19/05/2020 by John Tamming 0 Comments
WHEN CHILDREN ARE INJURED – ADVOCATING FOR OUR KIDS
Sadly, all too often children can and do get injured:
- An adult insists that a 10 year old neighbour have a spin on his ATV, which then crashes into a tree.
- A man rigs up his own zipline and a 15 year old girl falls from it, shattering her feet.
- A toddler at a daycare pulls a TV onto her, causing a catastrophic brain injury.
These are just a few of the cases Tamming Law firm has handled over the years. We consider it an honour to be trusted with ensuring the future welfare of your child. How the claim is handled and resolved can and will affect the rest of his or her life. They are a priority.
After 30 years of practice, I thought I would set down some observations – both legal and practical - for parents and guardians to keep in mind.
Try to achieve a good balance of concern: How a parent approaches the injury will colour the entire claim. I find that many parents fall along two lines – some minimize the injury at great cost to the child; others unduly obsess over the injury to the point where it interferes with treatment and rehabilitation. We urge you to find the happy medium.
Privacy is possible: For cases involving child abuse, we go to the court in advance of issuing a lawsuit and we obtain an order allowing us to use a pseudonym. For the right reasons, this may be available in other types of claims as well. Just ask. The court are extremely protective of the privacy of children.
Whether a child is partly to blame can be a grey area: A child of 4 will not be considered legally at fault in any way for an accident. If the child is a mature 14 year old, however, she may be at least partly to blame for, say, climbing up a dangerous tree fort. It depends on the age and maturity of the child. Some parents have trouble accepting that a teenager should be held liable in any way. We understand that sentiment but it is not the law.
Insurance coverage may not be available: If a child is injured at home through the negligence of his parents, his parents’ home insurance will not cover that claim. Same thing if the child is injured outside of his home as a result of his parent’s negligence. Home insurance will not cover claims for negligence by parents. It is different for car accidents – if a parent causes a car accident which harms the child, the child can certainly sue the parent and there will be coverage. Now, in theory, even if there is no insurance available, a child can still sue a parent for negligence. Obviously, such claims are rare. You would be going against the personal assets of mom or dad. Who would bring that claim?
The two crystal balls: For sixty dollars, I bought a nice crystal ball for one of my office boardrooms. I wish it worked, especially with children’s claims, but it does not. The entire point of compensation is to make up for the difference between how the child’s life would have turned out had there been no accident and how the child’s life is likely to turn out now. It would be great to have an accurate crystal ball for each of these predictions. But we don’t. So we rely on experts instead. We hire an economist to tell us that given the child’s school records, the jobs of his parents, his IQ and other factors, he would have likely gone on to be, say, an engineer. And we hire other experts to meet with and assess your son and tell us that the traumatic brain injury may mean that he will only be employable in a less demanding field for less pay. Is this guess work? Absolutely but it is our job to have the best informed guesswork to make a credible case for court and for the insurance company on the other side of our claim.
Ensuring a fair settlement: Any settlement for someone under the age of 18 has to be approved by the child’s “litigation guardian” (usually a parent). It also has to be approved by a judge. These are guardrails to ensure that the settlement is reasonable and reflects both the future needs of the child and the risks of proceeding to trial.
Ensuring the money is well protected and well spent: The child will not be able to access the funds until age 18, later if there is a “structured settlement”. What’s that? We take the settlement funds and buy an “annuity”, which pays out for the child a fixed amount of money each month. The money is locked in. We will discuss your options with you as a settlement date approaches. For any and all large settlements, we insist on a structured settlement. It is only fair for the protection of the child.
Personal Injury Lawyer John Tamming is your local Grey, Bruce and Simcoe County Lawyer. John and his staff work toward resolving your Child Abuse Claim or Personal Injury Claim with the strictest confidentiality and expediency. Contact John at email@example.com.