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CAR ACCIDENT ADVICE FOR PARENTS – MAKING A PERSONAL INJURY CLAIM FOR YOUR CHILDREN

Mar 14 2017

One of the worst possible scenarios that you – as a parent – could ever imagine has just occurred. You’ve been in an accident, your children were with you and everyone has suffered injuries. You know you have to file a personal injury claim, but you’re not sure about what to do for your children.

Are there age restrictions?
Under BC law, anyone under the age of 19 is considered to be an “infant” and has no legal right to pursue a claim without the involvement of a guardian.

Do standard limitation periods apply?
In BC, personal injury claims for adults must be started within two years of the date of an accident. For infants and children, that limitation period is extended to two years past the child’s 19th birthday.

This longer limitation period is due to a number of factors. For example, it’s often difficult to determine the exact nature of a child’s injury and what the long-term effects might be due to their ongoing development. Some injuries may not show up until months or even years after the event. The severity of an injury must also be considered, especially if it will have a severe emotional and financial impact on the family.

Can my child “pursue” his own personal injury claim?
Minors are not allowed to pursue their own injury claims. All such claims must be brought on their behalf by a parent or designated legal guardian. Once a claim is underway, a minor is represented through an appointee called a litigation guardian. This can be a parent or relative, but not always. If a suitable litigation guardian in not available, the Public Guardian and Trustee may take on this role.

Who determines liability?
As a general rule, when anyone under the age of 16 is injured in an accident, they are unlikely to be held at fault because they would not have been in operation of the vehicle. As the legal guardian of a minor, if you were driving and did not properly install an approved car seat or failed to secure your child using the vehicle’s seat belts, you may be found partially or wholly at fault for the child’s injuries.

Who approves the settlement?
Neither a child or a parent can settle directly with ICBC. The legal authority to settle any personal injury claim on behalf of an infant is vested entirely with Public Guardian and Trustee for settlements of $50,000 or less. If a settlement offer exceeds $50,000, the Trustee makes a recommendation to the Supreme Court as to whether or not it is adequate. The Courts then decides if the settlement should be approved or not. Note, that when a child’s settlement is paid out by ICBC, the funds must be paid into a separate trust account held by Public Guardian and Trustee under that child’s name with the funds intended solely for the education, benefit and care of the child. The account is administered by the Public Guardian and Trustee who is responsible for considering all requests for the release of funds. When the child reaches his or her 19thbirthday, he or she may apply to have what remains paid out to them.

Sources: Campbell Burton & McMullan LLP | Butler & Company Barrister and Solicitor

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