Posted: December 10, 2016
By: Steve Rastin

In June 2009, a woman was rear-ended and sustained several significant injuries to her neck, back, shoulders and hips, including soft-tissue injuries, for which she was hospitalized. In August 2010, the injured woman retained legal counsel and in December 2011, her lawyer initiated a civil suit against the owner of the vehicle responsible for the accident.

In Schaefer v Ayeneababa (2016), the defendant responded by seeking a summary judgement to dismiss the civil action, on the grounds that the claim was initiated more than two years after the accident and was thus statute-barred under the Limitations Act.

The plaintiff argued that between June 2009 and December 2009, she reasonably believed she was on the mend and did not, and could not have known her injuries were permanent. She noted in her affidavit that at no time was she told that her injuries and impairments were permanent but instead, was assured that with time and treatment, she would get better. It wasn’t until August 2010, a year after the accident, that the plaintiff realized she had a claim, as she continued to suffer with pain and impairments (including headaches, dizziness and acute depression) and as a result, she promptly sought legal counsel. The plaintiff argued that the limitation period could not have started on the date of her accident because she was not aware that she had a claim and therefore, her claim is not statute-barred for being too late.

The defendant challenged the plaintiff’s assertion that her claim was not time-barred by pointing to a letter counsel for the plaintiff sent the insurer in May 2011. In the letter, plaintiff’s counsel noted that the limitation date on the claim (i.e. June 24, 2011) is “fast approaching” and he included a draft statement of claim, which pleaded “permanent and serious impairments”. The defendant argued that, by these words and actions, the plaintiff’s counsel was essentially acknowledging that the plaintiff’s injuries were permanent and also, that the deadline for commencing the action is June 24, 2011, two years from the date of the accident.

The motion judge disagreed with the defendant’s argument. Justice Belobaba referenced Ioannidis v. Hawkings, which states that in claims of permanent injury and impairment under the Limitations Act, the Court should grant “a degree of latitude to the plaintiff before declaring that the limitation period has begun to run” and further, the limitation period should not commence “until there is sufficient body of evidence available to be placed before a judge that, in counsel’s opinion, has a reasonable chance of persuading a judge on a balance of probabilities that the injury qualifies”.

Regarding the letter that plaintiff’s counsel sent to the insurer, the judge noted that the word “continuing”, which was used to describe the plaintiff’s injuries, is not in itself an acknowledgement of permanence, nor is the fact that plaintiff’s counsel attached a draft statement of claim, pleading “permanent and serious impairment”.  Justice Belobaba pointed out that this terminology is used in almost every motor vehicle accident that results in significant injury.

The judge also added that when plaintiff’s counsel wrote that the limitation period is “fast approaching”, the lawyer was saying as much about his desire to remain on the side of caution with respect to commencing the claim within the two-year limitation period, as he was about an admission that the plaintiff was aware she suffered a permanent soft-tissue at the time of the accident.  The judge commented that it was, in fact, impossible for her to know her soft-tissue injuries were permanent on the date of the accident, which was confirmed by the plaintiff’s medical evidence, which included various clinical and psychological reports.

Justice Belobaba concluded that there is nothing to suggest that the plaintiff knew or had reason to know, within the first six months of her accident, that her injuries were permanent.  On this basis, the judge decided her action was not time-barred and dismissed the defendant’s motion for summary judgement.

Soft tissue injuries, such as sprains, muscle strains and bruising, frequently result from trauma associated with car accidents, slip and fall accidents, and other incidents that cause injury.  The most common soft-tissue injuries arising from motor vehicle accidents are to the neck and back, including whiplash injuries. On the other hand, sports injuries more often result in soft-tissue injuries to the ankle, calf, knee and achilles tendons, although any area of the body can be injured in such cases.  Although recovery time for a soft-tissue injury can be within one to four weeks, in some cases, recovery can take a year or the injured person may never fully recover.

Certainly, it is difficult if not impossible, to immediately diagnose whether a given soft-tissue injury is permanent.  In fact, it is both unreasonable and not in the best interests of civil litigation to not allow accident victims a reasonable amount of time to realize the severity of their injuries before filing a claim.  Although most injured persons are able to make this decision and commence an action within two years of their accident, the Limitations Act allows for circumstances where a plaintiff took reasonable actions to ascertain the extent of their injury, but through no fault of their own, were not aware they had grounds to commence a claim until more than two years after their accident.

If you or someone you love has suffered injury, including soft-tissue injury, as a result of an accident caused by another party’s negligence, do not hesitate to call Rastin & Associates today.  We welcome you to come to our office and meet with a knowledgeable personal injury lawyer, to have your questions answered and find out about your legal options for securing owed compensation.

You can call us at  844-RASTIN1 or  email Rastinlaw.com


 
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Posted under Car Accidents, Injury Case Preparation, Personal Injury