The Timing of a Personal Injury Lawsuit
Time Limits for Bringing A Claim
Pursuant to BC’s Limitations Act, a legal action must be started in a prescribed amount of time. The default limit for bringing a claim is two years from the date that the accident gives rise to the injury or loss.
Although there is a principle called “discoverability” that can extend this time period (e.g., you don’t realize the extent of your injuries until weeks later), it is very risky to rely on this argument. In rare situations, the “ultimate limitation period” is 15 years, but, again, this extension is only for claims not detected right away (e.g., a potential medical malpractice claim). It is wise to always determine as soon as possible in considering whether or not to bring a claim.
Bring Your Claim Sooner Rather Than Later
Although you generally have up to two years to file a personal injury claim, it is always advisable to speak to a personal injury lawyer early on and to file your claim as soon as possible. One reason being a personal injury lawyer can give you advice early on to ensure that you are properly documenting your injuries and related expenses, and protecting your rights. The lawyer may also help you understand which types of expenses can and cannot be covered in the event that the third party is found liable.
Second, if you wait until the last minute to consult with a lawyer, he or she may need to spend even further time gathering evidence such as medical records in order to get the claim moving. The stage of litigation called “Examination for Discovery,” where you are questioned about your accident and its impacts, will often not be scheduled until all parties are satisfied that the relevant records have been received.
Further, you may cause yourself undue stress and pain by delaying bringing your claim. The sooner a lawyer represents your case, the less you need to worry about it, including how to file required documentation and the risk of missing deadlines. With a lawyer handling your file early, a settlement can also be more easily reached, which means you will have the financial backing to pay for medical and rehabilitation expenses that you may not have been able to afford. Having closure with a settlement your lawyer advises you to take is always better than uncertainty and the stress that goes along with an unresolved file.
Another reason it’s better to bring your personal injury claim early is that assessing the damages for your claim can take a long time. More serious cases take longer to assess how much you will recover and the future impact of the injury.
Finally, it’s better to bring your claim early as the litigation process can take quite some time. Courts have limited schedules, and getting your matter to trial — even when all goes smoothly — can take a couple of years. The sooner you can get your claim moving, the sooner you can reach a settlement, or get your matter to trial if necessary.
Overall, bringing your claim early shows that you have taken your accident and injuries seriously, and are diligently pursuing the compensation you are owed.
Settling Your Case
Your lawyer may recommend that you accept a particular offer based on the perceived chance of success that the claim will succeed at trial in combination with the true amount of losses that he or she believes to have been incurred.
Your lawyer will also be able to advise you as to the risks of not accepting a particular offer. If a settlement offer is rejected and less compensation is awarded at trial, then you, as the plaintiff, may suffer financial repercussions. In Vander Maeden v. Condon, 2014 BCSC 677 (CanLII), for example, the plaintiff succeeded at trial but the damages award was less than an offer made by the defendants in the midst of the litigation. As such, Mr. Vander Maeden was ordered to pay the defendants their legal costs after the date of the offer. This is a situation to be avoided.
When to Hold Out On A Settlement
During the course of litigation, several offers to settle may be made by the defendant party or parties that you will want your lawyer to review. Often, the initial offer is very low and a higher offer is later presented once the initial offer has been rejected.
In some cases, a defendant will intentionally delay the litigation and avoid making a fair offer in order to try to get you as the plaintiff to cave and accept the offer provided. The defendant is aware that a personal injury case can take years to resolve and you may really need money to cover your ongoing losses for medical expenses or rehabilitation.
Or, a stalemate may result when there is simply a difference in opinion as to the true extent of damages or the chance of success at trial. Settling the case before you have recovered as much as possible can be problematic if you do not accurately assess the future losses you need compensation for.
An experienced personal injury lawyer is generally best-suited to assess what strategy the defendant is employing, how strong your case is, and whether a settlement offer is unreasonably low. Of course, litigation is stressful, and it may be your personal wish not to drag the litigation on unnecessarily. A good lawyer will communicate thoroughly and fully about the strength of your case, and take into account your personal wishes as well.
Contact Kenneth Cristall Law Corporation As Soon As Possible After an Injury Accident in Vancouver
If you have been injured and believe you may have a claim against a third party, call us to get started, at 604‑654‑2250. Our team at Kenneth Cristall Law Corporation can help to get your case underway and moving along to a fair ending. Our personal injury lawyers are in Vancouver, Surrey, Langley, Coquitlam and Burnaby, BC.