Toronto, Canada (PressExposure) August 29, 2009 -- Injuries are the leading cause of death and disabilities for children and young adults in Canada. Each year children are reported injured as a result of household injuries, playground and school ground injuries, sports injuries and injuries related to bicycles. According to the Canadian Hospital Injury Report and Prevention Program (CHIRPP), 23% of all injuries occurring to children between the ages of 10-14 take place in or around the home. A further 22% and 17% are injuries in playgrounds and at schools respectively.1 Brain injury is the number one killer and disabler of children in Canada. A child who has suffered from such an injury will require extensive hospitalization, treatment and future care.
Representing a child in a civil proceeding is extremely challenging, complex and rewarding. Children may be witnesses to an accident, the injured party or a victim to alleged wrongdoing. In recent years these children are increasingly being called as witnesses in Canadian civil courts. All too often counsel must rely on "the school of hard knocks" when preparing their witness for a court proceeding, be it an examination for discovery, examination in chief, or cross-examination.
Much of the traditional Canadian trial advocacy literature focuses on children as witnesses in criminal proceedings.2 Since the late 1980's sexual assault of children and the way these children testify in court have received extensive attention from legal authors, the courts and social science researchers. There is now a body of research on the reliability and credibility of child reporting and the developmentally appropriate questioning of a child. There is also now a body of literature on how to question children in a criminal proceeding in a Canadian court.
While the legal literature on child witnesses in sexual assault cases is useful, such literature has only limited application to a personal injury action in the Canadian civil courts. The dynamic of the civil proceeding and the way the age of the child and their physical trauma affects their testimony, are absent from the traditional trial advocacy literature. The purpose of this paper is to provide practical information for the legal profession on how to prepare and examine a child who is a witness in a personal injury action.