This series, by BC personal injury lawyer Paul Mitchell Q.C,.will explain the Top Ten mistakes to avoid with your ICBC personal injury claim.
The articles will give tips on how to ensure you do not make serious mistakes that could be fatal to your claim.
For 10 issues of Legal Alert, Paul will focus on one mistake you should avoid, and what you should do instead to ensure your ICBC personal injury claim is not prejudiced.
This month, Mistake # 3, Missing Important Limitation Dates
Mistake # 3 Missing Important Limitation Dates
Missing a ”limitation date” can be fatal to your personal injury claim, and yet it happens all too often.
A “limitation date” is a date set by statute that requires you to do something in the lawsuit by a certain date (the limitation date).
If you do not do that activity before the required date, the usual result is your claim is completely nullified.
Some dates are extremely short. Most are not well known by the injured. They wait to see a lawyer, and when they finally do, they find out they have no claim at all, as the limitation date has “expired’.
Some common limitation periods, and other issues relating to limitation periods that cause trouble, are set out below;
1)Actions Against Municipalities
This limitation period is very short. If you are injured a s a result of negligence by a municipality, you must give them written notice within 60 days of the claim. If you do not, your claim may be dismissed.
You must also commence your law suit within 6 months. if you do not, your claim may be dismissed. These may involve lawsuits involving design of intersections, sidewalks, maintenance of roads, and injuries on city owned or operated property.
2) Actions for Personal Injuries Generally
All actions for negligence causing personal injury must be commenced within 2 years, at the very latest, except for infant claims ( see below).
3) Actions Against ICBC For Part 7 Rehab Benefits
The rehabilitation benefits payable under part 7 of the ICBC Regs can be substantial. If ICBC wrongfully refuses to pay these benefits, then a lawsuit against ICBC to compel ICBC to pay the benefits must be commenced no later than 2 years after the last payment has been made by ICBC. Failure to do so will mean not only that ICBC will not have to make the payments, but any payments they should have made, but didn’t, will actually be deducted from the final claim. These amounts can be substantial in serious claims.
4) Medical Malpractice Actions
These can be tricky. Generally the limitation period is 2 years, from the time that the person knew or ought to have known there was a potential of negligence.This can often be complex when a procedure was done many years prior, and the symptom takes several years to develop.
5) Actions involving Infants
Generally, an infant (those under the age of 19 in BC), does not have to commence an action until 2 years after they turn 19, which is 21.
This can be important when children are injured at a young age, and no one does anything about it. Years later, the parents assume the infant’s claim is barred, because 2 years has expired.
Their limitation period actually expires just before their 21st birthday (except for actions against ICBC for Rehabilitation benefits under Part 7..see below.)
6) Infant Actions against ICBC for Rehabilitation Benefits Under Part 7
The extension of limitation periods for these claims for infants does not apply. Actions against ICBC for payments under Part 7 must be commenced no later than 2 years from the last payment, even if the claimant is an infant. I have seen many cases where the parents assume they do not have to bring an action on behalf of the infant until their teen years. This is not the case for ICBC Rehab benefits. The result is that the amount the child could have obtained will be deducted from the child’s claim. These amounts can be substantial in serious claims.
7) Not Naming all the Correct Defendents in a Lawsuit
You must correctly identify all the correct defendents in your lawsuit. This can be very tricky in product liability lawsuits, and medical malpractice actions. There have been many cases where a party has come to light after the 2 year limitation period expires, and the lawyer attempts to “join’ them in the lawsuit, unsuccessfully. Sometimes all the parties cannot be properly identified until many months after the lawsuit is commenced, and an Examination for Discovery takes place. If this is left too late, you may risk not naming all the proper defendents.
So make sure you know all the limitation periods applicable in your case.
Is a municipality possibly at fault , including road or sidewalk design or maintenance, injury at a city owned or operated facility etc.?
Is this a potential product liability case ( negligent design/manufacturing of a car or it’s components, or other design manufacturing issues).
Make sure you get the advice of a lawyer early on to ensure you do not miss any important limitation periods that may be fatal to your case.
Don’t make a mistake.
Make your case.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
