Accidents involving children must be handled delicately and patiently. The injury and hospital visits are traumatizing on their own, and the child should be protected as much as possible from the effects of a lawsuit. Competing with the desire to insulate the child from the lawsuit is the need to provide as much treatment as possible to minimize the effect of the injury and to monitor the child through adolescence and all developmental milestones.

Special evidence must be developed to counter un-realistic expectations.

There are special considerations involved in advancing case on behalf of children. Many times they play a role in their own injury. However, they are just children, and special evidence must be developed to counter un-realistic expectations. Were warning signs written in a language above their reading level? Did the particular child have the cognitive ability to appreciating the risk and consequences of the given activity? We have been successful, for example, in advancing claims against school boards for improper shop projects, improper playground equipment, and improper supervision on school trips.

We’d like to help with your recovery and future.

Children are not small adults, and the law does not treat them as such. During early childhood, each child develops at different times and different rates in physical stature, abilities, skills, knowledge, as well as socially, emotionally, and cognitively.

When a child is injured, our first objective is to help the family access specialists who focus on children’s needs and are best able to provide treatment. These disciplines include paediatric neuropsychologists, psychiatrists, speech language pathologists, occupational therapists, youth support workers, physiotherapists, and personal support workers. Parenting an injured child is new territory for most every parent, and specialists can provide guidance on how to parent a child who has cognitive or psychological injuries.

Involving specialists early in a child’s recovery is crucial for a number of reasons. For example, psychologists and occupational therapists can attend school meetings to help the child’s principal and teacher understand the nature of the child’s injury, facilitate a proper re-introduction of the child into class, develop independent learning plans (IEP’s) and support the treatment objectives that are trying to be reached outside of school. At times, they can be fierce advocates on behalf of your child when the school lacks understanding or fails to provide accommodation.

Some services are provided publicly. In York Region and Simcoe County, for example, Mackenzie Health Centre for Behaviour Health Sciences provides out-patient services for children with acquired brain injuries. In Toronto, those services can be obtained through Holland Bloorview Kids Rehabilitation Hospital. Many work plans provide some level of funding for services for injured family members.

For children who are injured by an automobile, they have significantly more funding available to them through automobile accident benefits than children who must rely on publicly funded services. So, it is critical to meet with a lawyer to examine the extent to which an automobile was involved in an injury and whether a child may qualify for such benefits. It does not matter if the child was in the vehicle, or on their bike, or walking across the street, and it does not matter if the vehicle fled the scene; if a vehicle is the direct cause of the child’s injury, then they may claim accident benefits.

For children who do qualify for accident benefits, there are different amounts of funding available for treatment depending upon the severity of the child’s injury and depending on any additional benefits purchased by the policy holder. The standard automobile policy, which everyone has, provides for different amounts of funding depending on the severity of the child’s injury. There are three categories: minor injuries, moderate injuries, catastrophic injuries.

A catastrophically injured child is one who meets the definition set by the insurance industry. The term “catastrophic” is not a medical diagnosis.  According to the standard automobile policy, catastrophically injured children are eligible for $1,000,000 in medical rehabilitative benefits and $1,000,000 in attendant care benefits, over the course of their lives, and includes funding for a case manager of the parent’s choosing to help co-ordinate the treatment and benefits. The available funding may be more depending on the policy. There are various ways a person may be considered to have catastrophic injuries and some of those are unique to children. They are listed on a special insurance application form called the OCF-19 Application for Determination of Catastrophic Impairment.

Whether the child’s injuries meet the test of catastrophic impairment is often a point of serious contention. They are technical tests but still infused with degrees of subjectivity. When the insurance company’s doctors disagree, their determination is not final. We can and do challenge their determination through an arbitration held at the Licensing Appeals Tribunal (LAT). It is like a trial but focused only on the benefits that the insurance company has denied.

In addition to accessing benefits, children may sue the people, companies or level of government that caused their injury. For a child to start a claim, the child requires a specially appointed decision maker, called the “Litigation Guardian.” This litigation guardian is often the parents but can be other trusted family members like a grandparent, aunt or uncle, or even a vice principal as was the case on one trial we conducted on behalf of a teenager who did not have a family.

It takes time to properly advance a lawsuit on behalf of a child. A lawsuit is the child’s one opportunity to recover funding for lifetime reductions in their income and potentially lifetime treatment costs. Measuring the effect of an injury is more difficult with children because they are still developing. For children with acquired brain injuries or psychological injuries, it is crucial to see how the child progresses through developmental milestones. Often their behaviour appears typical or near-typical following a serious accident, but as the injured child matures their behaviours may cease to be age appropriate while their cohort of friends go on to mature.  Their lives are also highly structured and supervised by parents and teachers, and it is often important to wait until they child has reached a degree of independence to see how they fare once the supportive scaffolding is removed, and they are without prompting or cueing to initiate action and curb behaviour.

When it comes to predicting what financial losses a child will have over the course of their lives, we turn to as many sources of information as we can. We gather the entire school record, interview family members, friends and teachers, retain economists to contemplate statistical averages of lifetime earnings for different levels of schooling and occupation; we often retain vocational experts and obtain psycho-vocational testing. The courts recognize that there is inevitably a degree of conjecture involved in predicting the career path of a child had the child not been injured. Fortunately, the courts recognize the injustice in requiring the injured child to prove what their future likely would have been like “on a balance of probabilities.” Where that level of confidence cannot be achieved, the courts will also consider the loss of chance, which means hearing evidence about the income the child might have made if they had pursued a career path, and then awarding an amount equal to the percentage of chance they would have obtained that higher paying job.

As in any case, to recover on behalf of a child, we must also prove fault. We have taken cases to trial on behalf of children and won. For example, in Jones v Jocko we took a case to trial against a homeowner who’s dog attacked a young child causing disfiguring facial scars and psychological injuries. In R. v. Wallace we defended a teenager who was charged with running across an intersection against a red light, who was then struck by an oncoming car. We defeated the charge, and obtained three days of trial testimony which we then used to advance his claim for damages. We were also successful in having the young man deemed catastrophically impaired.

We have handled many different types of cases on behalf of children. We have brought product liability claims against manufacturers of chemical drain openers, sued homeowners for improper storage of flammable liquids, sued school boards and ski hills for poorly run school outings, sued municipalities for improperly constructed play structures and skateboard parks and bike paths, and handled many, many tragic cases involving children who were hit by cars.