James Mays

The plaintiffs, a mother and son, were injured in a low-speed motor vehicle accident.

The son claimed the accident caused chronic pain syndrome and depression, disabling him from his employment as a security technician.

The mother claimed the accident caused a left shoulder impairment that prevented her from performing housekeeping and self-care.

The court found both plaintiffs met the statutory threshold under the Insurance Act, having sustained permanent serious impairments of important functions.

The court awarded damages for pain and suffering, past and future income loss, future care, and housekeeping/attendant care.

The plaintiffs sought an extension of time to serve a statement of claim on a contractor nearly nine years after the action was commenced, and the defendants moved to dismiss the entire action for delay.

The court found the plaintiffs’ efforts to locate and serve the contractor were lackadaisical and that significant prejudice resulted from the lengthy delay, including loss of records, faded memory, and the death of a witness.

Accordingly, the court refused to extend time for service on that defendant.

However, although the court found a period of “inexcusable delay” in prosecuting the action, it held that the remaining defendants had not demonstrated prejudice sufficient to create a substantial risk that a fair trial was no longer possible.

The motion to dismiss the entire action for delay was therefore refused.