In British Columbia, when an adult is injured in a car accident and seeks to claim compensation for sustained injuries from ICBC, they must file a lawsuit within two years of the date of the accident. If they fail to file in the two-year period, they lose the legal rights to make a claim against ICBC. However, when a child is injured and makes a claim against ICBC, the guidelines shift to accommodate their age and understanding.
In these instances, children can’t be expected to understand the concept of loss, retain a lawyer and file a lawsuit within two years. Consequently, even if nobody has taken steps on their behalf, they remain unpunished. Instead of placing the same two-year requirement on children as it does on adults, BC law says that children have to file their lawsuits within 2 years of their 19th birthday, i.e. on our before their 21st birthday. There is one caveat to this: if ICBC is not adequately funding the treatment for the child after the accident, a lawsuit for Part 7 benefits (these are ICBC rehab benefits) must be brought within two years of the accident or two years from the last Part 7 payment.
What does this all mean if your son or daughter has been hurt in an accident? See below for some answers to frequently asked questions by our clients.
What if I want to start a lawsuit for my child before he turns 21?
You can start a lawsuit at any time before the limitation date. It is a good idea to file the lawsuit early if ICBC is denying fault for the Accident and you want to make sure to get the police file and liability documents before they are destroyed.
Who represents the child in the lawsuit?
Someone will be designated the child’s litigation guardian. That person will instruct the lawyer on behalf of the child. Usually, that person is one of the child’s parents but sometimes it is another family member. If the child does not have a family member who is suitable to be the litigation guardian, the Public Guardian, and Trustee’s office will step in.
What if the accident was my fault, can I still represent my child?
If you were driving the car when the accident happened or there is any chance the accident was your fault, then you should not be your child’s litigation guardian because your child may need to name you in the lawsuit.
What happens if the file settles before the child turns 19?
If you settle before the child is 19, the lawyer will have to get approval of the settlement amount and fees from the Public Guardian and Trustee’s office. If the amount is over $50,000, the lawyer will need court approval as well. Once it is all approved and ICBC sends the funds, your lawyer will give the funds to the Public Guardian and Trustee’s office to hold on to until the child turns 19. The child can access the money once the child turns 19.
Should I wait until my child is 19 to get a lawyer?
No. We recommend that you speak to a lawyer right away after your child’s accident. The lawyer will ensure ICBC is funding appropriate treatment for your child and that nothing is said to ICBC which could compromise your child’s claim. A lawyer will also make sure that the limitation for your child’s Part 7 ICBC benefits does not get missed.
If your child has been in an accident and you would like a free consultation with an ICBC lawyer, call Simpson, Thomas & Associates today at 604-689-8888 or toll-free at 1-800-668-3788.