If a child gets involved in an accident by reason of negligent act(s) or omission(s) of another, and an injury is sustained, a personal injury* claim can be brought as a legal remedy to the situation. Accidents involving minors are treated differently to that of an accident concerning an adult in terms of the law and legal proceedings.
Typical Personal* Injury Claims
Common causes of such accidents to children which occur through no fault of their own where legal actions arise include the following examples:
- Accidents as a result of defective products;
- Accidents where the child was a passenger in a car or on a bus;
- Accidents where the child was a pedestrian;
- Birth injury accidents;
- Accidents in public places;
- Animal bites.
Accidents can happen due to poor implementation of safety procedures, for example, and in circumstances where negligence arises in addition to an injury being sustained by an innocent party then a legal action can be brought.
It can be quite common for an organisation/company to have risk assessments / safety measures policy documents etc. written down on paper, but then the implementation of these measures are not followed up, a basic standard of care does not arise, and an accident occurs with the result that a person is injured which was not their fault.
Legal Time Limits for Minors Personal Injury Claims
It is important to note that the time to file a child’s personal injury claim differs significantly to that of an adult. One needs to initiate legal action within a mandatory two years from the date of the accident, however, if the person is below the age of 18, the two year period only begins to run on their 18th birthday which is termed their age of majority. Therefore, the child who has reached the age of majority ie 18 has now one day within two years to initiate a legal action. Any legal action commenced outside of this time frame will be what is termed statute barred.
Who Takes the Case? Legal Capacity
The law is clear on who should take a child personal injury claim legal action. A person below 18 years is a considered a child and does not have the legal capacity to commence a case. However, an adult, can on behalf of the child initiate a case. It is generally the parent of the child who takes the case on behalf of the child. The legal term used for this is the Next Friend or Guardian Ad Litem.
This person has all of the responsibility of a person normally taking a case even though they are not the injured party. For example, if a case is lost, it is the parent that carries the legal costs etc. and not the child, so the child has this legal protection.
Importance of Not Delaying Minors Personal Injury Claims
One may think therefore there is ample time to start this particular type of case. There may be time, however, we would say it is very important to move quickly so your solicitors take the necessary steps to gather the evidence. You do not need to decide which course of action you are going to take at the outset. If you feel what happened is wrong, that there was negligence resulting in an injury, then you can have an initial meeting with your solicitor to give him/her the facts in order that you can understand your legal options and then make an informed decision.
Your solicitor can proceed to gather the necessary evidence immediately as it can be lost very quickly, and then after considering what you wish to do, furnish your instructions to your solicitor whether you are proceeding with the matter or not. Your solicitor will need all of the details of the accident, medical care, parties involved, witnesses, Gardai names, photographs etc. Evidence not gathered at the outset can have a negative effect on a persons case.
How to Make a Minors Personal Injury* Claim
One must send out a notification to the party responsible for the accident pursuant to S.8 of the Civil Liability Act, 2004, and this must be done within one month of the date of the accident. The matter then proceeds by way of application to the Injuries Board for assessment. A medical report, administration fee and completed application from must be submitted to the Injuries Board for assessment.
On – Form A – which is the application form to the Injuries Board, you will be asked to identify ie specify the name of the party responsible for the accident, and this must be correct. Without the correctly identified legal name of the party responsible, the case can be commenced against the wrong party.
You must describe the accident in the form, give details about the injury, past medical history of note etc. You can complete this form yourself, or a solicitor can assist you in this regard. Your medical report should be reviewed with your description of your injuries / symptoms. Next you will need to consider what losses you have to date and these will have to be organised. Form A will request that you provide detail in relation to same.
Once the application is completed correctly and submitted to the Injuries Board, the said Board will provide the applicant with confirmation of registration of the claim and they will proceed to furnish a S.13 Notification to the party responsible for the accident to enquire if this party consents or not to the Injuries Board assessing the matter.
If the responsible party consents to the Injuries Board Assessing the matter, or if this party does not communicate with the Injuries Board within the necessary 3 months whether they agree or not to the Injuries Board assessing the claim, the Injuries Board will proceed to assess the matter.
This whole process in our experience takes approximately one year from the time the application is lodged. If at the outset the party responsible for the accident confirms to the Injuries Board they do not consent to the Injuries Board assessing the matter, the injured party will have a right of recourse to the Courts for the resolution of the matter.
At the conclusion of the Injuries Board application process, they will issue what is termed an ‘Assessment’ which is a sum of money to the applicant. It is then for the applicant and the party responsible for the accident to decide if they will accept the offer made by the Injuries Board to the injured party to conclude the matter.
8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.