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Accidents involving Children

When a child has been injured as a result of an accident or medical negligence, that claim must be brought on the child’s behalf by a ‘Litigation Friend’.  This is usually a parent or close relative of the child and is necessary as the child does not have legal capacity to manage their own affairs or to sign legal documents.

The actual procedure for pursuing a claim for compensation involving an injured child is the same as that for an adult, except there are some special rules which apply to children to ensure their rights are fully protected.

In cases involving adults, a claim must be either settled or issued at Court within three years of the date when they knew or ought to have known of circumstances giving rise to a claim.  As a child does not meet the age of majority until they are 18 years old, that three year period does not start until the child’s 18th Birthday.  This is because, sometimes, parents of the injured child may not wish to bring a claim and the child is not able to make this decision until they are 18 years old.

Regardless of the above, it is important that a claim for personal injury is commenced as soon as possible, when the evidence is fresh and memories are not tainted by the passage of time.

Any settlement on behalf of a child must be approved by the Court, which will involve both the child and the Litigation Friend attending Court, with a legal representative so that the Judge can meet with the child and ask any questions he or she feels relevant.  The Judge cannot lower the settlement agreed between the parties but if he or she feels that the settlement is too low, then the parties will be ordered to enter into further negotiations.

Once the settlement is approved by the Judge, the compensation can be invested by the Court on behalf of the child, until they reach the age of 18 years.  There are certain circumstances in which an application can be made for the release of some of the compensation prior to the child’s 18th Birthday, but this is only if the money is to be used for the child’s education or benefit.

Alternatively, particularly if the settlement is high, the money can be placed in a Trust Account making access to the money easier for ongoing care etc.

The same process is followed for settlements involving people who do not have capacity to deal with their own affairs, for example someone who has suffered a serious brain injury or an elderly person with dementia.  These Claimants are known as “Patients” and the time period to enable them to bring their claim will not start until they have capacity to deal with the claim in their own right.  For those who have sustained serious brain injuries or who are unlikely to regain their capacity, there is no time limit to bring their claim.

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