When a child is injured it is a difficult and worrying time for parents as they try to cope with the challenges of dealing with the injury and the immediate aftermath of the accident. Often, the best we can do as parents is take things one step at a time.
At some stage parents may need to consider if they should make a personal injury claim on behalf of their child.
There are a number of specific elements to consider when it comes to making a personal injury claim on behalf of a child.
A person under the age of 18 is deemed by law to lack capacity to bring a claim in his or her own right and will need to have a ‘Litigation Friend’ appointed to act on their behalf in the claim. The Litigation Friend must be over 18, and is usually the child’s parent, but it can be a different family member or close friend.
The Litigation Friend is the person who instructs the solicitor and submits the claim on the child’s behalf. They will be making important decisions in the claim on behalf of the child, and have a duty to act fairly and competently.
In adult cases, there is a 3 year time limit from the date of the accident in which Court proceedings must be issued so that the person’s right to claim is protected. When a child suffers injury, the three year period does not start until the child reaches the age of 18. As such, they have until their 21st birthday to bring a claim. However, as with any case, the sooner a solicitor is instructed the better, as certain key pieces of evidence such as police documents may be destroyed, and witnesses’ memories may fade with the passage of time.
Timescale to Settlement
If a child suffers a complex injury such as a brain injury, the claim cannot be settled until a reliable prognosis can be made for the future. Sometimes, it will not be until the child has reached early adulthood before such predictions can be made by specialist experts in the claim. Key questions will need to be answered before an award of compensation can be calculated: Will the child ever be capable of work? Will he/she be able to live independently? What sort of care and support might they require in future? The answers to these questions do not emerge in some cases until the child has had the opportunity to, for example, see how he/she gets on at college or in work, to move out of the family home and try living independently etc.
As such, if a child suffers a brain injury at a very young age, it may be many years before the claim can be concluded.
If a case settles while the child is under 18, the settlement will need to be approved by the Court at an Infant Approval Hearing. This ensures that any award of compensation agreed is fair and reasonable, and that settlement is in the child’s best interests.
What if a Parent causes the Injury?
A child can bring a claim even if it was a parent who caused the injury, for example if the child was a passenger in a car which was driven negligently by a parent. In that case, the child would bring the claim against the parent who caused the injury, but it would be his or her insurance company who deals with the claim in practice, and who pays the compensation to the child. In road accident claims, even if there is no insurance policy in place, the claim would still be dealt with by a specialist agency, the Motor Insurers Bureau.
If a parent is a potential Defendant in the case, then he or she cannot also be appointed as Litigation Friend; somebody else would have to act on the child’s behalf.
In most situations in which a parent causes injury to his or her own child, there will be a policy of insurance in place such that it is still feasible for the child to make a claim. If there is not, then this would need special consideration with a solicitor, to advise on whether a claim could/should be brought.
In every case, the best advice when considering bringing a claim on behalf of a child is to consult with an experienced and specialist solicitor who can advise on the right course of action.
This article was produced by Kate Venn
Kate is an associate in Irwin Mitchell’s Sheffield Serious Injury team. She has 18 years’ experience representing clients who have suffered life-changing injuries. Kate’s particular expertise is bringing claims on behalf of seriously injured children.
About Irwin Mitchell
Brain Injury Group member firm Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.
How can Brain Injury Group help?
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