Canada Insurance Lawyer & Attorney : Michael Thomas of Harper Grey Law Firm : British Columbia, Vancouver

For those that do not wish to use the link, I have included the full text of the article below - however the formatting is a little off and the footnotes have been removed. 

This article will analysis the decision of Craig v. Insurance Corporation of British Columbia 2003 BCSC 1856 upheld on appeal at 2005 BCCA 275. Essentially Craig v. ICBC stands for the proposition that the discoverability provisions contained in the Limitation Act will not postpone the running of the limitation period for minor injuries that worsen substantially over time; or when independent, more serious, injuries are discovered after the expiration of the initial limitation period. It can be argued that the reasoning in Craig v. ICBC could be used to argue that the limitation period for an owner of a motor vehicle injured in an automobile accident begins as soon as vehicular damage is discovered, and would bar any claim for damages arising after the expiration of the initial limitation period for vehicular damage.

In Vance v. Peglar (1996), 22 B.C.L.R. (3d) 251 (B.C.C.A.), Chief Justice McEachern provided his understanding as to why the law includes limitation statutes, by referring to the following passage from the Report of the Ontario Law Reform Commission, Report on Limitation of Actions 9, 10 (1969), adopted by the British Columbia Law Reform Commission’s Report on Limitations, (Project No. 6), 1974, Part II, General:

These laws are designed to prevent persons from beginning actions once that reasonable time has passed. Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter. Nor is it in the interests of the community that disputes should be capable of dragging on interminably. Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: Documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute.

Limitations on the use of the Discoverability Principle
to Postpone Limitation Periods

The limitation period for a cause of action in respect of personal injury is stipulated in section 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266, which imposes a 2 year limitation. The Court of Appeal in Bera v. Marr, [1986] 1 B.C.L.R. (2d) 1 (B.C.C.A.), determined that s. 3(2) of the Limitation Act defined the beginning of the limitation period as the date on which the right to bring the cause of action arose; the date upon which all elements of the cause of action came into existence. Therefore in personal injury actions an injured party has two years from the time that all elements of a cause of action arise to commence an action against a tortfeasor.

Once the limitation period has expired, the Plaintiff has the onus to prove not only that the running of time should be postponed pursuant to the postponement provisions in the Limitation Act; but that the he or she acted reasonably in not pursuing his or her potential action within the limitation period. There are rather strict interpretative rules that a Plaintiff must overcome in obtaining a postponement of a limitation period. The determination of whether a claim is statute barred by the limitation period does not fall within the discretion of the Court. A Plaintiff seeking to invoke a postponement of a limitation period must specifically plead the basis for the postponement, typically in Reply to a Statement of Defence. The sole question to be addressed is whether or not the claim falls within the Limitation Act. The British Columbia Court of Appeal has clearly stated that simple ignorance of a cause of action is not sufficient to postpone the running of a limitation period:

Notwithstanding the strict interpretative rules that have been placed on the judiciary in interpreting the Limitation Act, the legislation provides a flexible framework in which the running of time may be postponed. The main feature of the legislation is the discoverability provisions set out in section 6(4) and (5) of the Limitation Act. Section 6(4) and 6(5) read:

 

1. the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.

   (5) For the purpose of subsection (4),

   (a) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require,

   (b) "facts" include

   (i) the existence of a duty owed to the plaintiff by the defendant, and

   (ii) that a breach of a duty caused injury, damage or loss to the plaintiff,

   (c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and

    

2. if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person.

In Ounjian v. St. Paul’s Hospital (Unreported January 23, 2002), Mr. Justice Tysoe, referred to Mr. Justice Lambert’s Reasons regarding the interpretation of section 6(4) in Vance v. Peglar (1996), 22 B.C.L.R. (3d) 251 (B.C.C.A.) and distilled section 6(4) and 6(5) into four components:

 

1. Impact of change in severity, or ignorance of an Injury
2. Craig v. Insurance Corporation of British Columbia
3. Implication of subsequent, independent, damages
4. Foley v. Greene
5. Ramifications on the discoverability principle

The issue of whether ignorance of, or mistake of the extent of, injury is an appropriate basis for postponing a limitation period was considered by the Supreme Court of Canada in Peixeiro v. Haberman [1997] 3 S.C.R. 549. The facts of Peixeiro v. Haberman are somewhat complex and require brief elaboration: Mr. Peixeiro was involved in a car accident in 1990 where he suffered minor injuries. In Ontario there is a two year limitation period for commencing an action to recovery for personal injuries suffered in motor vehicle accidents. However, Ontario has an additional statutory limitation which prohibits one from commencing an action for personal injury resulting from motor vehicle accidents unless the injuries cause a permanent serious impairment of an important bodily function. In 1993 Mr. Peixeiro discovered that he suffered from a herniated disc which resulted in partial paralysis of his legs and required major surgery. He commenced an action to recover damages for the 1990 accident. The Supreme Court of Canada was asked to consider whether the action was statute barred pursuant to the two year limitation period.

The Supreme Court of Canada ruled that the discoverability principle postponed the running of the limitation period such that Mr. Peixeiro could commence his action. The postponement of the limitation period was based on the determination that the injuries suffered by Mr. Peixeiro prior to 1993 were not sufficiently severe to trigger the minimum threshold on which an action could be commenced in Ontario. Therefore, the discoverability rule postponed the limitation period until Mr. Peixeiro discovered that his injuries constituted a permanent serious impairment of an important bodily function. Of significance is the fact that a unanimous court noted that ignorance of or mistake of the extent of damages does not justify a postponement of the limitation period. Major J., for the Court noted:

17. While the respondents knew of some injury, they did not know within the limitation period that the damage Mr. Peixeiro sustained as a result of the first accident was a herniated disc. They did not know that it met the threshold for an action under s. 266(1) of the Insurance Act. He did not sue because he thought that his injuries were not serious enough to qualify for compensation in tort.

18. It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

19. However, it was submitted that because of Ontario's no-fault insurance scheme at the time of the accident, the starting point of the running of time is when the damages are known to comprise "permanent serious impairment" within the meaning of s. 266 of the Insurance Act. The argument was that the intervention of the liability immunity, one of the mandatory features of Ontario's no-fault system, alters the time of accrual of the cause of action until the material fact of sufficient injury is reasonably discoverable.

[Emphasis added]

 

 

The implication of Peixeiro v. Haberman is that ignorance or mistake as to the extent of one’s injury is not a basis for postponement of a limitation period. The issue of the impact of a change in the severity of injuries suffered by a plaintiff on the postponement of the limitation period was ruled on by our Courts on five occasions.

The issue was first addressed by Seaton J.A. in Grayson v. Canada Safeway Limited, [1981] 2 W.W.R. 321 (BCCA). Seaton J.A., in interpreting the Limitations Act, S.B.C. 1975, c. 37 cited with approval the following passage from a decision of Lord Denning in Goodchild v. Greatness Timber Co. Ltd., [1968] 2 Q.B. 372 at 379 (C.A.), who was dealing with a three year limitation period in the English Limitation Act of 1963:

His [the plaintiff's] time will not be extended under the Limitation Act, 1963, simply because he finds out more about the accident or because his injuries turn out to be worse than he thought.

[Emphasis added]

A year later the issue, arose again, except in the context of property damage as opposed to personal injury. In Allen v. Bapco Paint Ltd. (1982) 34 B.C.L.R. 242 (BCSC) a Plaintiff was barred from brining a claim for defective wood sealer. In the early summer of 1977, the plaintiff noticed that the siding had begun to bleach; but he did not commence an action until 1980 when the damage to the exterior siding of his house was much more severe. The court noted that:

The plaintiff was aware of the deterioration and sought advice in the summer of 1977. He had a reasonable prospect of maintaining an action at that time and was accordingly caught by s. 6 [of the Limitation Act]. The limitation was not suspended simply because the full extent of damage was unknown.

The common thread arising from the caselaw appears to be a determination of whether the Plaintiff suffered real damage as opposed to purely minimal damage in order to determine when the cause of action accrued. This distinction was summarized by Newbury J., as she then was, in Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd. [1995] B.C.J. No. 111 (BCSC):

 

 

The line I would be required to draw is a fine one: on the one hand there is authority that "real damage as distinct from purely minimal damage" must be suffered for the cause of action to accrue (per Lord Evershed in Cartledge v. E. Jopling & Sons Ltd. [1963] 1 All E.R. 341, quoted by the Supreme Court of Canada in John Maryon International Ltd. v. New Brunswick Telephone Co., Ltd. (1982), 141 D.L.R. (3d) 193 at 236); while as a corollary to that principle, it is said that "if the injury was from the beginning fairly serious, or at any rate sufficiently serious to make it worthwhile to bring an action", then the plaintiff must do so and that "the time will not be extended simply because it turns out after [6] years to be more serious than he at first thought." (per Lord Denning, M.R. in Goodchild v. Greatness Timber Co. Ltd. [1968] 2 Q.B. 372, quoted by our Court of Appeal in Grayson v. Canada Safeway Ltd. [1981] 2 W.W.R. 321 at 326.).

[Emphasis added]

The issue was raised again in Hughes v. Proline Management Ltd., [1996] B.C.J. No. 1669, where Quijano J. came to the same conclusion, without the benefit of the previous jurisprudence:

12. In the case at bar, there is no question that the plaintiff was aware from the moment she fell into the elevator car that she had suffered an injury as a result of the floor of the car being some four inches below the level of the hallway floor.

13. It is argued on her behalf that because she initially thought it was a minor injury, the limitation period should not begin to run until she realized that the injury was more serious. It was also argued that it was reasonable for her to take no steps to determine the extent of the injury or to get legal advice with respect to a claim for damages until she realized that the injury was not healing. It was urged on me to employ the reasonable standard in this way and find that the limitation period did not begin to run until the plaintiff realized that the injury did not seem to be simply a muscle pull and sought medical attention.

14. Having regard to the passages referred to from Levitt v. Carr 66 B.C.L.R. (2d) 58 (BCCA), it is clear that section 6(3) is not to be interpreted in that way. The provisions of the section apply to the circumstance in which the plaintiff does not know that they have suffered injury at the time the injury happens and only becomes aware of having suffered injury later. In that situation the limitation period would be postponed until the plaintiff became aware of having suffered injury, regardless of its perceived severity. 6(3) does not refer to the time when the plaintiff realizes that the value of the claim is worth pursuing. Where, as here, the plaintiff knew she had been injured, but believed that the injuries were not so serious as to warrant a claim for damages until the pain got worse, her decision not to make inquiries to determine the extent of her injuries does not act to postpone the commencement of the limitation period. She had, at the time of the injury, sufficient facts within her means of knowledge to allow a determination that "an action on the cause of action would . . . have a reasonable prospect of success." whether it was worth pursuing is not relevant.

[Emphasis added]

 

The issue was considered by Madame Justice Satanove in Craig v. Insurance Corporation of British Columbia. However in Craig v. Insurance Corporation of British Columbia the Court was asked to consider the issue of postponement where a plaintiff initially suffered a minor injury; but discovered that she had also suffered an independent, more serious, injury after the expiration of the initial limitation period. A brief elaboration of Ms. Craig’s medical condition and the underlying facts is necessary.

Ms. Craig was involved in an automobile accident in 1978 in which she suffered a fracture of her seventh cervical. She suffered from some headaches and back pain as a result of the accident. Her physician advised her in 1983 that she had suffered the fracture; and that the fracture was responsible for her headaches and back pain. Both parties agreed that the limitation period for injuries resulting from the fractured cervical would have expired in 1985. In 1999 the Plaintiff was advised that as a result of the accident she had developed a condition known as odontoidium and that she had a hypoelastic odontoid. Odontoidium has potentially life threatening implications as sever spinal cord injury could result from activities of daily living; the condition also causes headaches and back pain.

The Plaintiff argued that the odontoid condition constituted a second independent injury and that the running of the limitation period was therefore postponed until 1999; when the injury was discovered. Madame Justice Satanove ruled that two independent actions could not arise from one tortuous act; applied Grayson v. Canada Safeway Limited and Hughes v. Proline Management Ltd., and determined that the limitation period expired in 1985. Satanove J. notes:

25. The plaintiff's proposition that the odontoid condition was a different and more severe injury than the fractured C7 vertebra and consequently the time limit for claiming damages for this injury should not commence until the plaintiff discovered this injury in 1998, is not sound in law.

26. In 1967 the Supreme Court of Canada in Cahoon v. Franks (1967), 63 D.L.R. (2d) 274 clearly stated that there is only one cause of action for a single wrongful or negligent act and damages resulting from that single tort must be assessed in one proceeding, regardless of their nature.

27. In Grayson v. Canada Safeway Limited, [1981] 2 W.W.R. 321 (B.C.C.A.), Seaton J.A. was dealing with the Limitations Act, S.B.C. 1975, c. 37. He cited with approval the following passage from a decision of Lord Denning in Goodchild v. Greatness Timber Co. Ltd., [1968] 2 Q.B. 372 at 379 (C.A.), who was dealing with a three year limitation period in the English Limitation Act of 1963:

[A plaintiff's] time will not be extended under the Limitation Act, 1963, simply because he finds out more about the accident or because his injuries turn out to be worse than he thought. ...But if the injury was from the beginning fairly serious, or at any rate sufficiently serious to make it worth while to bring an action, then he must bring it within the first three years. The time will not be extended simply because it turns out after three years to be more serious than he at first thought

28. More recently, Quijano J. in Hughes v. Proline Management Ltd., [1996] B.C.J. No. 1669 (S.C.) made similar comments after having considered the decision of our Court of Appeal in Levitt v. Carr, supra.

29. Of course if the plaintiff's injury to the C7 vertebra discovered in 1983 had been of a trifling nature, my opinion might be different since insignificant injuries will affect the assessment of the action's likelihood of success. However, Dr. Grant obviously regarded the fractured C7 as the more significant injury, not the absence of the odontoid peg, because he attributed the plaintiff's complaints to the former injury and likely never mentioned the latter. Furthermore, as of 1983 the plaintiff regarded the C7 fracture as the root of her ongoing ailment, whether or not it was in fact the cause.

30. Therefore, for all of the above reasons I find that the negligence claims against ICBC and Mr. Spence were time barred after 1985.

[Emphasis added]

One could interpret Madame Justice Satanove’s decision on the basis that there is no difference at law between discovering that an injury is more severe than it first appeared; and suffering a minor injury and then discovering a second, independent, and more severe injury at a later date. This rationale is compelling since the basis that a Plaintiff would seek a postponement of the limitation period in the former case would be based on the proposition that the minor injury underwent a fundamental change, such that the true nature of the injury was not discoverable until the Plaintiff was able to ascertain it’s true, severe, nature. Therefore, there is no distinction at law between a minor injury increasing in severity and the discovery of a second independent injury.

However, Madame Justice Satanove’s reliance on Cahoon v. Franks (1967), 63 D.L.R. (2d) 274 suggests a more general interpretation; that a Plaintiff only has one potential action for any tortuous act committed against him or her. Craig v. Insurance Corporation of British Columbia was upheld by the British Columbia Court of Appeal. The Court of Appeal did not consider the multiple action aspect of Madame Justice Satanove’s decision, and dismissed the claim on the common law principle that the limitation period commences once a legitimate injury is discovered. Lowry J.A., for the court, notes:

¶

¶

¶

18 It was conceded that at common law ignorance of or mistake as to the extent of damages does not delay time under a limitation period. The authorities are clear that the exact extent of the loss of the plaintiff need not be known for the cause of action to accrue. Once the plaintiff knows that some damage has occurred and has identified the tortfeasor (see Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758 (H.L.), at p. 772 per Lord Reid, and July v. Neal (1986), 57 O.R. (2d) 129 (C.A.)), the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

¶

 

As noted by the Court of Appeal, the concept that a Plaintiff may commence only one action to recover damages from a tortuous act is well grounded in the common law. In Fitter v. Veal (1701) 12 Mod. 542 (sub. Tit Fetter v. Beale) 88 E.R. 1506, approved in Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758 (H.L.), the Plaintiff recovered damages from the Defendant but then commenced a second action for additional damages when he discovered that his injuries were more serious than he had thought after he had recovered for injuries in the initial action for assault and battery. It was held that the Plaintiff had only one cause of action which had been wholly extinguished by the first judgement.

The difficulty appears when one considers that fact that at common law one could commence two actions from one tortuous act if the Plaintiff suffered independent heads of damages. In Brunsden v. Humphrey (1884) 14 Q.B.D. 141 (C.A.) a Plaintiff successfully sued for property damage inflicted on his cab in one action and for personal injuries suffered in the same accident in a second subsequent action. In Brunsden v. Humphrey the majority of the Court determined that the Plaintiff had two independent rights: the right to security for his person; and the right to have his enjoyment of his goods and chattels undisturbed by others. However, English common law still upheld the principle that only one action could be commenced for each head of damages. For example in Derrick v. Williams [1939] 2 All E.R. 559 (C.A.), a Plaintiff recovered damages under one head of damage; but was barred from commencing a subsequent action to recover further damages under the same head of damages; even thought the damages for which the second action was brought did not exist at the time that the first action was ruled upon.

Although Brunsden v. Humphrey was followed in British Columbia in Sandberg v. Giesbrecht (1963) 42 D.L.R. (2d) 107 (B.C.S.C.), the Supreme Court of Canada rejected Brunsden v. Humphrey, and determined that one action existed for a Plaintiff’s damages arising from a tortuous act in Cahoons v. Franks [1967] S.C.R. 455. In Cahoon v. Franks an action was commenced for property damage to the Plaintiff’s car within the limitation period. After the expiry of the limitation period, the Plaintiff attempted to amend his pleadings to include a claim for personal injuries along with the claim for property damage. The Supreme Court of Canada determined that the claim for personal injuries did not constitute a new separate cause of action, and that adding a claim for personal injuries merely constituted an amendment to the pleadings of the original action. Hall J., cited the opinion of Porter J.A. of the Alberta Court of Appeal at pages 459 – 60:

…[T]he "factual situation" which entitles the plaintiff here to recover damages from the defendant is the tort of negligence, a breach by the defendant of the duty which he owed to the plaintiff at common law which resulted in damage to the plaintiff. The injury to the person and the injury to the goods, and perhaps the injury to the plaintiff's real property and the injury to such modern rights as the right to privacy flowing from negligence serve only as yardsticks useful in measuring the damages which the breach caused. …

To deny this plaintiff the opportunity to have a court adjudicate on the relief which he claims merely because it lacks ancient form would be to return to those evils of practice which led to judicial amendment and the ultimate legislative abolition of "forms of action". …

The "factual situation" which gave the plaintiff a cause of action was the negligence of the defendant which caused the plaintiff to suffer damage. The single cause of action cannot be split to be made the subject of several causes of action. …

The decision in Brunsden v. Humphrey may well have persisted in Great Britain largely because the courts were bound by it. Free as we are to apply reason unhampered by precedent, I am of the opinion that the principle of Brunsden v. Humphrey ought not to be adopted.

Hall, J. concluded at page 460 that,

"Brunsden v. Humphrey is not now good law in Canada and ought not to be followed.".

[Emphasis added]

Flemming in the Law of Torts, 9^th ed., notes that the dominant American practice is that a Plaintiff can sue only once for the same accident. In Talbot v. Berks CC [1994] QB 290 (C.A.). England also retreated from the rule in Brunsden v. Humphrey.

Cahoon v. Franks

It is clear from a reading of Cahoon v. Franks, supra, that the Supreme Court of Canada has decided that negligence arising out of a motor-vehicle accident case gives one cause of action only against a particular defendant and that this single cause of action cannot be split to be made the subject of several causes of action depending on the type of damages claimed. Hence, all claims for damages, be they property or for personal injuries, in these circumstances arise out of the one cause of action only and all must be tried together in the one lawsuit.

[Emphasis added]

Although Baker et al. v. Spain et al. and Cahoon v. Franks were both decided prior to the advent of the discoverability principle in Kamloops (City of) v. Nielsen [1984] 2 S.C.R. 2, both cases have been followed after the implementation of the discoverability principle in other jurisdictions: Shanks v. J.D. Irving Ltd. [1985] N.S.J. No. 119 (NSSC) and Jackson v. Houle Estate [1991] S.J. No. 130 (SQB). These cases were all decided on the principle of res judicata, that is since an action had already been tried for property damage, any claim attached to the action for personal injury was res judicata.

 

This issue was considered, in a different context, by the Newfoundland Supreme Court (Trial Division) in Foley v. Greene (1990) 74 D.L.R. (4^th) 280. In Foley v. Greene, the Plaintiff was injured in a motor vehicle accident in May 1984 and he suffered a hairline fracture to his jaw, which was accompanied by a darkening of his teeth which required medical treatment, including minor dental surgery. Although the Plaintiff was aware of the injury, he did not commence an action against the Defendant. In July, 1986, the Plaintiff discovered that he had developed anklyosis of the tempormandibular joint which required major surgery. Unfortunately the limitation period expired two years after the accident. The Court was asked to consider whether the action was barred by the two year limitation period.

Barry J. conducted a concise review of the law in this area, and concluded that the Plaintiff’s initial injuries were de minimus, and following Cartledge v. E. Jopling & Sons Ltd, that the anklyosis constituted a material fact that was not present until July, 1986, and that the action was therefore not barred by the limitation period. Barry J. noted:

In any event, while the injuries known before 1985 were not trivial ones in terms of the impact upon the short term physical condition of [the Plaintiff], I find that they were trivial in terms of the long term physical condition and the compensation which one would reasonably have expected to be able to recover for those injuries. The injuries would not have justified [the Plaintiff] or any reasonable person commencing an action immediately …. The damages recoverable would not have made such an action worthwhile. For a cause of action to arise, damage must be "beyond what can be regarded as negligible." See Lord Reid in Cartledge, at 771-72. The ankylosis, I find, was a material fact on which the cause of action was based. Central Trust. I hold that the trivial injuries did not give rise to a cause of action. No cause of action arose until the more serious ankylosis problem manifested itself. Demeyere; Dennis; Bowen; Johnson.

The result might have been different if the known injury was such as to put the average reasonable person, or possibly even a reasonable general medical practitioner, on notice that latent physical problems might reveal themselves subsequently. Whiplash cases come to mind in this context. But, considering the evidence on the rareness of the onset of ankylosis, I believe this is an exceptional case. I do not believe it reasonable to expect the average reasonable person or medical practitioner to conclude that any jaw injury should put them on notice of the possibility of ankylosis. Central Trust.

[Emphasis added]

However, Barry J. was clearly influenced by the dicta in Brunsden v. Humphrey and, likely in obiter, indicates that he would follow the reasoning in Brunsden v. Humphrey:

In Stroud's Judicial Dictionary of Words and Phrases (5th ed. 1986), Vol. 1, at 380 it is stated:

A 'cause of action' does not arise out of a tort causing damage, or out of a tort not actionable without special damage, until damage done; and accordingly, the Limitation Act, 1623 ... does not begin to run for such a tort until damage happens; and each recurrence of a distinctly new damage (as distinguished from a development of an old one Fetter ...), gives rise to a fresh cause of action ... Darley ...).

Where a person recovered judgement for damage caused his vehicle, he was not estopped from bringing an action for his personal injuries; each class of injuries and damage, in that case formed a "cause of action". Brunsden v. Humphrey (1884), 14 Q.B.D. 141 (C.A.). The majority of the Court found there were two independent "rights", the right to security for his person and the right to have his enjoyment of his goods and chattels undisturbed by others. It stated that one test for ascertaining whether the judgement recovered in one action is a bar to a subsequent action is whether the same sort of evidence would prove the Plaintiff's case in the two actions. I find the dissenting opinion of Coleridge, C.J. persuasive, in his logic though not his result, where he stated, at 153:

... it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and in his leg, but can bring two, if besides his arm and leg being injured his trousers which contain his leg, and his coat-sleeve which contains his arm, have been torn.

The Chief Justice would not have allowed the second action in either case. I agree with the majority that the second action should be allowed for the personal injuries but, with respect, I believe it is merely begging the question to draw a distinction by labelling one situation as a case of separate "rights". In my opinion a court could just as easily proceed on the basis of viewing the "right" to protection of one's arm as separate and independent from the "right" to protection of one's leg, so as to permit a second action for a separate, newly discovered, head of damage. I believe anything to the contrary in Brunsden to be obiter dictum.

Barry J. makes no mention of Cahoon v. Franks, orrecent English or American jurisprudence in his judgement; and relies upon the New Zealand decisions of Bowen v. Paramount Builders Ltd; and Johnson v. Mount Albert B.C., and the English decision of Dennis and another v. Charnwood Borough Council, [1982] 3 All E.R. Despite the fact that Cahoon v. Franks is not mentioned in his decision, Barry J. relies upon the advent of the discoverability principle as representing a potential change in the law with respect to the rejection of Brunsden v. Humphrey. Barry J. notes:

I believe that, whatever the rule in other jurisdictions, in Newfoundland, since the decisions in Kamloops and Central Trust, it is possible for there to be two causes of action for personal injury arising from the same breach of duty, where there subsequently arises a physical problem that is significantly different in kind from the problem initially known.

Noteworthy is the fact that the Supreme Court of Canada’s rejection of Brunsden v. Humphrey in Cahoon v. Franks was decided prior to the advent of the discoverability principle in Kamloops (City of) v. Nielsen.

 

(1990) 74 D.L.R. (4^th) 280 was applied by our County Court in Baker et al. v. Spain et al. [1974] 1 W.W.R. (BCCC); for the proposition that only one cause of action arises against a particular defendant from a motor vehicle accident, and that the cause of action cannot be split to be made the subject of several causes of action. Mr. Baker recovered for property damages to his vehicle suffered in a motor vehicle accident through a small claims action. He then attempted to recover damages for personal injury in the county court. Darling J. dismissed the personal injury action noting: 16 I consider that common law principle governs in this case. 15 It is well recognized in Canadian jurisprudence that ignorance of the extent of injury will not of itself serve to postpone the running of the time in which to commence an action. A relatively recent statement to that effect is found in the decision of the Supreme Court of Canada in Peixeiro v. Haberman, [1997] 3 S.C.R. 549. The case was concerned with legislation that precludes actions for personal injury other than injury causing a permanent serious impairment of an important bodily function. The plaintiff did not commence an action until it became evident that he had been injured in that way and a question of the limitation period applicable arose. However, in the course of giving judgement, speaking for the court, Major J. said: 14 Unlike Novak, no question arises here as to whether the plaintiff was psychologically and emotionally able to embark on litigation before the prescribed limitation period expired. In this case, subject to taking advice on her legal position, the plaintiff had all the facts necessary to commence an action with a reasonable prospect of success for the significant injury she had suffered and from which she continued to suffer in May 1983. What had changed in the fall of 1999 was that she was made aware of a serious condition resulting from the injury to her neck she sustained in the 1978 accident. 13 In my view, there is little merit in the plaintiff's contention. In May 1983, she was told that the persistent symptoms were caused by the fact that she has suffered fractured vertebrae which could only have occurred in the 1978 accident. It was open to her to take the same kind of advice on her legal position then as she took in the fall of 1999. Given the duration and magnitude of her suffering, it was advice that a reasonable person could have been expected to take. There was nothing about the plaintiff's circumstances in May 1983 so serious, significant, and compelling that precluded her from being able to take appropriate advice and pursue any legal remedy that was available to her. ...But if the injury was from the beginning fairly serious, or at any rate sufficiently serious to make it worth while to bring an action, then he must bring it within the first three years. The time will not be extended simply because it turns out after three years to be more serious than he at first thought.

The jurisprudence in British Columbia appears to conclude that the limitation period will commence once a Plaintiff has, or ought to have, discovered, a viable cause of action for any head of damage; and that only one action can be commenced by a Plaintiff for damages arising from one tortuous event. The implications of this is that the limitation period for all potential heads of damage, for an owner of a motor vehicle injured in an automobile accident, would commence as soon as he or she recognized that he or she suffered damage to their vehicle; despite the fact that other heads of damages may not accrue until after the expiration of the limitation period.