Claims on behalf of Children

Overview

Claims on behalf of Children

Far too often, we see children injured in circumstances that could have been avoided. Injuries can arise as a result of someone else’s negligence,leading to the unfortunate necessity for a parent or guardian to make a claim on behalf of their child for injury sustained in an accident.

Such injuries suffered by children can give rise to an entitlement to compensation for the injury sustained by the child.

The law does not permit children to prosecute personal injury claims on their own behalf. Claims on behalf of children are usually made by their parents or carers who stand in as a “tutor” in the proceedings.

Despite the fact that the law does not recognise children as having the necessary standing to bring a personal injury compensation claim in their name, it does still impose upon them the time limits referable to the making of a claim. This is an anomaly that exists within the legislation that, despite numerous representations, the Government has failed to correct. That is, the law expects a child to adhere to the same time limits imposed on adults who wish to make a claim, despite the fact that a child cannot legally bring forward a claim on its own behalf.

Different Types of Compensation Claims for Children

The circumstances of the accident will determine the nature of the personal injury compensation claims that can be brought on behalf of the child. They are numerous and varied.

Public Liability Claims

If your child has been injured on private or public property, the child can bring proceedings pursuant to the provisions of the Civil Liability Act 2002. This is, however, only if the owner or occupier of the premises has breached their duty of care, resulting in the injury to the child. The proceedings would be brought in a court of competent jurisdiction which would be either the District or Supreme Court.

There is only three years from the date of the accident or when the cause of action became discoverable in which to bring proceedings. If proceedings are not brought within the limitations period, then they will be statute-barred, and after that, proceedings may not be able to be brought.

Given that the child does not have standing to bring proceedings in their own name, usually a parent or carer will stand in as the tutor in the proceedings. The tutor brings the proceedings in the child’s name. The tutor is, technically speaking, the client who provides the instructions referable to the prosecution of the claim.

The tutor is also responsible for the legal costs of the proceedings. In the unlikely event that a claim brought on behalf of a child is unsuccessful, then the tutor can also be held personally liable for the costs of the successful defendant. Upon the successful conclusion of public liability proceedings brought on behalf of an infant child, the proceeds of the claim are invested, invariably with the Public Trustee, until the child reaches 18 years of age. The funds are, however, available for the benefit of the child in order to cater to the child’s medical treatment of the child’s injuries or educational requirements.

In the event that the child’s injury claim is resolved by way of negotiation with the Defendant, the settlement requires the approval of the Court before it becomes binding upon the parties. If the Court is of the view that the settlement is fair and proper in the circumstances, then the funds will be paid to a Trustee to be held on the child’s behalf until they reach the age of 18. In the event that there is any reason that the Trustee cannot give a discharge, for example, if the child is incapable of managing their own affairs beyond 18 years of age, then the funds will remain with the Trustee for the balance of the child’s natural life.

Medical Negligence Claims

A personal injury claim made on behalf of a child against a healthcare provider, hospital, specialist, general practitioner or other such person will follow exactly the same course as a public liability claim referred to above. Such claims are also prosecuted under the Civil Liability Act 2002.

The same time limits apply in these cases; being three years from the date of injury or the date that the cause of action was discoverable. Proceedings are brought in the name of the child by a tutor. The proceeds of the claim, upon the successful conclusion of the proceedings, are invested, usually with the Public Trustee, until the child attains their majority at 18 years of age.

If there is any reason that the Trustee cannot give a discharge for the release of the funds when the child attains 18 years of age, then the funds will be retained in trust on the child’s behalf. For example, if the child has suffered a brain injury or some other injury that has impacted upon the child’s ability to manage their own affairs, then a Trustee will remain in place for the balance of the child’s natural life so as to manage their financial affairs.

In the event that the child’s claim is resolved by way of negotiation with the Defendant, the resolution of the claim will require the approval of the Court before it becomes binding upon the parties. The court needs to be satisfied that the proposed settlement is fair and proper in the circumstances.

Motor Accident Claims

If the child has been injured as a result of their involvement in a motor vehicle accident, then they have an entitlement to prosecute a claim for their injuries under the Motor Accident Injuries Act 2017, for any accidents occurred on or after 1 December 2017. For claims arising from motor vehicle accidents prior to 1 December 2017, the claim is governed by the provisions of the Motor Accident Compensation Act 1999.

If it can be established that the injuries sustained by the child are more than a “threshold injury” (previously known as a minor injury), as defined by the legislation, then a claim can be brought on the child’s behalf to have the entitlements of the child determined by a Judge of the District Court.

Again, the time limits imposed under the legislation apply also to children’s claims. Under the motor accident scheme, numerous time limits must be complied with. This includes the reporting of the accident to the police, lodging of claim forms and commencement of proceedings.