Under the law in British Columbia, a child or person under the age of 19 is considered an “infant.” An infant injured through the negligence of another person can suffer injuries the same as an adult, and, depending on the age of the infant, the type of injuries suffered and the effects of the injuries, an infant can be entitled to compensation for the same reasons as an adult. However, as long as an injured person is under the age of 19, the procedures for resolving the claim through negotiation or through the Courts is different than for an adult, chiefly because of the necessary involvement of the office of the Public Guardian and Trustee of British Columbia.
When an adult agrees to settle his or her claim for a certain amount of money, the adult signs a release agreement and in exchange, receives his or her settlement funds. In the case of an infant’s claim, any settlement must be approved by the Public Guardian and Trustee, and in the case of settlements over $50,000, the Public Trustee reviews the proposed settlement and makes recommendations to the Court as to the appropriateness of the settlement, including any legal fees if the infant has a lawyer, and the Court makes the final decision on the matter.
In support of the proposed settlement, written submissions must be provided to the Public Guardian and Trustee. These submissions must explain the circumstances of the accident, the injuries suffered, whether the infant has ongoing or permanent symptoms and limitations arising out of the injuries, the amount of compensation proposed as well as reasons to justify the proposed compensation, the steps taken in the litigation process if an action has been commenced, any relevant legal issues (such as liability or contributory negligence) that might affect the amount of compensation, and the amount of legal fees proposed.
Accompanying the written submissions to the Public Guardian and Trustee must be any relevant medical or other documentary evidence necessary for the Public Guardian and Trustee to fully consider the merits of the claim and proposed settlement. Once the settlement is approved, the settlement monies are forwarded to the Public Guardian and Trustee’s office where they are held in trust for the infant until he or she attains the age of 19 years. If the Public Guardian and Trustee’s office does not approve the settlement, an application can be made to Court to approve it, although the application is likely to be contested, or the matter is referred back for further negotiation or gathering of evidence or information as the case may require. This process is designed to protect the interests of the infant, and it can provide peace of mind to the infant’s parents in the way of ensuring their child has received a fair settlement.
For more information on the Public Guardian and Trustee’s role in an infant’s personal injury claim, refer to the website of the Public Guardian and Trustee of British Columbia
There are other procedural differences in the handling of claims for infants. Typically, the limitation period within which a legal action must be commenced in personal injury lawsuits is two years from the date of the accident, but for infants, the limitation period is postponed until two years after the infant attains the age of majority (19 years of age). Also, an infant’s legal action must be commenced by a “Litigation Guardian” (typically one of the child’s parents or a legal guardian) who can instruct the lawyer and receive and consider legal advice. A parent who may have been at fault for the child’s injuries is not eligible to act as Litigation Guardian.
Because of the obvious complexities involved in pursuing a claim on behalf of a child, it is a good idea to retain a lawyer to assist with the process, and despite the additional steps the lawyer is required to take in the course of representing an infant, there are no additional legal fees. MacIsaac & Company has represented numerous infants with injuries ranging from mild whiplash type injuries to catastrophic brain injuries. We understand the devastating effect a child’s injuries can have on a family, and we strive to handle these claims with professional integrity and respect and consideration for the family of the injured child.