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Who can be held liable for a traumatic brain injury?

According to the Ontario Brain Injury Association, more than 1 million children in the United States and Canada suffer traumatic brain injuries every year. Some of the incidents that cause these injuries are sports, bicycle and motor vehicle accidents, and most of them result in litigation. This makes it important for parents to be aware of who is liable for causing brain injuries of children and how the justice system works.

When a case for personal injury is filed, a person or entity must be named as liable for causing the injury. The liable person or entity is referred to as the defendant. Since a brain injury is most likely to occur during a traumatic event, the usual basis for liability lies with the negligent actions of the defendant. Negligence is the failure to exercise the degree of care that a prudent person is obligated to exhibit.

When brain injuries in children are the subjects of personal injury claims, the parents file on a child’s behalf. A brain injury is always considered a serious condition, whether it is categorized as mild, moderate or severe. The amount of compensation that a plaintiff may receive, however, depends on the severity of the injury. The diagnosis of a brain disorder resulting from the injury, for example, could generally increase the compensation amount.

However, the defendant’s ability to pay monetary damages is a large factor in the awarded sum. Some of the available resources might include the defendant’s personal assets and the amount of liability coverage the defendant had when the accident occurred. Litigation can only result in an award being collected if the defendant has the resources to pay it.

An example in which litigation for a child’s brain injury could be successful would be for an injury caused in a traffic accident, in which the defendant crashed into the plaintiff’s vehicle after running through a red light. The parents of the child could contact a lawyer to help them determine whether the defendant is able to pay compensation and whether it is worth pursuing litigation.

Source: Ontario Brain Injury Association, “Law: The Paediatric Perspective,” Oct. 15, 2014