Complexities of Litigating Cases Involving Children
What to do when your child has been injured by the negligent actions of another person
Written by: Adam J. Karakolis, Thomson Rogers, www.trlaw.com
As the parent or guardian of an injured child, your focus is on their full recovery and the services they require. These medical and rehabilitation services are expensive, and when there is an at-fault party, you can consider a lawsuit to seek damages to help pay for these services. Cases involving children raise challenges that differ from cases involving adults for a variety of reasons. Four of these significant differences include:
- Damages take longer to crystalize
- Income loss is more uncertain and thus harder to calculate
- Your child needs a litigation guardian to commence a claim
- The Court must approve your child’s settlement
In this article, we briefly discuss the differences.
Damages take longer to crystalize
Damages are the forms of compensation a Court may order a defendant to pay to compensate your child for their injuries. Damages can include, among other things, compensation for pain and suffering, rehabilitation expenses, personal support worker care, and income losses.
In cases involving children, it may take years before the parties can evaluate the extent and future implications of the child’s injuries. Because children develop in unique ways, serious injuries may resolve or worsen unexpectedly and be complicated by environmental factors. The potential for significant changes and development makes it difficult to resolve claims until the child’s development over their adolescent years is well understood.
As an example, if a 2-month-old baby injures the part of their brain responsible for speech, that injury’s effect may not appear until the baby is 1–2 years old, or later when speech typically develops. The full extent of this impairment may not be known for many years thereafter.
Or, for example, when a teenager suffers a serious injury, that young person may live with their parents, who provide supervision and perform most of the housework. In this situation, it may not be clear how the injury will limit the child from performing housekeeping tasks or managing independently until they leave the home years later.
As a result of this added uncertainty and time required to evaluate the course of a child’s development, cases involving children often take longer to settle or reach trial to allow time for the damages to crystallize.
Income loss is harder to calculate
When assessing damages, Courts will determine whether your child’s injury will affect their ability to earn income in the future on the basis of a real and substantial risk threshold. The future ability of your child to work in certain jobs, to work full time, or to work at all, are relevant. A Court can award money to compensate your child if they lose all or part of their ability to work or become disadvantaged in the workplace.
With adults, Courts typically look to the adult’s past work history to determine income loss. For example, Courts will look at past reported income, past jobs, education, future plans, and promotional opportunities foregone to determine what an adult would have earned if they were not injured.
Because children do not usually have work histories, it can be far more difficult for the parties to assess income loss claims, and significant time is often required for the parties to understand the impact that injuries will have on a child’s future income potential. This factor may also delay the length of time it takes for claims involving children to resolve.
Your child needs a litigation guardian
The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”)¸ require a litigation guardian to begin a lawsuit and instruct a lawyer on behalf of a child under 18 years of age. Subject to certain exceptions, a litigation guardian can be anyone who is not a minor or mentally incapable (as defined by the Rules).
A litigation guardian must meet other requirements, found at r. 7.02(2). Most often, the child’s parent acts as the litigation guardian. A litigation guardian makes decisions for the child in their lawsuit. They are also a different person than the child’s lawyer, and, in fact, must hire a lawyer to represent the child. The litigation guardian also instructs the lawyer on the child’s behalf. Careful consideration is required to ensure that you appoint an appropriate litigation guardian for your child.
The Court must approve your child’s settlement
Personal injury cases often settle before going to trial. However, the Court must approve any settlement in a child’s case. The approval process involves affidavits from the child’s litigation guardian and lawyer, filed with the Court. These affidavits must inform the Court about the facts that support the settlement and that it is reasonable and in the child’s best interests. If the child is over the age of 16, the child’s written consent must also be filed. Courts carefully scrutinize affidavits that justify a child’s settlement and will only approve a settlement where it is in the child’s best interests.
Conclusion
As a result of the considerations identified above and others, children are not subject to the standard 2-year limitation period when commencing a claim. In fact, minors, unless represented by a litigation guardian, typically have 2 years from their 18th birthday to commence a claim. Careful deliberation is required when considering the appropriate time to commence a claim.
If your child has a potential personal injury claim, it is important to hire a lawyer with experience acting on behalf of children to ensure that damages are well supported and understood, an appropriate litigation guardian is selected, the claim is commenced at the appropriate time, and any potential settlement is in the child’s best interests so that Court approval can be achieved.
For more information, please see our firm profile: https://trlaw.com/practice-areas/personal-injury-lawyers/child-injury-lawyer-toronto/
About the Author: Adam J. Karakolis | Thomson Rogers
