Who’s at fault?
Our tort system is based on fault. To recover money in a personal injury lawsuit, a person must have injuries caused by an accident, and those injuries must have been caused at least in part by someone else’s negligence.
This isn’t usually a problem where the child (person under 19, the age of majority) is injured as a passenger in a vehicle. But how about a child who runs out onto the street or does some other dangerous thing and gets injured? Are they to blame and therefore can’t recover in court?
Thankfully, the courts recognize that children are not mini-adults. In one New Brunswick decision, for example, the judge wrote: “It is a notorious and agonizing fact that safety lessons and the need for protection are quickly forgotten by young children whose minds are momentarily distracted.”
There’s a fairly direct correlation between the age of the child and the latitude that the law allows them. In general, children are only held liable for their actions if they’re six years and older. Even at six, however, children will only be expected to act as six-year-olds, not as nine-year-olds. The threshold of responsibility is set relatively low.
Conversely, the law imposes a high degree of responsibility on drivers who are driving in the vicinity of children. If a driver is on a road where children can be seen or in an area where they’re likely to be found (such as near a park or school) the driver must make allowance for the possibility that children will act and react in unexpected ways (such as darting out into the road to chase a ball). The driver is expected to slow down and observe the child’s appearance. Do they look confused? Impatient? Excited? It’s up to the driver to anticipate what the child might do next, and to err on the side of caution.
A plaintiff in a lawsuit can’t keep coming back to the court for more money as his or her injury-related losses change over the years. It’s therefore critical that both present and future losses be predicted and claimed for.
Where the plaintiff is a child, this can present a tremendous challenge.
Why? Because children are in a constant process of development, physically, emotionally, socially and intellectually. The impact of a child’s brain injury, for example, can become far more significant when they reach an age where the area of brain affected would normally develop. Physical handicaps may be a far greater issue for a teen than a child. There may be a wide range of considerations such as how injuries delay the completion of education; rule out a promising career in sports; or affect self-esteem and, consequently, income-earning ability. All of these factors can interact with each other and the injuries to produce a very complex and evolving picture.
Recently, the courts have allowed some children’s claims to be split so that liability (who’s responsible) can be tried first, and the damages at a later date. This allows rehabilitation specialists to work with the child, experts to review the child’s progress over time, and lawyers to compile the evidence necessary to credibly estimate future losses.
But there’s still the question: How does a lawyer arrive at this estimation?
Basically, the lawyer must figure out a child’s…
Pre-accident potential – How the child would have fared if the accident hadn’t happened. Evidence for this comes mainly from the child’s parents, siblings and significant adults in their lives (such as teachers). A good teacher who viewed the child as possessing great potential can be a critically important piece of the puzzle. The child’s birth records, any pre-accident testing, and evidence of any pre-accident problems or disabilities will be looked at. Experts may also rely on national or provincial statistics and trends to project the child’s future.
Post-accident potential – How the child will now fare as a result of the accident. The same considerations listed above apply, but the analysis must also consider the nature and extent of the child’s injury. With very serious injuries where the potential for recovery is very limited, the task may be relatively straightforward. With more subtle injuries, a good assessment cannot be conducted without close attention to the details of a child’s current life. It’s critical to call in experienced professionals who can interpret those details with insight and wisdom.
The difference between the pre- and post-accident potentials will constitute the extent of the child’s losses as a result of the accident.
How well these losses are estimated, documented, and proven will largely determine the child’s recovery in court and how financially secure they will be for the rest of their lives.
The Public Guardian and Trustee
Before any child’s claim can be finalized, the law requires the settlement to be reviewed by the Public Guardian and Trustee to ensure that it is fair and reasonable.
This usually involves sending all of the documentation describing the accident and the child’s injuries, as well as the medical and economic reports generated by both plaintiff and defence counsel, to the Public Guardian and Trustee’s office. Where claims exceed $50,000, the courts must also review and approve the settlement.
The approval of a child’s settlement is by no means automatic. The documents are scrutinized and questions may be asked about issues raised in the documentation. After settlement or trial, a child’s legal guardian or the Public Guardian and Trustee will be appointed trustee to manage the child’s damage award. Often the funds are structured to be paid out in certain sums each month. Where the Public Trustee is responsible for managing the child’s funds, decisions as to how those funds should be spent are made in consultation with the child’s legal guardian. Under the Infants Act, the Public Guardian and Trustee has a broad mandate to spend these funds for the “maintenance, education and benefit” of the child, guided as always by what is in the child’s best interest.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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