Children and personal injury claims in Tasmania: A defendant’s perspective on time limits and litigation risk

Children are particularly vulnerable to injury in schools, recreational environments, public places and on our roads. In Tasmania, personal injury claims involving children raise distinct legal and procedural issues that insurers and defendants must carefully manage. These include extended limitation periods, court oversight of settlements, and the unique evidentiary and actuarial difficulties associated with assessing childhood injuries. We suggest practical strategies for insurers and defendants to manage long-tail risks effectively.

Common risk areas: public spaces, schools and sports

Children are more often claimants in public liability and institutional negligence cases in Tasmania. Insured entities such as schools, councils, sporting clubs and care providers face a higher duty of care where children are involved. Common scenarios include:

• playground or recreational injuries;
• sports supervision failures; and
• defective public infrastructure.

Although the Civil Liability Act 2002 (Tas) provides defences for obvious risks or contributory negligence, these are harder to establish when the plaintiff is a child. Courts are reluctant to attribute contributory negligence to young children and may find that risks which would be obvious to adults were not reasonably appreciated by a child.

Defendants and insurers involved in defending such claims face several issues such as:

• The child may not be able to properly articulate their symptoms or limitations, especially in psychological injury cases.
• Courts may take a more generous approach to causation and foreseeability when dealing with child plaintiffs.

Extended limitation periods

Under the Limitation Act 1974 (Tas), the usual three-year limitation period for personal injury is suspended while the claimant is a minor (s 26). The clock only begins to run once the child turns 18, meaning that a claim can be filed up until the age of 21.

This creates a significant long-tail exposure for defendants and insurers, who may face claims arising from incidents that occurred over a decade earlier. The implications include:

• loss of evidence, including faded memories, retired staff, or unavailable witnesses;
• incomplete or missing documentation, especially where the incident was not initially considered serious; and
• difficulty in assessing long-term medical impacts or forecasting future economic loss.

A child does not have to wait until they are 18 to resolve a claim. A litigation guardian can bring an action on behalf of the child. However, any settlement of a child’s claim will need to be approved by the court to ensure that the settlement is in the best interests of the child.

Judicial oversight and settlement approval

Tasmanian courts retain supervisory powers over any personal injury settlement involving a minor. A child must have a litigation guardian to act on their behalf. Regardless of whether an action for damages resolves by negotiation or formal litigation, the court must:

• approve the settlement as being in the child’s best interests;
• review the adequacy of medical and actuarial evidence; and
• ensure the funds are appropriately held in trust until the child reaches majority.

This procedural safeguard can potentially restrict an insurer’s ability to reach early or commercial settlements — especially where the child’s long-term prognosis is unclear. Insurers should also be mindful that the Supreme Court may reject settlements that undervalue pain, suffering, or future loss of opportunity, even if both parties agree to terms.

Typically, a child’s settlement funds are held in trust, subject to conditions about access and monitored to prevent dissipation or misuse. Therefore, it is important for defendants and insurers to account for funds management fees which are considered as a head of damage and are often deducted from the settlement amount. These include initial establishment fees, ongoing management fees and additional charges.

Insurers and defendants should account for funds management early in negotiations and ensure the cost of funds management is clearly disclosed in any proposed settlement and consider providing an additional allowance to account for known trustee fees.

Strategic claims management for insurers and defendants

Personal injury claims involving children present unique practical and legal challenges. Insurers and institutional defendants should adopt the following strategies:

• Preserve evidence early
  Capture photos, incident reports, CCTV (if available), and witness details immediately — even if the injury seems minor at the time.

• Maintain long-term records
  Archive insurance policies, risk management documents, and employee records to account for future claims, particularly those arising in schools or councils. It is important to note that certain types of records need only be kept for up to seven years, which may pose issues if there is a significant long-tail exposure period.

• Engage specialists early
  Use paediatric, psychological, and other experts to assess the evolving impact of the injury, especially in high-value cases.

• Prepare for court approval
  Anticipate judicial scrutiny of settlement terms and ensure claims reserves reflect the potential for upward revision.

• Educate insured entities
  Ensure schools, clubs, and councils understand the importance of proactive supervision, infrastructure maintenance, and prompt reporting.

Conclusion

Children are afforded broad procedural protections under Tasmanian personal injury law but these same protections create real exposure and complexity for defendants and insurers. Motor accidents, school incidents, and public liability claims involving minors may not surface for years after the event. Proactive risk management, early evidence preservation, and informed claims handling are key to ensuring that child injury claims are dealt with fairly, efficiently, and in a way that withstands judicial scrutiny.