Drivers have a duty of care to passengers and children….
This not only means driving with due care and attention to what is going on outside of the vehicle, but also what is going on inside the vehicle. Drivers across Canada are obligated to ensure that children under 16 wear their seatbelts even if they protest.
[1] In Galaske v. O’Donnell, the Supreme Court of Canada stated that “coexistent with the right to drive and control a car is the responsibility of the driver to take reasonable steps to provide for the safety of passengers.
Those reasonable steps must include not only the duty to drive carefully but also to see that seat belts are worn by young passengers who may not be responsible for ensuring their own safety.”[2] Here in BC, traffic laws mandate that drivers must not drive a motor vehicle on a public roadway unless all their passengers are wearing seat belts or are secured in an approved and appropriate child restraint system or they may be subject to a fine.[3]
The British Columbia Court of Appeal has recently elaborated on the duty of care to minor occupants of vehicles….
In 2011 the British Columbia Court of Appeal considered the case of Vedan v. Stevens. The defendant pick-up truck driver allowed four children to ride in the open bed even though there was room for them inside the truck. While driving, one of the children stood up and was either pushed, jumped or fell out of the back of the truck and sustained injuries when he hit the ground and was subsequently hospitalized. No witnesses gave evidence about what caused the child to fall out of the open pick-up.
The trial judge apportioned 75% of the liability onto the driver because he failed to ensure that the children were safe and 25% to the 12 year old child because he rode without a seatbelt and stood up, despite having learned about vehicle safety.[4] However, on appeal, the decision was overturned and the Court ruled that the injured child could not bear part of the blame for his injuries and the driver was held 100% liable. Thus if you are driving with passengers in British Columbia, it is wholly the responsibility of the driver to ensure all vehicle occupants have seatbelts on. This will be especially true for younger passengers.
Can a minor bring an action to court?
Technically, no. It is the responsibility of a minor’s parent or guardian to pursue any claims for personal injury or wrongful death.[5] Once an action is commenced, the minor must act through a “litigation guardian” who is appointed according to the Supreme Court Civil Rules.[6] The appointed litigation guardian must have no adverse interests. Usually the guardian is a parent or relative, but there is not requirement that the potential guardian be related to the minor. If there is no suitable litigation guardian the Public Guardian and Trustee may consider taking the role if it is in the child’s best interest.[7]
What if a child is offered a settlement?
When a child is injured as a result of another individual’s negligence, the person (or the person’s insurer) may offer money to “settle” any legal claims the child may have against them. Because a child is not in a place to make these decisions on their own, the Public Guardian and Trustee must approve all personal injury and wrongful death settlements for minors. This is to ensure that the settlement provides adequate compensation. According to the Infants Act, the Public Guardian and Trustee may approve settlements of $50,000 or less on the child’s behalf.[8] If however, the settlement is over $50,000, the Public Guardian and Trustee must make a recommendation to Court as to whether the settlement is adequate. The Court then makes the final decision whether the settlement will be approved.[9]
Who is an “infant” for the purposes of a settlement under the Act?
Both “infant” and “minor” refer to an individual under 19 years of age in British Columbia.
What happens to any money awarded?
Settlements and judgments for minors are paid to the Public Guardian and Trustee. A separate account is established for each minor who receives funds.[10] The Public Guardian will consider all requests from the minor of their parent or guardian to release funds held in trust.[11] According to s. 14 of the Infants Act the Public Guardian has a broad discretion to use all or part of a minor’s fund for his or her “maintenance, education or benefit.” If the Public Guardian does not believe the release of funds is in the best interest of the child, it will be withheld.
If you disagree with a decision, a review may be requested. When a child has been catastrophically injured, the Public Guardian will consider both current and future needs in an attempt to plan for lifetime care and will consult the family about ongoing personal care, rehabilitation, or educational decisions.[12] While held, the money is managed by the British Columbia Investment Management Corporation. When the minor reaches the age of majority, and where they are capable of managing his or her legal and financial affairs, the funds will be paid out in a lump sum.[13]
To learn more about your child’s trust fund, visit the publication “Your Child’s Trust Fund: A Guide to Working with the Public Guardian and Trustee” available at: http://www.trustee.bc.ca/pdfs/CYS/childtrustfund.pdf
More Resources:
Online BC Personal Injury Guide
[1] Galaske v. O’Donnell, [1994] S.C.J. No. 28.
[2] Ibid.
[3] Motor Vehicle Act, RSBC 1996, c 318, s. 220.
[4] Vedan v. Stevens, 2010 BCSC 1735 (CanLII); Vedan v. Stevens, 2011 BCCA 386 (CanLII).
[5] Michael W. Biggs [et al.] British Columbia Motor Vehicle Accident Claims Practice Manual (Vancouver: Continuing Legal Education Society of British Columbia, 2011) Looseleaf, 16-12.
[6] Supreme Court Civil Rules, BC Reg 168/2009, (Court Rules Act), Rule 20-2.
[7] Biggs, supra at 16-13.
[8] Infants Act, RSBC 1996, c 223, ss. 40 – 42.
[9] Public Guardian and Trustee of British Columbia “Guardianship and Trust Management for Chilhttp://www.trustee.bc.ca/services/youth/infant_settlements.html
[10] Biggs, supra at 16-39.
[11] Ibid., at 16-40.
[12] Ibid.
[13] Ibid., 16-42.
