Each year, Brain Injury Awareness Month in June provides a crucial opportunity to shed light on one of the most complex and life-altering types of injury: traumatic brain injuries (TBIs). For Ontario residents who have suffered a brain injury due to an accident or negligence, understanding your legal rights is essential, not just for immediate medical care, but also for securing long-term compensation and support.
Whether caused by a car crash, a fall, an assault, or a workplace accident, the legal and medical consequences of a TBI can be profound.
What Is a Traumatic Brain Injury?
A traumatic brain injury (TBI) occurs when an external force causes damage to the brain. This can include a blow to the head, a sudden jolt (as in a car accident), or a penetrating injury. TBIs can range from mild concussions to severe brain damage, resulting in permanent disability.
TBIs are often referred to as the “invisible injury” because symptoms may not be immediately apparent and can vary widely from person to person. Some common symptoms include headaches, memory loss, confusion, speech and vision issues, emotional regulation problems, and loss of coordination. In severe cases, a TBI may result in coma, paralysis, or long-term cognitive impairment.
In many cases, victims do not realize the full extent of their injury until days or even weeks after the incident. This delay can complicate medical treatment and legal claims, making early documentation and legal advice critically important.
Common Causes of TBI and Potential Legal Claims
In Ontario, TBIs can arise in a wide range of circumstances. Understanding the context in which the injury occurred is the first step toward identifying whether a legal claim is viable.
Motor Vehicle Accidents
Motor vehicle accidents are among the leading causes of traumatic brain injuries in the province. When a TBI results from a car, truck, or motorcycle accident, a claim may be made through Ontario’s accident benefits system. In some situations, the injured party may also have a claim against an at-fault driver.
Slip & Fall Accidents
Slip and fall incidents are another common cause. Under Ontario’s Occupiers’ Liability Act, property owners and occupiers have a legal duty to keep their premises reasonably safe for visitors. If someone suffers a brain injury due to a hazardous condition, such as an icy walkway or poorly maintained stairs, they may have grounds for a premises liability claim.
Assaults
Assaults and violent altercations can also result in traumatic brain injuries. In addition to criminal charges against the assailant, the victim may be able to pursue a civil claim for damages through a personal injury lawsuit.
Workplace Accidents
Workplace accidents are another notable cause of TBI, particularly in industries like construction, manufacturing, and transportation. While some of these injuries are covered by the Workplace Safety and Insurance Board (WSIB), others may fall outside the system and be eligible for civil litigation.
Your Right to Compensation
In Ontario, accident victims, including those with brain injuries, may be entitled to compensation through two primary channels: accident benefits and tort claims. Both avenues can be pursued simultaneously, depending on the circumstances of the injury.
Accident Benefits
Statutory Accident Benefits (SABS) are available under Ontario’s auto insurance system, regardless of who caused the accident. If you have sustained a brain injury in a motor vehicle accident, you are generally entitled to receive accident benefits from your own insurer. These benefits may include:
- Medical and rehabilitation expenses;
- Attendant care;
- Income replacement;
- Non-earner benefits; and
- Housekeeping and home maintenance assistance (in some cases).
When a TBI is classified as a “catastrophic impairment” under Ontario’s insurance legislation, the victim may qualify for enhanced benefits and increased limits on medical and attendant care funding. Given the complexity and evolving criteria for catastrophic designation, legal guidance is often necessary to secure this classification.
Tort Claims
You may also be eligible to bring a tort claim against the person or entity responsible for your injury. A tort claim allows you to seek damages for pain and suffering, future care costs, loss of income, and other economic and non-economic losses. Tort claims are fundamental in serious TBI cases, where accident benefits alone are unlikely to fully address the long-term needs of the injured person.
Proving Liability and Damages in a TBI Case
To succeed in a personal injury lawsuit related to a traumatic brain injury, the plaintiff must prove two key elements: liability and damages.
Liability refers to the legal responsibility of another party for the injury. This may involve showing that a driver was negligent in causing a crash, that a property owner failed to maintain safe premises, or that an employer ignored safety protocols. Gathering evidence such as eyewitness accounts, expert testimony, surveillance footage, and accident reports is often critical.
Damages refer to the harm suffered by the plaintiff due to the injury. In a TBI case, damages can be extensive and long-lasting. They often include:
- Medical expenses (past and future);
- Loss of income and earning capacity;
- Cost of future care and accommodations;
- Pain and suffering;
- Emotional and psychological distress; and
- Loss of enjoyment of life.
Because brain injuries can be challenging to diagnose and document, particularly when cognitive or emotional symptoms are involved, personal injury lawyers frequently work with neurologists, psychologists, occupational therapists, and life care planners to build a strong medical and economic case.
Time Limits: The Importance of Acting Quickly
Ontario law imposes strict time limits on personal injury claims, known as limitation periods. In most cases, you have two years from the date of the injury to file a lawsuit. However, exceptions and shorter deadlines may apply.
For example, if your injury involves a municipal defendant (such as a slip and fall on public property), you must provide written notice of your claim within 10 days. Similarly, claims involving minors or individuals with diminished capacity may be subject to different rules.
Given these strict timelines, it is essential to consult a lawyer as soon as possible after a brain injury occurs. Early legal advice can also help ensure that crucial evidence is preserved and all possible compensation sources are explored.
The Role of Legal Counsel in Brain Injury Cases
Brain injury cases are among the most complex in personal injury law. The symptoms are often subtle, the medical diagnosis may be delayed or disputed, and the long-term impact is frequently underestimated. In many cases, victims face resistance from insurance companies that downplay the severity of the injury or dispute the need for ongoing care.
Experienced personal injury lawyers can play a vital role in levelling the playing field. A lawyer can help you navigate accident benefits and insurance applications. They can also collect and organize your medical documentation and obtain expert assessments and opinions. Legal advice is also critical for determining the long-term financial impact of your injury and negotiating a fair settlement (or taking your case to court).
Most importantly, having legal representation allows the injured person and their family to focus on recovery while the legal team handles the complex and often adversarial aspects of the claim process.
Supporting a Loved One with a TBI
When a brain injury occurs, it doesn’t just affect the individual, but also affects the entire family. Loved ones often take on the role of caregiver, advocate, and emotional support system. In some cases, legal guardianship or powers of attorney may need to be established if the injured person cannot make decisions on their own behalf.
It is essential for caregivers to understand their own rights and responsibilities and to seek legal guidance where necessary. A personal injury lawyer can assist with applications for disability benefits, insurance disputes, and legal arrangements that protect the injured person’s interests.
Contact Campbell Litigation for Compassionate Personal Injury Representation in Kitchener-Waterloo
The team at Campbell Litigation is committed to providing compassionate, knowledgeable legal representation to brain injury survivors and their families. An experienced personal injury litigator, Richard Campbell understands the medical and legal complexities of these cases and works tirelessly to ensure clients receive the care, support, and compensation they deserve.
If you or a loved one has suffered a brain injury, don’t wait to seek legal advice. Contact our office online or call 519-886-1204 to schedule a consultation and learn how we can help you protect your rights and secure your future.
