Another shot has been fired in the ongoing judicial debate about how to deal with situations in which personal injury plaintiffs have been injured in separate accidents. We have looked at this issue in previous posts regarding Willoughby v. Weber, Broadbent v. GTTA and Misko v. Doe. The latest treatment of the issue comes from Kingston’s Madam Justice Helen MacLeod-Beliveau, in Thompson v. Sullivan.
The plaintiff was injured in two accidents, one on January 27, 2004 and the other on August 4, 2005. The injuries suffered in the two accidents were similar (neck and back pain). She did not commence an action as a result of the first accident but she did sue for damages consequent upon the 2005 MVA. On March 17, 2008, the defendants in that suit brought a third party claim against the driver in the 2004, claiming that his negligence had caused or contributed to the injuries for which the plaintiff was seeking damages. The third party claim had been brought within two years of the defendants having learned about the prior accident, but at a time when the right of the plaintiff herself to sue the driver in the 2004 accident, had become statute-barred.
The third parties brought this motion under Rule 21, asking that the third party action be dismissed or alternatively, that the plaintiff be required to limit her claim to compensation for injuries arising solely from the 2005 accident.
Justice MacLeod-Beliveau dismissed the motion, ruling that it was not “plain and obvious” that the defendants had no reasonable cause of action against the third parties. In her reasons, she considered all of the decisions mentioned above.
Her Honour pointed out, quite accurately in our view, that the Court of Appeal’s decision in Misko v. Doe was easily distinguishable because there, the plaintiff had undertaken to seek only those damages that were attributable to the accident that was the subject of his lawsuit.
After discussing the Willoughby case, Justice MacLeod-Beliveau extracted the following principle:
Together, Misko, supra and Willoughby, supra stand for the proposition that, where the plaintiff has no claim against third parties (either because of an express release, as in Misko, supra, or because of the expiration of a limitation period, as in Willoughby, supra), then the defendants are not entitled to issue a third party claim. Instead, they are immune to liability for any injuries proceeding from the previous accident, i.e. any injuries caused by the third parties. The defendants are only liable for the injuries that they caused in the second accident.
Counsel for the third parties was undoubtedly happy with this statement of the law. However, Her Honour then went on to rule that the above principle did not apply in this case and that, as a result, the third parties’ motion should be dismissed. She reasoned that this was not the type of described in cases like Misko or Willoughby, where the plaintiff had no cause of action against the third parties because of a settlement or the expiry of a limitation period. There had clearly been no settlement (since the plaintiff had never claimed against the third parties). And with respect to the limitation period, Justice MacLeod-Beliveau had this to say:
The applicable limitation period should not be that of the plaintiff as against the third parties, but rather that of the defendants against the third parties. As such, in this case, the limitation period has not expired.
Even though the limitation period for an action by the plaintiff against the third parties had expired, Her Honour was of the view that “the full compensation principle reiterated in Misko, supra renders the defendant potentially liable for damages arising from the earlier accident. Any such damages were caused by a third party, and as such, I find that the defendant is entitled to issue a third party claim.” She rejected the argument of counsel for the third parties, that the defendants in the action could only be held liable for the damages attributable to the 2005 accident. Accordingly, the third parties’ motion was dismissed.
What we find puzzling about this decision is that Justice MacLeod-Beliveau seems to have accepted the proposition, that once the plaintiff has either settled her claim in relation to the earlier accident or the limitation period for pursuing such a claim has expired, no third party claim for contribution lies. However, she held that that principle did not avail the defendants in this case, because, according to Her Honour, the relevant limitation period is not the one governing the plaintiffs‘ claim against the third parties but rather, the limitation period that applies to the defendants’ contribution claim. It was on this basis, as can be seen in the above quotation from the reasons, that MacLeod-Beliveau concluded that “the limitation period has not expired”.
On this point, she expressly differed from her colleague, Justice Beth A. Allen, in Willoughby, however she did not explain why she did so. In Willoughby, Justice Allen held that the governing limitation period was the one that applied to the plaintiff’s claim against the defendant, not the one that applied to the contribution claim.
It is not clear to us what the significance is, in this context, of the expiry of the limitation period as between the defendant and the third party (other than the basic fact that a contribution claim would be prescribed and an analysis of whether the plaintiffs are foreclosed from claiming for the earlier accident would be unnecessary). If Justice MacLeod-Beliveau’s statement of the effect of Willoughby and Misko, contained in the first-quoted passage above, is correct, then it seems to us that the relevant limitation period must be the one between the plaintiff and the third party, not the defendant and the third party.