When should the injured person have “discovered” they had a claim?

March 14, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent decision (Grewal v. Ivany) the court agreed with the defendant that the plaintiff (injured party) was aware that he had an injury, and therefore a claim for damages, more than 2 years before the date that the claim was started.  As a result, the plaintiff was not entitled to continue with the claim.

Grewal was involved in a car accident on December 11, 1999.  He suffered soft tissue injuries to his neck and low back.  Grewal saw his family doctor 2 days after the accident and on about a dozen other occasions.  He also had a medical assessment through his accident benefit insurer on February 22, 2000.  At that time the assessing physician was of the view that Grewal would make a full recovery.  On May 17, 2000, Grewal attempted a return to work as a machinist.  After 3 days, on May 19, 2000, he had to stop because of pain and swelling around his neck.  Grewal was advised to rest and undergo more physiotherapy at that time.  He had not returned to work since that attempt in May, 2000.  A Statement of Claim was issued on September 4, 2002.  The court noted that Grewal had retained a lawyer within 1 month of the accident.

The court accepted that Grewal knew of the necessary material facts, on May 19, 2000, to know that he had a claim against the defendant.  May 19, 2000, was held to be the discoverability date.  Since the Statement of Claim was issued in September, 2002, it was more than 2 years from the discoverability date.

The judge noted that in the cross examination of Grewal, Grewal acknowledged that he knew that his injuries may be both permanent and serious on or shortly after May 19, 2000.  He also stated that in the summer of 2000 he did not know when or if the pain in his neck would ever end.  It was also noted that Grewal´s family doctor noted, on May 23, 2000, that Grewal was suffering from chronic pain.

Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering, Physical Therapy

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

Practice Areas

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