In this personal injury brain injury (Jones v. Donaghey)case the infant claimant was an aboriginal child living with his parents on a reserve.  The Director of Child Welfare took him into care, and eventually  placed him in a foster home.  The personal injury lawyer representing the brain injury infant claimed that he was  intentionally assaulted by the foster parents resulting in very serious brain injury. The foster parents in this court application ask the court to delay the 60 trial for at least two years because they say it is too early to assess the extent of brain injury.
The foster parents deny any liability and claim that the brain injury resulted  from trauma that occurred before the infant came to live with them.  The claims against government, according to plaintiffs’ lawyer, are  for wrongfully apprehending the infant, failing to adequately investigate the foster parents, and wrongfully managing the injury claimant during the period that he was in care before sustaining the brain injury.
The injury claimant  anticipates calling up to 35 non-expert witnesses at trial and have  17 expert reports. Some of the experts are from outside the country. All experts are scheduled to testify. As the court pointed out,  an adjournment would add to the costs associated with expert evidence, including  re-writing of reports. At least one significant lay witness is in her seventies and others appear potentially fragile, due to their life circumstances.  Financial hardship associated with delay is also prejudicial.
According to the foster parents, an adjournment of two years is necessary to permit the personal injury claimant, now age four and seriously brain injured, to develop sufficiently that their experts can adequately assess his future needs.
The court took into account here that the claimants mother is now a single parent with limited means living with the infant on a reserve. She has some access to transportation, but cannot afford a car. It was unclear whether the mother will be personally responsible for funding care, or rehabilitation expenses for the injuty claimant but the amount advanced in that regard by her, or on her behalf, totals more than $100,000.
The accuracy of the costing may significantly depend on whether the brain  injured infant will need lifelong  24-hour a day care by an attendant,and if so, the degree of qualification required of the caregiver.  Any personal injury claim for a claimant under 19 years of age in British Columbia must be approved by the the Public Guardian and Trustee.
The judge concluded that the balancing process favoured proceeding with the trial as scheduled in spite of the difficulties it may present. The application of the foster parents to delay the trial was denied. Posted by Mr. Renn A. Holness
Issue: Should personal injury claimants with long complex trials get preferential treatment from the court?

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