Claiming for personal injury in road traffic accidents on behalf of a child

This article is designed to help parents and guardians understand the process of bringing a personal injury claim on behalf of a child under the age of 18. Below, we answer some of the most frequently asked questions we receive from parents and guardians when considering whether to bring a claim.

A children’s accident claim is a legal process where compensation is sought for injuries suffered by a child in an accident. This can include any type of accident, such as a road traffic collision, provided the child has been injured through the negligence of someone else. A claim is brought on the child’s behalf by a ‘Litigation Friend’, usually a parent or guardian, as children cannot commence legal claims themselves until they are 18.

The process for claiming compensation for any injury involves the following steps:

The compensation awarded to a child will depend on the severity of their injuries and the impact on their life. Compensation is agreed or awarded as a whole but is made up of the following:

Yes, you can still bring a claim if your child may be considered partially at fault for the accident, depending on the circumstances.

Under the Law Reform (Contributory Negligence) Act 1945, where a person suffers damage which is partly his own fault and partly the fault of another, a claim can still be made, but the amount of compensation will be reduced to such extent that a court considers to be “just and equitable” having regard to the child’s share in responsibility for the damage. This is known as “contributory negligence”.

The principle for apportioning responsibility between the child and another person partly at fault for the accident involves considering the ‘causative potency’ of the child’s actions and their moral blameworthiness. This will always depend on the circumstances of the individual claim. The child’s age will also be a relevant factor in determining their blameworthiness for example, a five year old will not be expected to be held at the same standard of care as a 13-year-old.

Compensation is calculated based on the severity of the injury, the impact on the child’s life, and future needs. Medical professionals will be instructed to prepare reports detailing the injuries sustained, the prognosis of those injuries and whether there are any long term consequences. These reports are crucial in calculating the appropriate level of compensation.

In most personal injury claims, medical examinations are necessary to assess the extent of the child’s injuries. These usually involve a physical examination and a conversation with the child (if appropriate) and their parents about the extent of any ongoing symptoms and the impact of the injuries on their education, hobbies and everyday lives.

Depending on the injuries sustained, there may need to be more than one assessment for example, if the injury requires ongoing treatment or therapy, there may need to be updating assessments over time. Furthermore, if there are multiple injuries then more than one type of expert may be instructed. For example, if a child sustains a fractured leg, internal injuries and is suffering psychologically from the accident, it may be necessary for medical professionals in orthopaedic surgery, general surgery and psychology/psychiatry to examine the child and prepare reports.

The results of these examinations are crucial in determining the appropriate level of compensation.

The general time limit for bringing a personal injury claim in England and Wales is three years from the date of the accident. However, for a child, the three year time limit does not start until their 18th birthday, meaning a claim can be brought up to their 21st birthday.
However, it is important to instruct a solicitor as soon as possible after the accident to ensure that evidence is gathered and that any potential witnesses can be contacted.

The length of time it takes to resolve a claim varies. For straightforward cases where liability is clear and the injuries resolve fairly quickly, the process may take up to 12 months to resolve. However, if the case is complex or involves litigation, it could take longer. More complicated cases or those involving significant injuries such as child brain injury claims, may take several years to resolve.

A Litigation Friend is an adult (usually a parent or guardian) who acts on behalf of a child in legal proceedings. Since children cannot represent themselves in court, a Litigation Friend effectively steps into the shoes of the child.

A Litigation Friend must complete a ‘Certificate of Suitability’ confirming that they are able to conduct proceedings competently and fairly and that they have no adverse interest to those of the child. This means that if a parent is responsible or partially responsible for the accident, they cannot act as the child’s Litigation Friend.

Being a Litigation Friend involves overseeing the legal process, helping to gather evidence, communicating with the solicitor, making decisions about the claim and generally ensuring that the child’s best interests are considered throughout the claim.

In some cases, if the child’s injuries are particularly severe or their recovery is taking longer than expected, interim payments may be requested from the responsible party’s insurer. These are partial payments made during the course of the claim and can be used for specific reasons for example, to help with costs of rehabilitation or care, or they can be sent as a ‘general interim’ which could be used for anything in the child’s best interests.

Yes, parents can include within their child’s compensation claim, a claim for reasonable expenses incurred as a result of the child’s injury, such as travel costs to medical appointments, loss of earnings or gratuitous care if the parent has taken time off work to care for the child. Any expenses that are recovered as part of the claim and intended to be repaid to the parent after the claim has concluded, will need to be approved by the Court as part of the approval process.

Most personal injury claims are handled on a Conditional Fee Agreement basis, otherwise known as a no win, no fee agreement. This means that if your claim is unsuccessful, you won’t have to pay the solicitor’s fees. However, if the claim is successful, a percentage of the solicitor’s fees will be deducted from the compensation awarded.

As an extra level of protection, any settlement agreed between the parties on behalf of a child and any deductions from their compensation including expenses incurred by a parent or guardian, must be approved by the Court. This will involve attending a short hearing in front of a Judge.

The Judge will review all the paperwork and ensure that the settlement is fair and in the child’s best interests. The Litigation Friend and in some cases the child will need to attend the hearing, alongside their solicitor and usually a barrister.

Pursuing a personal injury claim on behalf of a child can be complex, but it is often an important step in ensuring that your child receives the compensation they need.

By seeking expert legal advice and working with a solicitor experienced in these claims, you can help ensure that your child receives the appropriate level of compensation.

If your child or teenager has been injured in a road traffic accident, speak to one of our experienced personal injury solicitors today to find out more about your options and how we can help you get the compensation your child deserves.