When Should a Parent/Guardian File for a Child Injury Claim?

As a parent or guardian, your primary concern is your child’s safety and well-being. Unfortunately, accidents can happen, whether at school, on a playground, or in other public and private spaces. When a child sustains an injury due to someone else’s negligence, you may wonder if you should file a claim. 

In Ontario, parents or guardians can file a child injury claim to seek compensation for the damages and losses the child has suffered, as well as to address any ongoing needs stemming from the injury.

In this blog by Darcy Romaine, he will explore when it’s appropriate to file a child injury claim, the types of situations that may justify a claim, and how to navigate the legal process.

Understanding Child Injury Claims in Ontario

In Ontario, children, like adults, have claims when harmed due to the negligence or intentional actions of another party. The claim seeks compensation for lifetime lost income, amounts spent on behalf of the minor for treatment, future lifetime medical expenses, future out-of-pocket amounts and pain and suffering. 

Parents or guardians can file the claim on behalf of their child, as minors do not have the legal standing to do so themselves. This requires a decision maker to file a court document, called an called an Affidavit of Litigation Guardian, which appoints . 

Key aspects of a child injury claim include:

• Compensation: Claims can cover various costs, such as medical treatments, rehabilitation, out-of-pocket expenses, and even long-term care needs if the injury is severe.
• Legal Representation: Children are represented by a “litigation guardian,” typically a parent or legal guardian, who acts on their behalf in the legal process.
• Limitation Period: The usual two-year limitation period for personal injury claims in Ontario does not begin until the child turns 18. However, starting the claim process sooner rather than later is often beneficial.

When Should You Consider Filing a Claim?

Filing a claim for a child injury isn’t always straightforward. It’s generally appropriate to consider a claim if the injury resulted from someone else’s negligence and has led to significant physical, emotional, or financial consequences. Here are some common situations where filing a claim may be justified:

a) When the Injury is Severe or Life-Altering

If your child’s injury has caused permanent disability, scarring, or other long-term consequences, a claim can help secure the financial resources needed for ongoing medical care, rehabilitation, and adaptive equipment. Severe injuries may include brain trauma, spinal cord injuries, or loss of limb function.

b) When the Injury Results in Significant Medical Costs

Even minor injuries can lead to costly medical expenses. If your child has incurred substantial healthcare costs, including hospital stays, surgeries, medication, or physical therapy, a claim can help recover these expenses.

c) When the Injury is Due to Clear Negligence

Negligence occurs when a person or entity fails to act with reasonable care, resulting in harm. If your child’s injury was caused by someone else’s carelessness, such as a property owner who neglected to maintain safe premises or a school that failed to provide adequate supervision, you may have grounds for a claim.

d) When Insurance Coverage is Insufficient

In some cases, insurance policies may not cover all expenses related to the injury. For example, if your health insurance only covers a portion of rehabilitation costs, a claim can help bridge the gap. This is especially important if the injury requires long-term or specialized care.

e) When the Injury Occurs Due to Assault or Intentional Harm

If your child was injured as a result of deliberate harm, you might be able to file a claim for both compensatory and punitive damages. These cases often involve additional legal considerations, but they are essential for holding the responsible party accountable.

Common Scenarios for Child Injury Claims

In Ontario, child injury claims often arise from situations such as:

a) School Accidents

Schools are responsible for providing a safe environment for students. If your child is injured at school due to inadequate supervision, unsafe facilities, or other negligent actions, you may have a case against the school or school board. Common school-related injuries include playground accidents, sports injuries, and slip-and-fall incidents.

b) Car Accidents

If your child is injured in a motor vehicle accident, you can file a claim through your auto insurance policy or pursue a personal injury claim against the at-fault driver. Accident benefits in Ontario cover medical expenses and rehabilitation, but you may need to file a claim to recover costs beyond those limits.

c) Daycare and Camp Injuries

Childcare providers, such as daycares and summer camps, have a duty of care to protect children from harm. If your child is injured due to inadequate supervision, unsafe equipment, or unsanitary conditions, you may have grounds for a claim.

d) Public Property or Playground Injuries

Public parks and playgrounds should be maintained to ensure the safety of children. If your child was injured on public property due to unsafe conditions, such as broken equipment or hazardous surfaces, you may have a claim against the municipality responsible for maintaining the area.

e) Product-Related Injuries

If your child was injured due to a defective toy, piece of equipment, or other consumer product, you may be able to file a product liability claim against the manufacturer or distributor. Product liability claims often involve defective design, manufacturing defects, or insufficient safety warnings.

Steps to Take After Your Child Has Been Injured

If your child is injured and you believe someone else may be responsible, taking the following steps can help you prepare for a potential claim:

Step 1: Seek Medical Attention

Your child’s health is the top priority. Take them to a healthcare provider for a full evaluation, and make sure to document all treatments and medical appointments. These records will serve as evidence if you pursue a claim.

Step 2: Document the Incident

Collect as much information about the incident as possible, including:

• Photos of the scene where the injury occurred
• Witness statements and contact information
• Copies of any incident reports, such as those from schools or public facilities

Having detailed documentation strengthens your case and provides clear evidence of what happened.

Step 3: Report the Injury

If the injury occurred at a school, daycare, or public facility, report it to the relevant authorities. Request a copy of any incident reports they complete, as these can support your claim.

Step 4: Keep a Record of All Related Expenses

Track all costs associated with the injury, including medical bills, transportation to appointments, therapy sessions, and any assistive devices needed for recovery. These expenses will be essential for calculating the compensation amount.

Step 5: Consult a Personal Injury Lawyer

A personal injury lawyer experienced in child injury cases can help you understand your rights and guide you through the legal process. Our pediatric injury lawyers free consultations, allowing you to discuss your case and explore your options without immediate financial commitment.

Financial Losses Over The Course Of Child’s Life

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.

What Is “Catastrophic Injury”?

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. 

Timing: When to File a Claim

In Ontario, the general statute of limitations for personal injury claims is two years. However, when a minor is involved, the clock doesn’t start ticking until they turn 18. Despite this extended timeline, it’s often beneficial to file a claim sooner to preserve evidence and address immediate needs.

Starting the process early allows you to access compensation faster, ensuring that medical and care expenses are covered as soon as possible. Additionally, memories and evidence can fade over time, so taking action promptly is generally in the child’s best interest.

Proving Fault In Child Injury Case

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.

Child Injury Lawyer Toronto 

When your child is injured due to someone else’s negligence, filing a claim can help secure the financial resources necessary for recovery and future needs. By understanding the circumstances under which filing a claim is appropriate, you can make informed decisions to protect your child’s rights and well-being.

If you believe your child’s injury warrants a claim, consider consulting a personal injury lawyer who can provide guidance tailored to your situation. This proactive approach ensures that your child receives the support they need, both now and in the future.