This winter, we have had periods of extreme cold that have left their mark. Indeed, we have seen an increase in the number of cases of frostbite, especially among young children.
What happens if your child comes home from daycare with frostbite? Who is responsible for this? Me Lambert gives you explanations and provides you with information on how to file a civil lawsuit.
Parental authority: your obligations as a parent
First, it is necessary to understand the concept of parental authority, which establishes the rights and duties of parents towards their children.
The Civil Code of Québec provides that holders of parental authority have the obligation, among other things, to supervise, educate, maintain and feed the child. They also have a duty under the Youth Protection Act to ensure the safety of the child.
Under article 601 of the Code, this parental authority may be delegated temporarily, leaving your child under the responsibility of a day-care centre or a babysitter. When the child is in their care, they are responsible for the child’s well-being. They act in loco parentis, that is, in the place of the parents.
Civil recourse following frostbite
Your child returns home with serious frostbite on his hand. To be entitled to legal recourse against the daycare, you must demonstrate the existence of the three elements of civil liability: fault, damage and the causal link between the two.
Establishing fault
In determining the existence of a fault, the Court will consider whether the person who was responsible for your child (for example, his teacher) took reasonable precautions to guard against a sufficiently probable danger. Indeed, it is not a question of preventing any possible danger, but of any foreseeable danger.
In order to make this determination, the Court will consider various factors such as the child’s age, physical and mental abilities and the activity in which he or she participated.
Take the case of an educator who supervises 4-year-olds playing in the snow for half an hour.
The educator must pay much more attention to frostbite than if it were a short walk between two buildings belonging to the daycare. In the event of a prosecution, it is she who will have to prove that she took the necessary precautions and that she acted diligently or that the danger was not foreseeable.
You can also sue the daycare if it does not comply with the relevant regulations, such as the Educational Childcare Act.
For example, if the daycare received more children than it was licensed, the educator may have been overwhelmed by the number of children and may not have been able to provide adequate supervision. In addition, please note that you can continue the daycare even if the fault was committed entirely by the educator, in the course of her work.
Proving harm
Next, you will need to demonstrate the harm suffered by your child, which can range from inconveniences such as pain or aesthetic harm, to much more serious cases, such as amputation of the affected part of the body.
In determining the damage, the Court may refer to a medical expert opinion.
In some cases, you, as a parent or guardian, may make claims for yourself; for example, for anxieties and loss of enjoyment of life.
Establishing causation
Finally, you will need to prove that the frostbite suffered by your child was caused directly by the wrongful action or inaction of the person who had custody of him.
For example, if the educator has been negligent and has not supervised your child well and the child has removed his gloves and now has frostbite on his fingers, the causal link can be established. If the teacher had respected her duty of supervision, she would have been careful to put the child back on his gloves and the frostbite would not have occurred.
On the other hand, the Court will also consider whether there are other factors that explain or have contributed to the damage or its aggravation.
Imagine a case in which the child suffers from frostbite in an inconspicuous place, such as the toes, and does not complain. You only notice it when you get home, but you wait too long to take it to the emergency room. You will then have contributed to the harm caused and the responsibility will be shared or perhaps even entirely yours, depending on the circumstances.
Getting compensation for your child
If your child has frostbite and you suspect it was caused by negligence on the part of the daycare or its employees, you may be entitled to compensation. Act quickly and be careful to properly document the harm your child has suffered.
Remember that our articles contain general explanations of the law and the situations mentioned are illustrated only as examples. The particular circumstances of your case can greatly vary your chances of success and a lawyer will help you maximize them. Contact our office now so that we can do an analysis of your file.
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