Claims on behalf of Children

Regrettably we far too often see children injured in circumstances which could have been avoided. Injuries arising as a result of someone else’s neglect.

Such injuries suffered by children can give rise to an entitlement to claim compensation.
The law does not permit children to prosecute any claims on their own behalf. Claims on behalf of children are usually brought 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 claim in their own 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, how can a child who does not have
standing to bring a claim still have time run against them?

The circumstances of the accident will determine the nature of the claim 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 in circumstances where the owner or occupier of the premises has breached their duty of care which has resulted in the injury, the child can bring proceedings pursuant to the provisions of the Civil Liability Act 2002. The proceedings would be brought in a court of competent jurisdiction which would invariably 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 time then they will be statute barred and thereafter proceedings may not be able to be brought.

Given that the child does not have standing to bring proceedings in their own name then 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 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 attains their majority at 18 years of age. The funds are however available for the benefit of the child in order to cater for the child’s medical treatment or educational requirements.

In the event that the child’s 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 beheld on the child’s behalf until they attain their majority. 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

Proceedings brought on behalf of a child as 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.
That is, the same time limits apply 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 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 which 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 entitlements to prosecute a claim for their injuries under the Motor Accident Injuries Act 2017 if the accident occurred after 1 December 2017. For claims arising from motor-vehicle excellence prior to 1 December 2007, the claim is governed by the provisions of the Motor Accident Compensation Act 1999.

If the child can establish that the injuries sustained are more than 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 accidents scheme there are numerous and owner is time limits that must be complied with. This includes the reporting of the accident to the police, lodgement of claim forms and commencement of proceedings.