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Personal Injury Case? Timing can mean everything!

Good timing can mean the difference between a winning personal injury case, and a losing personal injury case. In fact; timing can also spell the difference between being involved in a serious accident; and missing a serious accident.

Accident victims aren’t looking to get into accidents in the first place. They are simply in the wrong place, at the wrong time. But for some serendipitous timing and bad luck, they would not have been involved in an accident in the first place. Hence, they would not need the assistance of a personal injury lawyer. But accidents much like bad luck and bad timing happens. That’s life.

At law, there are limitation periods. This means that an injured accident victim cannot wait forever, or wait too long to retain a personal injury lawyer and start their claim. Waiting too long to get the legal process started has consequences.

Defendants will argue that waiting too long is unfair. Lawyers will call that unfairness prejudice. You will often hear from Defence lawyers that the delay is “prejudicial to their clients” because of reasons A, B and C. Sometimes this is true. Other times, it’s legal mumbo jumbo for they just want to get the case dismissed on account of delay.

Here’s a case where there can be prejudice to a Defendant for delay:

The Plaintiff waits so long to start their case that evidence is destroyed, witnesses can’t be tracked down or if they are, their memories of the events have faded, and investigations by a Defendant cannot be made until it’s fall too late. That’s certainly fair.

These arguments often lose their strength when an investigation has been completed by an agency like a fire department, police, EMS etc.

Still, there are hard and fast rules with limited exceptions as to the time frame for a Plaintiff to commence his/her claim.

These timelines are referred to at law as “Limitation Periods“. These limitation periods are set out in their own act, called the Limitations Act, 2002.

If a Plaintiff waits too long, and commences his/her action after a limitation period has expired, a Defendant can (and likely will), bring a motion to a Judge to have the case dismissed for delay. These are called Summary Judgment motions.linkedin-2-300x300

These motions have little to do about the merits of the case, or the injuries to the accident victim. They have to do when when the accident took place; when the Plaintiff knew, or ought to have known that they limitation period began to run; when the limitation period expired; and when the Statement of Claim or Notice of Action was issued with the Court.

That means that no matter how much the Defendant was at fault, and no matter how bad a Plaintiff’s injuries were; it does not matter. All that will really matter is when the accident was, and when the Plaintiff started his/her case. Even the most winning of cases can be dismissed if the claim is not started in time. And it’s for those reasons that timing is everything in a personal injury lawsuit.

Most limitation periods are 2 years from the date of the triggering event (like an accident), or from the date which the Plaintiff knew or ought to have known they had a cause of action against a Defendant.

These limitation periods are different for minors. They do not begin to trigger until they reach the age of 18. And then it’s the age they reach 18, plus two years; so technically, ┬áthe minor will have until they reach the age of 20 to start their case.

A limitation period in a medical negligence or medical malpractice case can get tricky as well. In a car accident case; it can be pretty obvious that the car accident caused injury and the car accident took place on an objective date which is known to the Plaintiff, Defendant, Police etc.

But in a medical malpractice or medical negligence case, it’s not as obvious to the Plaintiff or to the Defendant when the Plaintiff knew or ought to have known about a medical error. Sometimes a Plaintiff only finds out that their doctor has committed an error after getting a second or third opinion! Sometimes this can be months or years after the initial error occurred.

Take the example of getting a routine gall bladder removal surgery (not that any surgery is routine as they all have the potential for complications). Recovery from surgery can take anywhere from 2-4 weeks. Let’s say that during the course of surgery the surgeon leaves some hardware in the body that shouldn’t have been left behind. It happens more often that you think! The patient if left with serious abdominal pain as a result but s/he believes this is a normal bi-product of the surgery and the recovery process. Months go by and the pain does not go away. Finally doctors recommend a scan to see what all the trouble is because the recovery has not according to plan and has taken far too long for such a routine procedure. Doctors see that hardware has been left behind. The patient then gets a further surgery to get the hardware removed and now wants to claim against the surgeon for their negligence.

The patient Plaintiff will argue that they only knew or ought to have known that the surgeon was negligent when they got the results from the scan. The Defendant doctor may take a different view and suggest that they Plaintiff patient knew or ought to have known something went wrong before that time.

If a Defendant brought a motion to have the case dismissed for delay, it would be up to a Judge to decide when the limitation period began to run. In this basic example the Judge would likely side in favour of a Plaintiff. But there are certainly more complicated fact patters where the lines about when a claim should have been started get more blurred.

It’s for these reasons that limitation periods and timing is important in personal injury cases. If you have or are contemplating a legal action; don’t sit on it. Justice delayed is justice denied. And when a Plaintiff is playing around with a limitation period; they are playing with fire which can destroy a case before it even has a chance of taking off.

 

 

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