The Queensland Government is currently considering a series of reforms to the law relating to claims for personal injury to children. The amendments to the law include the prospect that:
- A child may lose his/her right to claim compensation against a person who wrongly causes injury to them by the simple signing of a "waiver" of liability by a parent. This waiver could be presented to the parent for signing at any time and would absolve the wrongdoer from fault, no matter how bad the wrongful conduct;
- A child’s entitlement to bring a claim may be limited to as little as three years after the event occurred, rather than allowing a child to reach 18 years of age before a claim needs to be commenced;
- When a child is exposed to an "obvious risk", he/she may be held responsible in the same way an adult is responsible if they do not heed that "obvious risk".
The current push to change liability law in Queensland is driven by the need to reduce insurance premiums. The Government is attempting to achieve a balance between the rights of the individual to claim compensation and the individual’s obligation to care for their own safety. A wrongdoer must be responsible for his/her conduct, but the person who is injured must also be responsible and accept the risk of the activities in which they engage. A package of reforms is currently being prepared. Many of these reforms relate to the responsibility of adults and are reasonable.
But children are the most vulnerable members of our community. No Government, on any economic basis, can justify interfering with the rights of children. Children should be protected by Government, not exposed to the risk of injury and exploitation.
In many cases, children are injured when people who are charged with their welfare, either formally or informally, do not take appropriate precautions to ensure their safety. Pharmaceutical companies selling drugs for children, car manufacturers, toy manufacturers and theme park operators providing rides for children are all legally responsible for the safety of our children.
The proposed changes will undermine the very basis upon which this responsibility rests.
Some parents are irresponsible when it comes to the care of their children. This is not the child’s fault.
The law as it currently stands will compensate a child who is injured in circumstances where the wrongdoer has failed to take adequate care for the safety of the child. This does not mean that every injury to a child requires compensation or that every theme park operator will be responsible for every injury to a child.
But it does mean that people who are responsible for a child must take reasonable care for the safety of that child.
The punishment of a person who fails to take reasonable care is the imposition of legal liability. The risk that a person may be punished by the imposition of legal liability is a preventative measure that protects children from exploitation and unsafe practices.
The introduction of a system of "waivers" will extinguish a person’s right to make a claim for personal injuries. It is reasonable that adults who sign waivers and who have a clear understanding of what rights they are giving away should lose those rights. But allowing a waiver to operate against children reduces the incentive for carers to properly care for the safety of children.
For example, a child at a theme park is injured because the ride malfunctions and jolts, causing the child to fall. The ride malfunctioned because of inadequate maintenance. The child’s parents signed a waiver in order for the child to be able to go on the ride. The child suffers a broken neck and becomes a paraplegic. The child should not be barred from a legal remedy because the parents signed a waiver.
The Queensland Government has been responsible in making significant changes to the law of negligence to help reduce insurance premiums. These have included significant changes to the law of medical negligence to ensure that doctors are adequately protected against rising insurance premiums.
But let’s leave children out of it. The law regards adults in the community as being responsible for the safety of children. The law should stay that way. Protect our children’s rights.
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