How are Personal Injury Claims for Children Different?
Navigating a personal injury claim can be complicated. It can be especially complicated when the injured party is a child. The key differences when proceeding with a personal injury claim when the injured party is a child include the litigation representative, the limitation period, the involvement of the Public Trustee, and negligence standards.
A parent or guardian must sue on behalf of a minor in Alberta
In Alberta, an injured person under the age of 18 cannot bring an action for their personal injury on their own. As a result, an adult parent or guardian will need to act as a litigation representative to the injured child. Litigation representatives look after the interests of the minor whom they represent and assist in guiding their lawyer.
What is the statute of limitation period for children?
For adults in Alberta, the statute of limitation for injury claims is two years. That means an adult must claim for damages within two years of their accident or forego their right.
In the case of children, the Limitations Act, RSA 2000, C. L-12, allows two years from the date of the child’s eighteenth birthday. This, in part, allows claims for injuries that only become apparent after the child is considered to have reached adulthood. A child in Alberta, therefore, has until their twentieth birthday to commence legal action regardless of when the childhood injuries occurred.
Who is the Public Trustee and when do they need to get involved?
The Public Trustee is appointed by the Alberta government to protect and manage the property and financial interests of minors. The Public Trustee is automatically involved and responsible for handling settlements funds of a minor if the settlement funds exceed $25,000.
Once the Public Trustee has confirmed the settlement amount, they become responsible for managing the funds until the child reaches the age of majority. The money is held in trust during this time and paid out to the child on their eighteenth birthday. If the child requires access to these funds for a good reason before turning eighteen (such as for special healthcare needs), this can usually be arranged.
If the settlement funds awarded to the minor are less than $25,000 then a parent or guardian may manage the funds.
Standards of negligence
Negligence standards for adults and children differ. The failure of an injured party to take reasonable care for their own safety which contributes to the accident, or their loss, may result in finding of contributory negligence. A finding of contributory negligence can reduce the amount of compensation awarded to the injured party.
To assess whether the injured party has failed to reasonably care for their own safety, a standard of care must be established. For adults, the standard of care is objective, and asks what a reasonable person would have done in the same situation. The standard is not perfection; however, the injured party must act as a reasonably careful person looking out for one’s own safety. For instance, when driving, the reasonable person would abide by the rules of the road. Therefore, an adult who is speeding or otherwise failing to adhere to traffic laws would not be exercising the requisite standard of care as a driver.
Conversely, the negligence standard for a child takes subjective factors in assessing whether their conduct has met the standard of care expected of them. We ask what a child of similar age, intelligence, and experience would have done in the same situation.
Notably, if a child is engaged in an adult activity, such as driving a dirt bike, courts are more likely to apply the adult standard of negligence and care.
Do you need help with a child’s injury claim in Calgary?
Personal injury matters involving children face additional complexities in comparison to those with adults. It can be more difficult to assess injuries, their long-term effects, and the potential intervention of the Public Trustee might also complicate matters.
It is important to discuss your situation with an experienced personal injury lawyer before you consider signing any settlement.
A personal injury lawyer from Vogel LLP in Calgary can help you assess your legal options. Book a free consultation and we will be happy to evaluate your case and answer your questions.