When Children are in Accidents: Their Rights

When you send your child to scouts to participate in variety of outdoor activities that last thing you think will happen is your child sustaining spinal injuries, dislocations and bruising, but this is exactly what happened to eight children at the Baden Scout Camp in Stamford some years ago.

The young scouts were standing on a concrete pontoon when all of the children stood to the one side of it and it overturned, causing the children to fall into the water and the pontoon to fall on their heads. Fortunately, no child was seriously injured in this accident.

But what happens when a child is seriously injured in an accident? Unfortunately, this does happen and it’s important to understand what rights children have in this instance. In this article we examine the rights of children to bring a claim for personal injury.

In Australia approximately 58,000 children are hospitalised every year due to unintentional injury. In Victoria alone more than 14,000 children are hospitalised and more than 67,500 children attend hospital emergency departments for unintentional injuries in one year. The most common cause of injury in varying age groups in Australia includes:

  • Ages 0-12 months: Injury due to thermal causes (including exposure to smoke, fire and flames, and contact with heat and hot substances);
  • Ages 1-4 years: Falls from playground equipment, with 40% of these falls from trampolines;
  • Ages 5-9 years: Falls from playgroup equipment, with 42% of these falls from climbing apparatus;
  • Ages 10-14 years: Falls involving pedestrian conveyances, with 66% of these falls involving skateboards;
  • Adolescents ages 15-17 years: ‘Other unintentional causes’ with the two most common being exposure to inanimate mechanical forces (including struck by a ball or other objects, or contact with a knife or glass window) followed by exposure to animate mechanical forces (including being struck by another person or bitten or struck by a dog).

From these injuries boys are more likely to be hospitalised than girls, with boys outnumbering girls by 2 to 1 in 2011-12.

While not all of these injuries are cause for alarm, sometimes injuries are a cause for concern if they have been sustained as a result of negligence. Should this be the case the injured child (through their litigation guardian) has the right to bring a claim for personal injury against the party responsible.

Personal injury claims for children (i.e. a person under the age of 18 years) are run much the same way as those involving adults. The same laws will apply with respect to proving negligence and the claim will be run by the child’s litigation guardian (usually their parent).

Personal injury claims for children will often take longer to settle than those of adults (depending on the age of the child). This is because it is often hard to predict how the injury is likely to impact the child in adulthood, and also because the degree of permanent impairment resulting from their injury may not be clear until years after the event given their growing body.

The main difference however between personal injury claims for children and adults is the time limits within which the claim must be brought. While a claim must be commenced in a Court within 3 years of the date the cause of action arose (usually the date of the accident) for adults, the time for children to lodge a claim is extended 3 years after they are no longer under a ‘legal disability’. Therefore:

  • A claim for personal injury must be lodged within the Court by their 21st birthday (i.e. 3 years after they turned 18 years old), if they were under 18 years at the time the cause of action arose.

However even though a claim does not have to be lodged in the Court until the child’s 21st birthday the child’s litigation guardian will still have to comply with other timeframes imposed upon personal injury claims. For example the Personal Injuries Proceedings Act 2002 requires a person considering a personal injury claim to first give written notice of the claim to the proposed defendant within the earlier of:

  1. 9 months of the incident giving rise to the personal injury or the first appearance of symptoms of the injury; or
  2. 1 month after the person first instructs a law practice to act on that person’s behalf in seeking damages for the personal injury and the proposed defendant has been identified.

The legislation governing motor vehicle accidents imposes similar time-frames.

While injuries are a part of growing up and not all injuries require medical attention, those that do, and have arisen due to the negligence of another, gives an injured party the right to claim damages against those responsible.

A child (through their litigation guardian) has the same rights to recover damages for injury resulting from negligence as an adult, although a child will generally have a lot longer to file the claim in the Court. The child’s litigation guardian however will still have to comply with all of the pre-court procedure timeframes should they wish to commence the action on behalf of the child.

For information on how to keep your children safe at home, on the road, and in the playground please visit www.kidsafeqld.com.au

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