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Representing Children in Personal Injury Cases

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Representing Children in Personal Injury Cases

By:

Posted June 8, 2021

Children are more susceptible to certain injuries than adults.  Perhaps, most significantly, children are at risk of being seriously injured in a motor vehicle accident given their smaller size and developing bodies.

Pursuing a Claim on Behalf of a Child

A child under the age of 18 cannot file a lawsuit on his or her own behalf. Instead, a parent, legal guardian, or some other adult, must assume the responsibility to file a lawsuit on the child’s behalf. If there are no suitable adults available, or willing, then the Office of the Public Guardian and Trustee will assume the responsibility to file a lawsuit on the child’s behalf. The person who assumes this role becomes the child’s “Litigation Guardian” for purposes of instituting the lawsuit and instructing the lawyer handling it.

What Damages Are Recoverable

The damages that may be available for a case brought for the benefit of a child include:

  • Medical expenses for treatment of the injuries;
  • Rehabilitation costs for returning the child to their maximum level of functioning;
  • Attendant care costs if the child cannot be left unattended as a result of the injuries and resulting limitations;
  • The cost of any needed future medical, rehabilitation, or attendant care; and
  • Compensation for the loss of future income if the accident will have an effect on the child’s ability to earn a living.

In addition, there may be an award of damages to compensate the child for pain and suffering and the loss of enjoyment of life.

What Is Done With the Money

If the Litigation Guardian recovers a settlement or judgment on the child’s behalf, the funds will be protected by being held in a trust for the benefit of the child.  Some of the funds may be used to purchase a tax free annuity called a Structured Settlement that will make periodic payments which can be used to pay for future care or to replace lost income. All of the funds will be under the management of a Guardian of Property who will need to prepare a Management Plan that demonstrates how all of the funds will be used for the child’s benefit.

Court Approval of Any Settlement

In Ontario, a settlement which has been negotiated for the benefit of a child must be approved by a judge of the Superior Court of Justice. The Litigation Guardian and the child’s lawyer must file detailed affidavits setting out a summary of the case and the proposed settlement. Details of the Management Plan proposed by the Guardian of Property will also be included in the affidavits. The affidavits must contain sufficient details to allow the judge to determine whether or not the proposed settlement and Management Plan are in the best interests of the child. Only settlements that meet this test will be approved by the court.

Statute of Limitation

There are strict time limitations which must be followed when filing a personal injury claim. The Statute of Limitations can be different depending on the type of claim.  If the injured person is under the age of 18, the limitation period will not begin to run until their 18th birthday.

Even though the limitation period may not expire for many years, it is advisable to consult an experienced personal injury lawyer as soon after the injury as possible. It may be important to collect evidence from eyewitnesses regarding how the injury occurred. This type of evidence may not be available many years later when it is decided to start a lawsuit.

This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

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