The limitation period under the Highway Traffic Act
for commencing a claim is the two year period after the
accident. An action by you for damages for personal injuries
will probably be barred if you commence it on or after the
second anniversary of the accident. There are some circumstances
in which the limitation can be avoided, but no-one should delay
commencing an action in reliance on them.
There are some other time periods of which you should be
aware contained in Section 258.3 of the Insurance Act.
The most important of these is the requirement to serve notice
of your intention to claim on the potential defendants, i.e. the
driver and owner of the other cars, within 120 days of the
accident. Failure to do so will probably not prevent your claim,
but makes it more expensive later to proceed, because a court
order authorizing the claim must be obtained.
2. Statutory Accident Benefits (SAB)
Your own insurer is required to pay accident benefits. You
should by now have the application forms and be following
through with your application for such benefits, which include
loss of income, medical, rehabilitation, and homemaker benefits
for the period during which you are unable to carry out your
normal work and household activities. The loss of income
benefits are not payable for the 7 days after the accident, and
are on a scale of the lesser of 70% of your net payor $400.00
per week. Other insurance benefits, like employment disability
and sick benefits, must be used up first. Non catastrophic cases
have reduced benefits.
3. Property Damage
It is not generally worth your while to involve lawyers in
assisting you in your claim for damage to your vehicle. Your own
insurer should of course be involved here. There is an
arbitration procedure available if you are not happy with the
insurer’s settlement proposal.
4. Limitations on Damages
You are entitled to claim against the third party all of your
economic loss arising out of the accident, which usually
entails lost income, but can include heads of damage like lost
earning capacity or shortened working life. During the period
before trial of your court action, you can only obtain 70% of
your net income (i.e. if you received SAB, then you get nothing
more). This obviously encourages early commencement of
litigation, which has pluses and minuses.
Damages for pain and suffering are subject to two
impediments. The first impediment is that a claim for such
damages is not allowed unless you have suffered permanent and
serious disfigurement or a "serious impairment of an
important physical, mental or psychological function". The
second impediment is that there is a deductible amount of
$30,000 from damages awarded for pain and suffering in non
catastrophic cases.
5. Our Services
If there is a possibility of a law suit against the
third party, then you are well advised to hire a lawyer to
complete some searches and deliver certain information to the
potential defendants and their insurers within the first 3 or 4
months after the accident, i.e., to fulfil the requirements of
Section 258.3 of the Insurance Act and Regulations
thereunder. We can refer you to lawyers who specialize in this
field of law, but as stated above, our firm has ceased taking
plaintiff motor vehicle accident claims.
