The leading cause of death for Canadian children is unintentional and preventable accidents, according to Raising Canada 2020, a report produced by non-profit children’s welfare organization Children First Canada. Further, data from the Public Health Agency of Canada published in Injury in Review, 2020 Edition confirms that a major cause of serious injuries and death for Canadian children is transportation collisions.
In most cases, children are passengers, not drivers, and it is often a family member who is driving. No one wants to cause injury to a child, let alone a parent or family member, but accidents can happen at any time. The question then becomes – how does the legal system address the rights of an injured child in cases where a parent may be at fault or partly responsible for a car accident that injures the child?
Child passenger injuries
When a child is injured when riding as a passenger in a vehicle driven by a family member, usually their father or mother, the legal path forward is clear – a legal representative for the child must act in the best interests of the child and make a claim on the insurance policy of the driver. This will likely lead to a lawsuit against the family member. We understand that this is an extremely difficult emotional journey in most cases for both the child and family member, especially when it involves the child’s father or mother. As experienced personal injury lawyers, we have seen this situation frequently. We empathize with your situation and also want to reassure you that a claim on the driver’s insurance policy and a potential lawsuit against the family member who was driving is the legally necessary course to advance the best interests of the injured child.
Lawsuits against family members – what you should know
One concern in this situation is that a potential lawsuit against a family member may damage familial relationships. A second concern may be that the lawsuit will cause financial hardship to their family member by causing a significant increase in their insurance rates. Experienced personal injury lawyers will explain to the injured child and their legal representative that a potential lawsuit against their family member will not, in fact, impact them directly – the insurance claim or lawsuit will engage the insurance company and not the family member, and the injured child will not be asking the family member to compensate them directly. Insurance is purchased by the family member to compensate any party they may have been at fault in injuring and is equally in place to compensate their injured child. Moreover, if the family member was at fault for an accident and injured a third party, or injured other passengers in the vehicle, or even if the family member simply made a claim for property damage to the vehicle, their insurance rates would likely go up in any event.
There are additional reasons why the injured child should have no concerns about suing the family member. If another vehicle is involved in the accident, they may argue in a lawsuit that the family member was solely or partially at fault, and it will be necessary for the injured child to have sued the family member as well to receive full compensation. Suing the driver should be thought of as protecting the injured child’s right to compensation and not as punishing the driver.
This was the situation in the Alberta case of Ward (Next Friend of) v. Ward, 2010 ABQB 654. The 16-year-old Cory Ward had just been adopted into the Ward family. His father Gerald Ward was driving him to visit his girlfriend on a neighbouring reserve northwest of Edmonton on the afternoon of a blustery winter day. Although Cory was wearing a seatbelt, he was severely injured when his father made an unsafe left-hand turn across the highway and was struck by the defendant Dixon’s vehicle at high speed. Both drivers were also injured. The legal representative for Cory, his adoptive brother, sued both his father and the oncoming vehicle driver Dixon and argued that the Dixon vehicle was at fault for travelling too fast given the road conditions. The trial judge emphasized that the legal burden was on Cory to prove the fault of the oncoming driver and concluded that the father was 100% at fault for making an unsafe turn. In this case, a lawsuit against a family member was critical to the recovery of damages for the injured passenger child (Cory).
Further, if the other driver has insufficient insurance to cover the full injuries of the child, or if the other driver is uninsured, it is necessary to claim against the family member’s policy for underinsured or uninsured insurance coverage.
An experienced personal injury lawyer can help you assess whether these types of no-fault insurance benefits are available to help an injured child. Your lawyer can also help you assess whether the injured child may be an “insured” entitled to benefits under another insurance policy. This could happen, for example, if the defendant driver had permission to drive a vehicle owned by another insured party.
Limitation periods and injured children
In Alberta, a “child” is defined as any person under the age of 18. Several other issues arise when a child is injured as a passenger in a vehicle. Lawsuits for injuries sustained in car accidents have time limits called limitation periods. This means you have a limited period of time to file a lawsuit against the at-fault driver. If you miss the limitation period, you lose the right to sue for damages. The limitation period to start an action following a motor vehicle accident in Alberta is, in general, 2 years. In the case of an injured child, this period is suspended while the plaintiff in the lawsuit is a minor (under 18). This is because, under the law, minors are not legally competent to handle their affairs (including pursuing a lawsuit). As a result, a child injured in a motor vehicle accident has until the day before their 20th birthday to start a legal action. However, there are situations where a potential defendant in the lawsuit can cause the limitation period to begin to run against a minor by delivering a prescribed notice to a guardian of the minor or the Public Trustee.
IMPORTANT: The suspension of the limitation period for children to sue a negligent driver DOES NOT apply to claims against insurance companies for failing to pay accident benefits. In these cases, the 2-year deadline still applies. So, claims for accident benefits must be pursued within 2 years of the accident or 2 years from the date a benefit is last paid, whichever is greater.
The bottom line is that injury claims can get complicated fast, which is why it’s a good idea to get legal advice from an experience personal injury lawyer if your child has been injured in a driving accident. That way, you can be sure they are getting access to the accident benefits they are entitled to, and you protect your child’s right to sue a negligent driver for damages.
The role of the Public Trustee and lawsuits involving injured children
In any action by an injured child passenger following a motor vehicle accident, there is a significant likelihood that the Public Trustee may have a major role. Usually, the parent or guardian of the child will be the child’s litigation representative in the lawsuit to recover damages for the benefit of the child. The roles of the Public Trustee may include ensuring that the parent, or guardian, of the child has the ability and intention to act in the best interests of the child regarding the lawsuit. Alternatively, the Public Trustee may act as a litigation representative for the child in the lawsuit. Further, awards granted or settlements proposed at the end of the lawsuit may require the approval of the Public Trustee. The Public Trustee may also hold the award monies in trust for the benefit of the injured child and apply them for ongoing healthcare or therapy needs, for example.
Damages and injured children
Determining damages for injured children is not straightforward. On the one hand, a damage award received by an injured child may reflect a much greater number in damages for future loss of income than is the case for an adult plaintiff. This is because a child likely has many more years of life ahead of them. On the other hand, it may be difficult in the case of a young child to predict what their future working life may have entailed and to estimate the future loss of income. In addition, the cost of future care may also be a significant head of damages for a young child who is severely injured, as their needs will be substantial and will likely continue for an extended number of years. Ward (Next Friend of) v. Ward, 2010 ABQB 654 is an excellent illustration of the court struggling to quantify both loss of future income and the cost of future care damages.
About CAM LLP experienced personal injury lawyers
At CAM LLP, we understand the impact and ripple effects that a severe injury can have on your life and the lives of those you love. Our experience includes handling cases where children have been injured in driving accidents. We understand the emotional toll these cases take and what needs to be done to ensure an injured child has access to every possible resource to help their recovery.
Since 1962, our lawyers have been achieving precedent-setting results for injured Albertans. Years of experience evaluating claims, negotiating settlements with insurance companies, and helping injured people get fair compensation makes a difference.
Please contact us for a free consultation.
