Individuals who are injured in a motor vehicle accident, and are under the age of 19 are considered minors in New Brunswick. If a minor is injured in a motor vehicle accident, they can still bring a personal injury claim. However, these claims differ procedurally in some ways from a personal injury claim on behalf of an adult. 

Appointing a Litigation Guardian

Minors must have a litigation guardian appointed to make the decisions throughout the personal injury claim. Although the lawyer represents the minor, the lawyer works with the litigation guardian to move the claim forward. It is the litigation guardian who instructs and directs the lawyer during the process of bringing a claim. 

A litigation guardian can be of any relation to a minor. Often it is the parent of the minor who acts as litigation guardian. However, the New Brunswick Rules of Court require that the litigation guardian must have no conflict of interest with the interests of the minor. It is therefore sometimes necessary to appoint an aunt, uncle, or grandparent instead of the parent where there is a potential conflict of interest. For example, if the minor was a passenger in a vehicle being driven by the mother, and the mother ran a red light and caused the car accident, the mother would then be the Defendant in the minor’s claim. It would therefore not be appropriate for the mother to act as litigation guardian for the minor’s claim.

A litigation guardian is also liable to personally pay any costs awarded against the litigation guardian or against the minor as part of the personal injury claim. Before appointing a litigation guardian, the minor’s lawyer will review with the proposed litigation guardian the responsibilities and risks in detail. The lawyer will also assess whether the proposed litigation guardian is appropriate and complies with the requirements under the Rules of Court. The litigation guardian will then need to state in writing that they are willing to act as litigation guardian and that they accept the duties of a litigation guardian pursuant to the Rules of Court.

Involving the Minor in the Process

It is important to remember that even though the lawyer gets directions from the litigation guardian, the minor is still the lawyer’s client and is ultimately the party for whom the claim benefits. Therefore, it is important for the lawyer to ensure that the minor understands the decisions being made on their behalf, and to include the minor in the process in a way commensurate with the minor’s age and capacity.

The way the minor is included in the process will differ depending on the age of the minor. An effort should still be made to explain the big decisions or steps in the claim to young children. For older children and teenagers, it is important for the lawyer to facilitate the minor’s inclusion in more of the decision-making process. This can look like group meetings with the litigation guardian and the minor to discuss the minor’s wishes before the litigation guardian provides instructions.  It is also important to ensure that the minor understands the decisions being made by the litigation guardian and their impact on the claim, especially with older minors; conflicts can arise between the wishes of the minor and what the litigation guardian feels is in the minor’s best interests. It is up to the lawyer to guide both the litigation guardian and the minor client through these conflicts and try to reconcile any differences of opinion.

Unique Limitation Periods for Minors

Minors are not subject to the usual limitation periods for bringing a claim. For car accident claims, the limitation period for minors normally begins at the age of majority, as opposed to from the date of the accident. However, it is still important to retain a lawyer as soon after the car accident as possible to ensure that the necessary evidence is preserved and collected. 

How Long Does a Car Accident Claim Take for a Minor?

It can sometimes take longer to resolve car accident claims where the injured individual is a minor. This is because it is often difficult to determine the extent of injuries that occur when the individual is young. Therefore, it may take longer to thoroughly investigate and treat the injuries from the car accident. It is important not to settle the claim until the long-term impacts of the injuries are understood. An experienced personal injury lawyer will often involve medical specialists, life care planners, and vocational experts to ensure that the full impact of the injuries is understood and assessed. 

Court Approval of a Settlement for a Minor

Any settlement reached between parties on behalf of a minor must be approved by the Court. This provides an extra layer of protection to ensure that any resolution of the claim is in the best interests of the minor. The minor’s lawyer will need to submit documents to the Court showing how the settlement was determined and that the settlement is fair based on the evidence. The Court will then decide whether or not to approve the settlement amount. 

What Happens to the Minor’s Settlement Funds?

Once the settlement is approved by the Court, the settlement funds are usually paid to the Court until the minor reaches the age of majority. Then, the individual can show proof of age to the Court and the settlement funds will be released. The settlement funds are held in an interest-bearing account for this time period, and will therefore accumulate some interest which will be included in the amount paid out to the individual. 

There can be some exceptions to this practice depending on the nature of the damages that make up the settlement amount. In addition, there may also be options for structured settlements where money is paid to a structured settlement provider to administer.

What Happens if a Minor Reaches the Age of Majority During the Course of the Litigation?

In some situations, the minor may reach the age of majority before the claim is resolved. The litigation guardian will then be removed, and the individual will direct their own claim going forward. This highlights the importance of involving the minor in the claim even while a litigation guardian is appointed. In cases where the minor takes over the direction of the claim at the time of majority, it will be difficult for the individual to make decisions on the claim if they have not been involved up to this point. 

The Importance of Choosing a Lawyer With Experience Representing Minors

It is important to choose a lawyer who has experience representing minors for personal injury claims. There are unique legal considerations for car accident claims where the injured individual is a minor. These include ensuring the appropriate specialists and experts are engaged; determining the best timeframe for resolving the claim; and ensuring the best settlement arrangements are made on the minor’s behalf. It is also crucial to choose a lawyer who can explain legal concepts at a level appropriate to the minor’s age and capacity to understand. At Melanson Law, we have over 35 years of experience representing minors for car accident claims. We have represented children at every age, from infants to young children to adolescents. We have extensive experience in getting the best possible results for our clients for these types of claims. Give us a call today for a free consultation to discuss car accident claims for minors in more detail.