COLUMN: Accident settlements – how are your child’s interests protected?

The unthinkable happens and your child has been injured in an accident.

  • Nov. 16, 2013 8:00 p.m.

Legal-Ease by Doug Lester

The unthinkable happens and your child has been injured in an accident.  Thankfully, within months of the accident he has fully recovered.

You and the insurance company have come to what you believe is a fair settlement that will award your son $10,000 to compensate for his pain and suffering.  You know that settlements are typically “final,” but you soon find out that despite your agreement with the insurance company, the settlement is subject to the approval of some mysterious third party known as the Public Guardian and Trustee. What gives?

Ordinarily, an injured party may simply enter into a settlement with an insurer and then expect settlement funds to be forthcoming.  However, due to legislation that protects infants, involvement of the office of the Public Guardian and Trustee (PGT) to approve a settlement is an additional step.  In B.C., an infant is any person under the age of 19.

At its core, the purpose of the Public Guardian and Trustee is to protect the interests of infants by ensuring that any settlement is fair and just in all the circumstances. The size of the award any child receives should not be predicated upon the parents’ perceived knowledge of current personal injury awards. The PGT attempts to place all children on a level playing field.  Furthermore, since infants cannot enter into legally binding contracts, the involvement of the PGT also adds security, certainty and finality to settlements involving infants.

Shifting back to our hypothetical from above, for your negotiated settlement of $10,000 to be approved, you or your lawyer would need to make written submissions to the PGT which would include details of the injury, case law supporting the figure you have negotiated, as well as an application fee.

Had this been a more serious injury involving a proposed settlement of more than $50,000, the PGT would be required to provide statutory comments, which would then have to be presented to a judge at a hearing.  Furthermore, if the PGT were not to approve the proposed settlement, a court order would be required to approve the settlement – and the hearing would likely be contested.

Even after an approved settlement, the PGT role is not complete.  The award is for the infant, and not the parent.  As such, the funds will be held in trust by the PGT and then paid directly to the infant once they reach the age of 19.  In some circumstances, parents may have access to some of these funds for the maintenance of their child, but such access is strictly regulated by the PGT.

Personal injury settlements are complex matters, and often require an extensive knowledge of relevant case law and legal proceedings to ensure a fair payout.  When infants are involved this process is further complicated.

Doug is a partner with RDM Lawyers LLP, practicing in the areas of personal injury law and labour and employment law.  Comments can be sent to legalease@abbynews.com.