How to make a personal injury claim for a child

Parenthood and caring for a child can provide some of the most joyous moments in a person’s life

However, being a parent or guardian to a child also comes with responsibility for that child’s life.

As such, when a child is injured, through no fault of their own, it can also lead to a parent or guardian sharing some of this pain. You may experience distress, hurt, anger and/or depression over the situation.

While you can’t change what has happened, there are things you can do following an accident to set things right. If your child’s injury occurred as a result of an accident, or through negligence, then you may be able to make a personal injury claim on their behalf.

Before doing so, it’s important to understand the legal implications of making a personal injury claim for a child – whether it’s a minor or catastrophic injury – and how this differs from an adult making a similar claim. In this article, the specialist personal injury claim solicitors at Romain Coleman will walk you through the process of making a personal injury claim for children.

Examples of incidents that involve personal injury claims

As with adults, children can be involved in accidents through no fault of their own, or they can suffer as a result of negligence.

Some examples of when children can be injured include:

  • Road traffic accidents
  • Aviation/plane accidents
  • School accidents
  • Rail accidents
  • Cycling accidents
  • Accidents at an activity centre
  • Work-related accidents
  • Dangerous products
  • Medical negligence

Despite the grounds for bringing about a case being similar, the process by which children and adults make a personal injury claim does differ.

Why does a child’s personal injury claim differ from an adult’s claim?

While injuries suffered by children through accidents or negligence are just as applicable for personal injury claims as those suffered by adults, there are several key differences in the way these cases are treated.

These differences exist because those under the age of 18 in England, Wales and Northern Ireland can’t make a personal injury claim. This is due to legislation stating that those under the age of 18 lack the sufficient legal ‘capacity’ to represent themselves in law. In Scotland, the age of capacity is 16.

Parents and guardians are left with two choices to make in the event of pursuing a personal injury claim for a child. They can:

  • Wait for their child to turn 18 (16 in Scotland), so the child can decide whether they want to pursue a compensation claim or not.
  • Represent their child as a ‘litigation friend’.

To decide which option is best for you and your child, let’s look at these two options in some more depth.

Option 1: Waiting for your child to turn 18

You may want to wait for your child to turn 18 (16 in Scotland) so that they gain legal capacity and can decide for themselves whether or not they want to make a claim.

However, once your child (or the child you’re caring for) reaches the age of capacity, they only have three years to make a compensation claim. That means that they’ll have until they are 21 (19 in Scotland) to make their claim. This is in line with adults having three years to make a claim. After this point, the limitation on their claim will expire.

Option 2: Litigation Friend

While an under 18-year-old can’t represent themselves in England, Wales and Northern Ireland, an adult acting on their behalf as a ‘litigation friend’ can represent them. A litigation friend will make decisions and sign any relevant legal documentation on behalf of the child.

While this is often a parent or a guardian, a litigation friend can also be a carer, family member or friend. The litigation friend always has to have the child’s best interests in mind when acting on their behalf. As such, they have to be independent of the case. For example, if a parent were being blamed for an accident in which the child was injured, they would not be able to represent their child, as they would not be independent of the case.

How compensation works

The amount of compensation awarded can be dependent on several areas but is primarily determined by two categories in particular: general damages and special damages.

General damages are linked to the suffering or pain a child endured as a result of the accident or incident. The injury’s severity and the relevant prognosis will affect the level of compensation.

Special damages are linked to the financial aspects of the accident or incident. This could include travel costs, damage to property and medical expenses incurred. However, it also takes into consideration future financial considerations too.

For example, if the injury was severe or catastrophic, it may include cover for treatments or care that may be required in the months and years ahead. It may even include a predicted loss of earnings if it’s expected that the child will be left unable to work in later life.

While the process by which damages are awarded is similar to how adult cases work, there’s a distinct difference when it comes to claims being settled outside of court. This is because a judge must approve any agreement reached outside of trial involving the personal injury claim of a child.

This is called an ‘infant settlement hearing’ and exists to protect the child further. It allows a judge to examine and ensure that the amount of compensation being offered by a defendant is satisfactory and relevant to the circumstances.

This also allows the court to oversee arrangements so that the compensation award is held and managed until the infant turns 18 (16 in Scotland). Generally, litigation friends will not have access to any compensation awarded as part of a child’s personal injury claim. Instead, this will be released to the child upon them reaching the age of capacity. However, there are incidents where small sums of compensation will be released to the litigation friend.

Who should I talk to regarding a child’s personal injury claim?

Before you decide which option to go with – whether claiming now or allowing the child to claim in the future – there are many key issues and actions that need to be taken today. Therefore, it’s essential that you speak to a qualified personal injury claim solicitor with experience in cases involving children as soon as possible.

Our team at Romain Coleman offer this expertise and experience to any concerned parent or guardian. Whether you want to act today, or allow your child to act in future, our approachable and experienced catastrophic injury solicitors will listen to your case and offer legal advice that’s in the best interest of your child.

If you choose us to represent you and your child, rest assured that we’ll leave no stone unturned to ensure that they receive justice and fair compensation – helping them to start adulthood with some financial security.

To speak to one of our specialist personal injury claim specialists, give us a call on 0208 520 4555 or get in touch online today.

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This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.