Children are all too frequently involved in motor vehicle accidents.
In the last few months alone we have seen in the news a number of kids in car accidents who have been badly injured. Although no one likes to discuss children being injured in motor vehicle accidents, the unfortunate fact of the matter is that sometimes the worst does happen.
So what are the rights of children when it comes to injuries sustained in motor vehicle accidents? We take a look.
Hospitalisation of young children from unintentional injury is commonly a result of (among other things) transport accidents including kids in car accidents, pedestrian incidents and driveway run overs. A child (who is regarded as any person under the age of 18 years), may make a claim for personal injury through their litigation guardian.
They can make this claim against the CTP insurer of the driver at fault if they were:
- A passenger of a vehicle or motorcycle;
- A passenger in a school bus, charter bus, council bus etc.;
- The driver of a vehicle who is not at fault;
- A cyclist;
- A pedestrian.
A personal injury claim for kids in car accidents is run much the same way as those for adults involved in a car accident. 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 usually 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 – once their body has finished growing. A child, through their litigation guardian, has available to them the same damages as that of an adult.
There are however a few differences between motor vehicle accident claims for kids in car accidents and those for adults. Firstly, if a child’s litigation guardian and the CTP insurer are able to reach a settlement agreement while the child is still under a ‘legal disability’ (i.e. they are under the age of 18 years at the date of the settlement agreement) this agreement is required to be sanctioned by the Public Trustee before it can be classed as a valid settlement.
Once the Public Trustee is satisfied that the settlement agreement is satisfactory and it is in the best interest of the child they will sanction (agree and make valid) the settlement. The child’s settlement monies will then be paid to the Public Trustee instead of the litigation guardian or the child themselves. This money will then be held on trust by the Public Trustee until such a time that the child’s ‘legal disability’ ends (usually on their 18th birthday).
Secondly, the timeframes within which a claim must be commenced is extended to allow the child the opportunity to make a claim themselves once their legal disability has ended. As a child is under a legal disability they are unable to commence the claim themselves until such a time as they are no longer under such a disability i.e. they turn 18 years of age.
Unfortunately, often by the time the child turns 18 years of age and wishes to bring such a claim themselves, they have well and truly missed the timeframes within which a claim must be commenced as imposed by the Motor Accident Insurance Act 1994 (MAIA) and the Limitations of Actions Act 1974.
Luckily the law recognises this and affords those under a ‘legal disability’ an extension of time. For example, should a Claimant wish to commence a claim in Court for a motor vehicle accident that occurred while they were under a ‘legal disability’, the time for bringing such 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.
Further, the pre-court requirements set down by the MAIA are also extended. The MAIA requires a Claimant to provide a written notice of the motor vehicle accident claim to the appropriate CTP insurer within the earlier of:
- 9 months after the motor vehicle accident or, if symptoms are not immediately apparent, the first appearance of symptoms of the injury;
- 1 month after the Claimant first consults a lawyer about the possibility of making a claim.
However this requirement will not have to be compiled with until the child turns 18 years of age (should they wish to commence the claim themselves), meaning:
- the notice will have to be provided to the CTP insurer within 9 months of their 18th birthday or 1 month from when they first consult a solicitor after they turn 18 years of age.
If the notice is not given within these time frames the obligation to give the notice will still continue and a reasonable excuse for the delay must be provided. Stricter timeframes exist if the claim is to be lodged against the Nominal Defendant.
However if the child’s litigation guardian wishes to commence the claim on the child’s behalf, then that litigation guardian will not be afforded the same extensions and must comply with the timeframe requirements as set out in the MAIA . Meaning they must provide notice within 9 months from date of accident or 1 month from first consultation with a solicitor.
It is important to note, however, that claims for personal injury should be commenced as early as possible after the accident, as it is not ideal to simply rely on the fact that a child’s limitation period does not start running until they turn 18 years of age.
To keep the littlest members of the community safe when travelling in motor vehicles Kid Safe has the following tips:
- The use of any restraint is preferable to not using a restraint;
- Infants are safest if they remain in their rear facing restraint as long as they still fit in their rear facing restraint;
- Once a child is too big for their rear facing child restraint, they should use a forward-facing child restraint (with built in 6-point harness) until they are too tall for it;
- Once a child is too tall for a forward-facing child restraint, they should use a booster seat with a lap-sash seat belt until they are tall enough to fit properly into an adult seat belt;
- For a child in a booster seat or an adult seat belt, use a seating position with a lap and shoulder belt;
- All child restraints and booster seats must be installed correctly and the child strapped in correctly;
- Children 12 years of age and under are safest in the rear seat;
- Seat belts should never be used with the sash belt under the child’s arm of behind the child’s back, whether they are being used alone or with a booster seat;
- When planning a journey with children use a motor vehicle which allows child to be in the appropriate restraint for their size;
- Regularly check that child restraints are correctly installed and that the restraint is adjusted properly for the child’s size according to the restraints user manual.
Kids in car accidents (through their litigation guardian), have the same rights to recover damages for injury resulting from negligence as adults. However, 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 as set out in the MAIA should they wish to commence the action on behalf of the child.
A child’s right to claim damages for injury sustained in a motor vehicle accident is something that should be utilised and protected by their litigation guardian. After all, they are almost always the innocent passenger caught up in the negligent driving of another.
