing of any such application the judge shall make such order as he
considers just: Provided that, in an action for damages for personal injury,
upon an application for an order that the court proceed to final assessment of
damages, the Judge to whom such application is made shall not refuse such
order if the medical condition of the party entitled to recover damages is
such that neither substantial improvement nor substantial deterioration
thereof is likely to occur or if a period of four years or more has expired
since the date of the declaratory judgment unless the judge is of opinion that
there are special circumstances by reason of which such assessment should not
then be made.
(7) If it appears to
the court that a person in whose favour declaratory judgment has been entered
has without reasonable cause failed to undertake such reasonable medical or
remedial treatment as his case might have required or require, it shall not
award damages for such disability, pain or suffering as would have been
remedied but for such failure.
(8) If at any time it
appears to a judge that a person in whose favour declaratory judgment has been
entered and who is incapacitated or partially incapacitated for employment, is
not sincerely or with the diligence which should be expected of him in the
circumstances of his case, attempting to rehabilitate himself for employment
any payment or payments under subsection (2) of this section shall not
include by way of allowance for loss of earnings a sum in excess of
seventy-five per centum of such person's loss of earnings.
(9) —
(a)
Notwithstanding anything in the Survival of Causes of Action Act 1940 ,
when damages are finally assessed under this section for the benefit of the
estate of a deceased person where the deceased person died after action
brought and declaratory judgment has been entered in favour of such person,
the damages finally assessed may include such damages in respect of any of the
matters referred to in section 3 of that Act as the court deems proper.
(b)
Where a party dies after declaratory judgment has been entered in his favour
but before final assessment of his damages in circumstances which would have
entitled any person to recover damages, solatium or expenses by action
pursuant to Part 2 of the Wrongs Act 1936 , it shall be lawful for the
executor or administrator of the deceased to proceed in the same action for
the recovery of such damages, solatium or expenses for the benefit of such
person notwithstanding the declaratory judgment or that the deceased has
received moneys thereunder, provided, however, that in any such proceedings
all moneys paid to the deceased pursuant to the declaratory judgment in excess
of any actual and subsisting pecuniary loss resulting to him from the wrongful
act of the party held liable shall be deemed to have been paid towards
satisfaction of the damages, solatium or expenses awarded pursuant to the
Wrongs Act 1936 and no further damages shall be payable in respect of the
injury sustained by the deceased. In any proceedings hereunder, the
declaratory judgment and any finding of fact made in the course of proceedings
consequent thereupon shall enure as between the party held liable and the
executor or administrator of the deceased.
(c)
Where a party dies in the circumstances referred to in the preceding paragraph
of this subsection except that the death of the deceased is not wholly
attributable to the personal injury, the subject of the declaratory judgment,
but was accelerated thereby, it shall be lawful for proceedings to be taken
and for the court to assess damages, solatium or expenses as in the preceding
paragraph but such damages, solatium or expenses shall be proportioned to the
injury to the person for whom and for whose benefit the proceedings are taken
resulting from such acceleration of death.
(d) The
court may, if the justice of a case so requires, assess damages under
paragraph (a) of this subsection notwithstanding the commencement or
prosecution of proceedings under paragraph (b) or (c) of this subsection
and the damages so assessed shall be for the benefit of the estate of the
deceased and no damages shall be awarded under paragraph (b) or (c) of
this subsection.
(10) In the exercise
of the powers conferred by this section the court shall have regard to the
facts and circumstances of the particular case, as they exist from time to
time, and any allowance, or the final assessment, as the case may be, shall be
such as to the court may seem just and reasonable as compensation to the
person actually injured or to his or her dependants as the case may be.