Personal Injury Claims: Can Parents File on Behalf of their Child?
It’s many people’s worst nightmare. Your child went to the playground or went to the pool with friends, and you get a phone call. They’ve been injured. You rush to the hospital to make sure they’re safe, but what now? You start to wonder, is this going to impact my child’s future?
When a tragic event happens to their child, parents are left having to plan for the immediate and long-term care of their children. This often involves wondering whether you can bring a personal injury claim on your child’s behalf.
Can I Bring a Claim on my Child’s Behalf?
In short, yes you can bring a claim on your child’s behalf.
Children under 19 years of age in Nova Scotia are not able to file a personal injury claim, but someone else can file a personal injury claim on their behalf. This could be a parent or guardian of the child.
The person who files a personal injury claim on a child’s behalf is called a litigation guardian.
What is a Litigation Guardian and What are their Duties?
A litigation guardian is the person who makes all decisions regarding a personal injury claim on a child’s behalf.
Litigation guardians have many duties such as:
- Consulting with the personal injury lawyer representing the child and giving them instructions; and
- Making decisions about what to do based on what a reasonable person would do in similar circumstances.
To become a litigation guardian, you must file a litigation guardian’s statement. This must include:
- A description of your relationship to the child;
- Confirmation that you have appointed a lawyer for the child;
- And an acknowledgement that you may be responsible for paying money if you abuse the court’s processes.
Are there Special Considerations for Older Children?
Litigation guardians have special considerations when dealing with children who are over 16 years old. They must:
- Ensure that they have the consent of the child to be their litigation guardian;
- Keep the child informed about the proceedings;
- Consult the child before making decisions that affect them; and
- Encourage the child to consult directly with their lawyer.
When Do I Need to Bring a Personal Injury Claim By?
Children have a three-year period in which to file a personal legal claim, but this period only begins when they reach the province’s age of majority. In Nova Scotia, that is 19. This means that a child injured at any age below 19 will have from the day they turn 19 plus three extra years to file a legal claim.
So long as your child has not yet neared the age of 19, you do not need to worry about being cut off by a deadline.
In fact, because some impacts of the accident will not become apparent until years after your child’s accident, you may want to wait to bring a claim on your child’s behalf. However, if your child needs money immediately for their wellbeing, you may want to consider speaking to a personal injury lawyer about weighing your options.
How Can My Child Receive Compensation?
We know that no amount of money can make up for what was done to your child, but we can help you with your concerns going forward. Some concerns may be an inability to pay for things such as rehabilitation or an inability to afford a caretaker for your child while you are at work.
Compensation can generally be received through settlement or going to court.
Personal Injury Settlements
A settlement is an alternative to going to court. Generally, the parties on both sides of an action will meet and they and their lawyers will discuss a possible agreement. When both sides have signed a settlement agreement, it is usually legally binding.
Settlements that are entered into on behalf of a child, however, will not be legally binding until the settlement has been approved by a court. If a judge believes that the agreed settlement is not in the child’s best interest, it may be rejected. You should be careful not to do or say anything which may impact the settlement agreement until it is approved by the court.
When settlement funds are awarded, the money is typically either held by the court until the child has become an adult, or it should be placed into conservative investments such as a high interest savings account. When money is held by the court, it can be taken out for special circumstances such as the child needing money for rehabilitation or other services.
Going to Court.
If your child’s claim ends up going to court, there are some things you must keep in mind. If the case goes to court your child may be required to give evidence. It is increasingly common for children to be called as witnesses in court.
If your child is needed as a witness, you should ensure that your child is prepared adequately for this. You should try to explain the court system in simple terms and prepare your child for what testifying will be like. If you are uncertain about this information, you may ask the child’s lawyer to do this for you.
Consider asking the lawyer about the use of objects in providing testimony. A child may find it easier to describe a situation through the use of toys or pointing to locations on a map.
It is important to inform your child that they do not need to answer every question that is asked of them. Be sure that they are aware that “I don’t know” is an answer that is appropriate to give. You should aim to make your child aware that they should not be making up information just to provide an answer to a question.
What Could I Overlook When Bringing a Personal Injury Claim on Behalf of My Child?
When dealing with a personal injury claim for a child, the person filing the claim should be aware that legal claims involving children can be particularly complex. In some cases, the full extent of the harm that has been done to the child will not be recognizable until years after the accident has occurred.
Reaching a settlement agreement too soon may mean that the child’s injuries are not fully compensated for. Always be aware that what you are claiming is not limited to the current injuries that your child is experiencing.
Lawyers can draft standstill agreements to extend deadlines until the full extent of your child’s injuries become apparent. This can help to ensure that your child’s compensation is not lower than it should be.
You may also want to consider what the insurance company will argue. Some insurance companies will try to argue that your child’s injuries are not as serious as what has been diagnosed.
If you can think of arguments that the other side will make, you may want to consider what you or your child can say or do to counter these arguments:
- This may mean having your child visit their family doctor to note specific injuries that you want to have recorded.
- You could also consider the location where the accident happened and what would have been possible in the circumstances.
How Can NOVA Injury Law Help?
At NOVA Injury Law we will act on your child’s behalf to advocate them in their claim against. Our legal team will help you to navigate through the complicated law in Nova Scotia, New Brunswick and PEI around personal injury claims regarding children and help ensure that injuries and damages are accounted for.
The whole idea behind an injury claim is to compensate injury victims for their losses – and this is a wide-ranging task with unique facts in each case. To learn more about NOVA Injury Law’s approach to protecting injury victims’ rights, contact us now to book your free Case Review. During the free Case Review process, we will give you our honest opinion about your case, how much your child’s claim might be worth, and what you should consider as your next steps.
If you are in need of legal advice or representation for your child’s personal injury claim in Halifax, Nova Scotia, or anywhere in Atlantic Canada, our personal injury lawyers are here to help. Contact us today and tell us more about your claim – we are here to help!