No matter how hard we try though, we can’t always prevent injuries and accidents from happening
Author: Renée Vinett, RN, LLB, CS
Howie, Sacks & Henry LLP
We can all agree that our children are the most precious treasures we have in life. That’s why we do everything we can to keep them safe and out of danger. No matter how hard we try though, we can’t always prevent injuries and accidents from happening.
Injuries to a child
When a child’s injuries are the result of faulty products and equipment or the negligent behavior of an individual or organization charged to care for the child, a personal injury claim can be pursued.
Injuries can arise from any number of situations, including:
- Accidents at daycare, in classrooms or on playgrounds
- Sports-related injuries like in a swimming pool or skiing
- Action or inaction of caregivers
- Appearing in court for one event or appearing with a client at a mediation session;
- Car accidents or other injuries on the road
- Defective toys or other products
Who Can Sue
A minor child, under the age of 18, cannot bring a case on his or her own behalf. A litigation guardian is required. Most often, the litigation guardian is a parent, relative or guardian who voluntarily agrees to act on behalf of the child. Where this is not possible, a litigation guardian may be appointed by the court.
In the Best Interests of the Child
The court has ultimate oversight authority to review and approve settlement proposals, thereby ensuring that they have the best interests of the child in mind. Without the court’s blessing the settlement is not legally binding.
In the usual course, settlement funds destined for the child are paid into court and held by the accountant of the Superior Court of Justice until the child turns 18. In special circumstances, for example, the case of a disabled child in need of funds for ongoing rehabilitation services or assistive devices, periodic payments out of court may be ordered. Often times, where ongoing funding is required, a Structured Settlement is put in place to provide a non-taxable, monthly income stream to cover the costs of future care and rehabilitation.
Limitation Periods for a Child Plaintiff
The usual limitation period for starting a personal injury lawsuit is two years from the date the accident took place. When it comes to a minor, however, that two-year limitation period does not begin to run until the child turns 18.
Giving Evidence
Although the Ontario Evidence Act stipulates that everyone is presumed competent to give evidence, no matter how old they are, that competency can be challenged when it comes to a child under the age of 14. A judge will conduct an examination to determine competency before allowing a child’s evidence to be admissible in court.
At HSH, we’re committed to helping your child obtain the compensation he or she deserves and ensuring access to medical and community resources that will help them move forward with the greatest care and support possible.
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