Litigation of a traumatic brain injury case in Canada

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Disputes involving minor traumatic injuries are associated with many challenges. These injuries are difficult to positively diagnose and sometimes have no positive radiological results. In some cases, there is no loss of consciousness or other objectively measurable criteria to clearly indicate that you have suffered a mild brain injury.

Despite the challenges of diagnosing mild brain injury, its immediate and long-term impact can be debilitating and costly. Don’t be fooled by the term “mild” because even the slightest damage to your brain can have a serious and lasting effect.

When there is an objective measure to clearly demonstrate that a brain injury has occurred, the liability of the plaintiff’s attorney becomes more difficult. In fact, it’s difficult to build a strong enough case to convince the trier of fact, even in cases involving broken bones, let alone seemingly invisible minor traumatic injuries.

To seek compensation or settlement for the brain injuries you have suffered, it is recommended that you hire a lawyer experienced in traumatic brain injury litigation in Canada. Your attorney should treat your case slightly differently than they would a standard injury case involving broken bones or any other objective injuries.

Expert witnesses are crucial in all cases involving illness or injury. However, the use of a lay witness in the litigation process of traumatic brain injury cases is of paramount importance. Note that an ordinary witness is in a unique position to describe how the brain injury has impacted the plaintiff’s life. The value of this unique perspective cannot be overstated, especially in the absence of concrete diagnostic evidence of injury and when, at first glance, injured patients may appear normal.

Who can be used as an unqualified witness?

The best people to use as lay witnesses are those who know the plaintiff well, rather than people who might have an ulterior motive to testify. A family friend, co-worker or neighbor can attest to the change they have seen in the claimant’s abilities and general life since the incident that caused the claimant’s injuries.

Remember that it is less persuasive to have the claimant’s best friend, close family members or spouse testify. While these people are more likely to have insight into the plaintiff’s medical condition, lawsuits are also a matter of credibility. It is widely believed that people very close to the complainant have the motivation to paint a somewhat sympathetic picture. For this reason, it is best to use a lay witness who is more likely to be viewed as neutral.

Conclusion

Because of the challenges inherent in diagnosing mild traumatic brain injury, courts have found the testimony of lay witnesses particularly persuasive. This makes lay witnesses a crucial part of building a case involving traumatic brain injury.

Since there are no diagnostic criteria to positively identify mild traumatic brain injury, testimony from people who know the plaintiff very well becomes valuable. The lay witness should be neutral and be able to tell a concise story of the plaintiff’s injury while building on the emotional theme of the case.

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