When a child is injured due to someone else's negligence, parents face the difficult task of not only caring for the child, but also getting their heads around what can be quite a challenging legal framework. You might be asking yourself how these cases differ between an adult and a child. The truth is that personal injury claims for these under 18 years involve unique legal procedures, extended time limits, and special protections designed to safeguard minors' interests throughout the compensation process.
Unlike adult claims, children's personal injury cases require litigation guardians, court approval for settlements, and careful management of any funds which might be awarded. The legal framework recognises, quite rightly, that children cannot make informed decisions about their own legal matters. For this reason, additional safeguards are put in place to ensure they receive the appropriate compensation for their injuries.
This comprehensive guide explains what you need to know when pursuing compensation for injured children in Queensland, from understanding your rights as a parent to getting to grips with the court process. We'll explore the practical steps involved, common pitfalls, and what we need to consider as we differentiate children’s claims from cases involving adults.
Understanding Personal Injury Claims for Children
Children under 18 cannot lodge compensation claims directly but must have a litigation guardian acting on their behalf. This person, who is normally the parent or legal guardian, is there to make all decisions about the legal claim. It goes without saying, but these should be made with the child's best interests in mind, and include things such as accepting settlement offers or arranging competent legal representation.
The fundamental principle: protection. This is the underlying concept behind children’s personal injury law. The legal system recognises that minors cannot make fully informed decisions about serious legal matters, so extra safeguards are in place at every stage, from filing claims to handling compensation.
A child's personal injury claim can arise from various circumstances, including motor vehicle accidents where the child was a passenger, pedestrian, or cyclist, playground accidents at schools or public facilities, injuries at childcare centres, medical negligence during treatment, or injuries from defective products, like toys. Each type of claim has its own set of requirements and procedures that must be followed.
The compensation available to injured children is similar to what adults can expect to receive. It takes into account things such as medical expenses, pain and suffering, loss of everyday pleasures, future care costs, and future economic loss. Calculating these damages for children is especially challenging, especially when estimating their future earning potential and lifetime care needs from such a young age.
Key Legal Framework
Queensland's legal framework for children's personal injury claims is governed by several pieces of legislation. The Personal Injuries Proceedings Act 2002 (Qld) sets out the primary procedures for personal injury claims, including mandatory pre-court steps and specific notice requirements.
The Motor Accident Insurance Act 1994 (Qld) governs the Compulsory Third Party (CTP) insurance scheme covering children injured in motor vehicle accidents. The Uniform Civil Procedure Rules 1999 (Qld) establish the procedural requirements for litigation guardians and court proceedings involving minors, while the Guardianship and Administration Act 2000 (Qld) deals with how guardians are appointed and how funds are managed.
The regulatory framework operates through Queensland's court system, with the Supreme Court and District Court having jurisdiction over personal injury cases. The Queensland Civil and Administrative Tribunal also plays a role in certain guardianship issues, while the Public Trustee of Queensland is entrusted to manage compensation funds for many child settlements.
Your Rights and Obligations
As a parent or legal guardian, you have the right to pursue compensation on behalf of your injured child, acting as their litigation guardian throughout the entire legal process. This role carries with it a huge amount of responsibility. After all, the litigation guardian is tasked with much of the decision-making, including instructing lawyers, gathering evidence, and making settlement decisions, while the whole time thinking about what is in their child’s best interests.
Parents are generally the natural legal guardians of their children, meaning they have the authority to pursue legal claims. This step, however, the transition from parent to litigation guardian, is not as simple as it first may sound. This is because of the legal responsibilities which extend beyond the duties of a normal parent. Some of these include keeping your child informed about the proceedings in age-appropriate terms and ensuring all decisions are made considering what’s best for the child, rather than for the family more broadly.
Your obligations as a litigation guardian further include attending all of the required meetings and conferences, signing necessary legal documents, maintaining regular communication with your child's legal team, and making informed decisions about settlement offers and case strategy as proceedings unfold. You are also responsible for ensuring your child attends medical appointments and examinations, which might be required as part of the claim.
Parents are tasked with handling these claims when their children are hurt at school, in car accidents, or at childcare and recreational facilities. They can also seek compensation if a child is harmed by poor medical treatment or negligence. Each scenario requires understanding specific legal requirements and procedural steps.
Finally, as a litigation guardian, you can seek compensation for all aspects of your child's injuries, including immediate medical expenses, ongoing treatment costs, pain and suffering, scarring or disfigurement, loss of enjoyment in sports or activities they used to find fun, future care needs, and potential impact on future earning capacity. The wide range of compensation shows that the law recognises just how injuries sustained during childhood can affect someone for their entire life.
Common Situations and Questions
What is the time limit for making a personal injury claim for my child?
Children have until their 21st birthday to start court proceedings for personal injury claims. The standard three-year limitation period, which applies to adults, doesn't start until the child turns 18. It’s worth bearing in mind, though, which notice requirements need to be submitted and in what timeframe.
For motor vehicle accidents, it’s within nine months of the crash or within one month of first consulting a lawyer. Public liability claims work within similar timeframes. On the other hand, medical negligence claims allow longer limits: either within six years from when the parent or guardian knew about the injury, or within 18 months of first consulting a legal representative about the possibility of seeking compensation.
Can I start a claim before my child turns 18?
Yes, parents are encouraged to commence claims while children are still minors to preserve evidence and ensure notice requirements are met. Making a claim early on means witnesses are more likely to be available to testify, and to make sure you comply with all of the deadlines. Remember: all settlements require court approval regardless of the child's age when the claim is resolved.
What does it mean to be a litigation guardian?
A litigation guardian can be seen as a substitute decision-maker who acts in the child's best interests throughout legal proceedings. They are there to instruct lawyers, gather evidence, and make all decisions concerning the claim. This role carries legal responsibilities and potential financial liabilities, including personal responsibility for legal costs if these ever become a factor.
Do all settlements need court approval?
Yes, all settlements involving children require court approval before finalisation. Courts assess whether settlements adequately compensate for injuries, with the children’s welfare always in mind. This process protects against under-settlement but can extend the period of time it takes to get the case resolved.
How is compensation calculated for children?
Compensation for children is based on the same principles as adult claims, but can be harder to calculate, mainly because of future losses. For children, future care costs often represent the largest component in serious injury cases. In the case of Hills v State of Queensland, almost $3 million was awarded specifically for future care and assistance, out of a total $5.3 million.
What happens to the money awarded to my child?
Courts can order various arrangements for managing compensation funds, including payment into the Court Funds Office for release when the child turns 18, or partial payment to litigation guardians to be used immediately. The Public Trustee may be appointed to professionally manage larger settlements, ensuring that the money is invested appropriately or protected.
What if my child was injured at school or daycare?
School and daycare injuries can give rise to public liability claims against institutions that fail to provide enough supervision or maintain safe spaces. These cases are common, given the amount of time that children spend in such places.
Can I claim for my child's future earning capacity?
Yes, but calculating future economic loss for children requires expert evidence which takes into account potential career paths and earning capacity. Courts might take into account pre-injury academic performance, family background, extracurricular interests, and projected earning data.
Recent Changes and Developments
The Civil Liability Act 2003 (Qld) has recently been amended to provide additional protections, particularly for institutional abuse cases which occur in school or a similar institution. These have strengthened protections for child abuse victims, removing limitation periods for certain abuse claims and imposing new statutory duties on institutions to prevent child abuse. A major change has been extending definitions to include sexual abuse, serious physical abuse and psychological abuse.
Recent case law has clarified various aspects of children's claims, including the calculation of future care needs and the assessment of whether a settlement is reasonable. Courts have demonstrated willingness to scrutinise settlements carefully, rejecting proposals deemed inadequate and requiring renewed negotiations with insurers.
Finally, policy developments have focused on improving safety standards in schools, childcare facilities, and public spaces. These changes show that institutions are increasingly expected to protect children and could affect how liability is judged in future cases involving poor safety or supervision.
Going forward, it’s more than likely that child protection measures will strengthen, with changes to the role of the litigation guardian and how settlements are approved to guarantee the best outcome for the child.
Also read: What is a "Public Place" in Public Liability Claims?
Practical Guidance
Step 1: Immediate Response - Seek medical attention for your child immediately, ensuring all injuries are properly diagnosed and documented. Obtain copies of all medical records, emergency department notes, and specialist reports. Report the incident to the relevant authorities, property owners, or managers where the accident took place.
Step 2: Evidence Preservation - Take photographs of the accident scene, any hazards or dangerous conditions, and of the injuries themselves. Gather witness contact information and preserve any relevant physical evidence, such as defective equipment that may have contributed to the injury.
Step 3: Legal Consultation - Consult with a specialist personal injury lawyer immediately to ensure compliance with notice requirements and deadlines. Early legal advice is crucial for children's claims due to their complexity and the specific requirements when it comes to representing minors.
Step 4: Notice Requirements - Ensure all required notice forms are served within the necessary timeframe. Different claim types have varying requirements, so speak to your lawyer about how to proceed.
Step 5: Medical Assessment - Arrange comprehensive medical assessments with appropriate specialists to document your child's injuries, prognosis and recovery plan.
Step 6: Evidence Compilation - Work with your legal team to compile everything you’ll need. This might include detailed medical reports, accident reconstruction evidence, expert testimony, receipts for expenses, and witness statements.
Documents to Keep
- All medical records and reports
- Photographs of injuries and the scene of the accident
- Witness contact information and their statements concerning the incident
- Receipts for medical expenses and other costs
- School reports and academic records (for future loss calculations)
- Correspondence with your insurance provider
Red Flags: Things to Watch Out For
- Pressure to settle early for less than your child deserves
- Injuries not being assessed correctly
- Failure to consider long-term consequences
- Rushed settlement negotiations
- Lack of a thorough investigation into who was liable
When to Seek Professional Help
Children’s personal injury cases are complex and require legal specialists to take all the right steps to ensure success. Professional guidance ensures the claim is properly managed, deadlines are met, and fair compensation is secured for long-term needs.
When to seek expert legal advice:
- Serious or long-term injuries that require ongoing care or rehabilitation
- Complex liability issues involving multiple parties or institutions
- Medical negligence claims that require expert medical evidence
- Institutional abuse or systemic failures, where proving liability is complicated
- Insurance or claim disputes with potential time-limit concerns
Early legal support helps:
- Preserve crucial evidence and meet all legal deadlines
- Avoid low settlement offers or incomplete documentation
- Ensure court approvals and the management of funds are handled correctly
- Protect the child’s present and future interests
Key Takeaways
- Age Limits: Children have until the age of 21 to make a personal injury claim.
- The Role of the Litigation Guardian: Parents acting as litigation guardians carry significant legal responsibilities. They are there as guides and to do their best for the child.
- Mandatory Court Approval: All settlements require approval from a court
- Complex Calculations: Future care costs and loss of future income are not easy to calculate. They require expert evidence and strong legal representation.
- Early Legal Intervention: Immediate professional advice is essential to preserve evidence, meet deadlines, and navigate the complex requirements.
- Get the Law On Your Side: Queensland's legal framework provides extensive safeguards for injured children, including professional fund management and court oversight of all major decisions affecting their compensation.
If you want to know more about how Smith’s Lawyers can help you with your child’s injury claim, contact us online, call 1800 960 482, or request a free callback via the form below. We offer free initial advice and 100% risk-free claims with no upfront costs and our No Win, No Fee, No Catch® promise. We'll give you straight answers, clear advice, and the confidence to take the next step knowing your rights and your financial future are protected.
