By Amy Burr, Director and Senior Solicitor
What happens in a case when someone under 18, or without capacity to manage their own affairs, is injured and a claim can be made for damages? In some instances, the ‘clock stops’, which means the time to make a claim is paused until the injured person reaches the age of 18, because being underage is considered a disability for legal purposes. In other instances, it is possible for a claim to be made before then. If an adult is injured, medical evidence is usually required to establish whether they are able to manage their own affairs.
In either case, somebody else will need to be ‘next friend’ or ’litigation guardian’. They may be somewhat silly titles, but are very serious roles! They need to run the litigation as though it is their own, and they might even have to take on some financial risk if it doesn’t work out. If under any legal disability, courts usually have to approve any settlement or compromise reached between the parties.
To do that, extensive evidence from doctors and other relevant experts is needed, and the litigation guardian needs to provide their thoughts on the case to the court (through an affidavit).
Courts have been known to send applications for approval away to be dealt with at a later date. This might happen if the judge or magistrate is not satisfied that the injured person’s needs are fully met, or if the injuries aren’t stabilised and further treatment might make a difference. Approved settlements to an injured person are often paid to the Public Trustee.
Sometimes the litigation guardian is appointed as trustee of the funds, but Courts generally like to see somebody else manage the money. The funds can be accessed before a child reaches their 18th birthday for things like medical treatment, school excursions and other educational opportunities. If somebody is not a minor but cannot manage their own affairs, the trustee manages the funds and takes care of many aspects of the injured person’s life, including nursing care, equipment and the like.