Judge allows Injury Claim past two-year Limitation Period, entitling Plaintiff to almost $300,000 in awarded Damages

In a lawsuit arising from a motor vehicle accident, Bains v. Wolski, an Ontario judge ruled that a plaintiff’s claim would be allowed past the limitation period, as the plaintiff’s physician did not fully inform him of the extent and severity of his injuries until more than two years after he was hurt.

The defendant driver in this action admitted liability in causing the plaintiff’s injuries but challenged the claim for being past the limitation period. However, the judge ultimately ruled that the claim was not statute-barred for being too late because the plaintiff’s claim was commenced within two years of receiving a diagnosis that he may have suffered a traumatic brain injury, and the limitation period actually started to run on the date the plaintiff received a diagnosis of possible brain injury. (Although the doctor’s diagnosis of ‘mild brain injury’ was ultimately determined to be incorrect, it was this diagnosis that triggered the lawsuit, and ultimately, the plaintiff’s psychological injuries and chronic pain were determined of sufficient severity to meet the threshold.)

On insurance claims that had been submitted less than two years after the accident, the plaintiff’s doctor wrote that the plaintiff was “totally disabled”; however, in his discussions with the plaintiff during this same period, the doctor expressed hope about the plaintiff’s potential recovery, rather than telling him he suffered a serious and permanent impairment. Based on this hope that he would improve and could return to work, the plaintiff was not in a position to determine that his injuries met the threshold of a serious and permanent injury.

Facts of the case

The plaintiff, Mr. Bains, was involved in a motor vehicle accident caused by the defendant. As a result of the accident, the plaintiff suffered a number of symptoms, predominantly, headaches, reduced concentration, depression, back and neck pain and mood swings.

The plaintiff participated in physiotherapy, which did little to reduce his headaches or his neck and back pain. As time when on, Mr. Bains became increasingly depressed. He also became anxious about everything, particularly his finances, believing that his long-term disability payments were not sufficient to cover his lost income. The plaintiff also complained of problems with his short-term memory and in making decisions.

The defendant admitted liability for the accident and for the plaintiff’s injuries, but a trial was required to determine damages. In Bains, the jury assessed the following damages: $65,000 in non-pecuniary damages, $200,000 for future loss of wages; and $32,000 for future home care and maintenance loss.

While the jury was deliberating on the amount of damages, the judge was required to decide on the defendant’s motion to dismiss the case for being past the two-year limitation period.

Governing principals and laws

With respect to claims for damages arising from a motor vehicle accident, financial losses incurred by an accident victim, such as loss of income and rehabilitation expenses, are not subject to a threshold; however, non-pecuniary losses (for pain and suffering, and loss of enjoyment in life) must meet a threshold in order for the injured person to be eligible for damages for such losses. The threshold for non-pecuniary losses requires that a person sustain a permanent and serious impairment of an important bodily function.

Also, under Ontario’s Highway Traffic Act, a claim should be delivered within two years of the date of an accident, or within two years of the date the person’s claim was ‘discovered’. In this case, the claim was commenced more than four years after the plaintiff was hurt, but slightly less than two years from the date of the plaintiff’s physician’s “stated opinion”.

The principle of discoverability pertaining to tort actions arising from motor vehicle accidents is based on a decision by the Supreme Court of Canada, in Peixeiro v. Haberman (1997) where the Court concluded:

"Under s. 206(1) of the Highway Traffic Act, there is no cause of action until the injury meets statutory exceptions to liability immunity in 266(1) of the Insurance Act...Time under s. 206(1) does not begin to run until it is reasonably discoverable that the injury meets the threshold of s. 266(1).” This means that “no cause of action exists until sufficient severity of injury exists".

Judge's reasoning

The plaintiff’s case rested on the argument that his physician’s diagnosis of a ‘mild brain injury” was the catalyst for the limitation period and the plaintiff commenced his claim within two years of this diagnosis. As it turned out, the diagnosis of brain injury was later ruled out in neuropsychological testing ordered by the plaintiff’s physician. Mr. Bains was also diagnosed with chronic pain syndrome and referred to both a pain clinic and rehabilitation centre for treatment. No one at either facility told the plaintiff his injuries would be permanent; instead, both facilities set goals of returning to work and resuming social activities. The plaintiff was also referred to a psychiatrist when he was struggling with depression that would not subside.

The judge concluded that the plaintiff’s physical pain symptoms were long-standing. He also noted that the psychological components of the plaintiff's injury worsened and became most apparent when he was referred for treatment about one year after the accident, and his symptoms were further evidenced when he visited the psychologist, several months after that.

The key question for the court in this case was whether the plaintiff knew, or should have known, within two years of his accident, that his symptoms likely exceeded the threshold. The judge noted that, in his view, the plaintiff only needed to establish a permanent and severe impairment, and did not need to prove physical injury.

After pondering the limitation period issue, the judge noted that the concept of discoverability is quite elastic and in this case, the plaintiff suffered from an ongoing period of soft-tissue symptomology that was complicated by an onset of depression. Although the plaintiff should perhaps have realized his injuries were serious and permanent at an earlier date, his physicians and caregivers tended to give him hope that he could return to work and did not clearly communicate the potentially permanent nature of his injuries. Consequently, the judge was not persuaded that Mr. Bains should have known that his injuries met the threshold within two years of his accident. Therefore, the judge ruled that the limitation argument failed and the plaintiff was eligible for all awarded damages.

If you or a loved one were injured due to the negligence of another party and you are claiming damages for your losses, call an experienced personal injury lawyer at our firm for a free initial consultation.