How to make a personal injury claim for a child or a person under a legal disability

When a child suffers an injury that gives rise to a personal injury claim, there are special rules that apply to making a claim on their behalf.

Children under 18 are considered to be under a legal disability, meaning that they do not have legal capacity to bring a claim themselves. The same rules apply to a person who is under a legal disability, such as a person who suffers a severe brain or psychological injury and does not have the capacity to act rationally or reasonably in relation to their claim.

Litigation guardian

Firstly, in order to pursue a claim for a person under a legal disability, a “litigation guardian” will need to be appointed to start the claim and provide instructions on the person’s behalf. This will usually be a parent or guardian of the child, or a parent or spouse of a person with a disability, but it is possible to appoint another responsible person as the litigation guardian. Being a litigation guardian is a big responsibility and a very important role.

Time Limits

Ordinarily, under the Limitations of Actions Act 1936 (SA), an adult has three years from the date of their injury to commence a personal injury action in the Court. However, the time limit is different for children and people under a legal disability.

For children who suffer an injury, the time limit is extended to three years from the date when they are no longer under a legal disability e.g. three years after their 18^th birthday. Therefore, a child has until their 21^st birthday to commence proceedings in the court.

For a person under a legal disability, who is not a child, the time to commence proceedings is extended by the period for which the disability exists from the time the right to bring the action arose, up to a maximum of 30 years. For example, if an infant suffers a brain injury at birth and they suffer a permanent mental incapacity, they must bring their claim before their 30^th birthday.

These are general rules that will not apply to every situation. There are also other pre-action time limits that apply. In order to ensure you receive the correct advice about your circumstances, it is best to consult a lawyer as soon as possible after the injury is suffered. This is crucial in order to gather evidence, comply with time limits, keep accurate records of treatment and expenses, and ensure you are in the best position to pursue your child’s entitlements.

Settlement

As a child or person under a legal disability does not have legal capacity, any settlement reached on their behalf must be approved by the court.  When making an application to the court to approve a settlement, a written opinion must be provided from a barrister regarding the reasonableness of the settlement. This means that, in any claim settled on behalf of a child or person under a legal disability, it is essential to obtain legal advice on the settlement and a barrister must be retained to provide an opinion to the court.

Any compensation awarded to a child or person under a legal disability is held in trust for their benefit and a trustee is appointed to manage the funds on their behalf.

If you think you might have a claim on behalf of your child or a person under a legal disability, please contact our office on 8213 1000 to arrange a free initial consultation to get specific advice in relation to your circumstances.