A child can sue for damages but the court action must be brought by an eligible person, as litigation guardian for the child. A litigation guardian may initiate an action for a child if a guardian certificate is filed immediately after filing the application [Uniform Civil Rules 2020 rule 23.8(2). The statement of claim or supporting affidavit brought by a litigation guardian must disclose the child’s date of birth [r 23.8 (3)].
A claim can be lodged at any time before the child turns 21 years [Limitation of Actions Act 1936 (SA) s 45]. Where a child suffers personal injury, notice of an intended action must be given within 6 years of the relevant date of injury by, or on behalf of the child, to the person/s alleged to be liable in damages [s 45A].
Any compensation awarded to a child is held in trust, usually by the Public Trustee, until a child turns 18 years. However, a court can order funds to be released earlier if it is in the best interests of the child (for example, if the child needs the money to pay for medical or education expenses).
If a child is sued, the action may only be instituted against them by naming both the child and a litigation guardian for the child as a respondent or interested party. The applicant must also file a guardian certificate at the same time. [See Uniform Civil Rules 2020 rule 23.6 and 23.9]. No further steps may be taken in the proceeding until a litigation guardian is appointed.
A child is automatically deemed to be under a legal incapacity, until they are 18 years of age.
The following persons are eligible to be a litigation guardian for a child:
However, a person who has, or would have, an adverse interest in the proceeding is not eligible to be a litigation guardian for the child [r 23.7(2)(b)].
Where a case in which either the applicant or the respondent is a child is settled out of court, the settlement must be approved by the court [Uniform Civil Rules 2020 rule 134.2].
Usually, this means that the written opinion of counsel must be given to the court explaining that the settlement is for the benefit of the child, having regard to all of the evidence.
Victims of crime
A child, like any other victim of crime, can apply for compensation for injury caused by a criminal offence. See Victims of Crime.