5,230
edits
Difference between revisions of "ICBC and Personal Injury Claims (12:XII)"
From Clicklaw Wikibooks
ICBC and Personal Injury Claims (12:XII) (view source)
Revision as of 03:11, 6 August 2017
, 03:11, 6 August 2017→E. Inequality of Bargaining Power
m |
|||
| Line 71: | Line 71: | ||
The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties. | The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties. | ||
In ''Towers v Affleck'', [1974] 1 WWR | In ''Towers v Affleck'', [1974] 1 WWR 714 at 719 (BCSC), Anderson J. stated that the question to be determined is whether “the plaintiff has proved by a preponderance of evidence that the parties were on such an unequal footing that it would be unfair and inequitable to hold him or her to the terms of the agreement which he or she signed. While the court will not likely set aside a settlement agreement, the court will set aside contracts and bargains of an improvident character made by poor and ignorant persons acting without independent advice unless the other party discharges the onus on him or her to show that the transaction is fair and reasonable.” See also [http://www.canlii.org/en/bc/bcsc/doc/1975/1975canlii1091/1975canlii1091.html?autocompleteStr=pridmore%20v%20calvert&autocompletePos=1 ''Pridmore v Calvert''] 1975 CanLII 1091 (BCSC). | ||
On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked: | On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked: | ||
| Line 81: | Line 81: | ||
This reasoning relies on the plea of ''non est factum'' (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not his or her deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly his or her deed. | This reasoning relies on the plea of ''non est factum'' (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not his or her deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly his or her deed. | ||
Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid. See ''Clancy v Linquist'' | Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid. See [http://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii795/1991canlii795.html?autocompleteStr=clancy%20v%20linqui&autocompletePos=1 ''Clancy v Linquist''] 1991 CanLII 795 (BCSC), per Scarth J. | ||
In ''Mix v Cummings'' | In [http://www.canlii.org/en/bc/bcsc/doc/1990/1990canlii1/1990canlii1.html?autocompleteStr=mix%20v%20cum&autocompletePos=1 ''Mix v Cummings''] 1990 CanLII 1 (BCSC) [''Mix''], per Perry J., a general release discharging and releasing defendants from all claims, damages, and causes of action resulting, or that will result, from injuries received in an automobile accident was upheld on the following basis: | ||
#the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident; | #the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident; | ||
#the release was not the product of an unconscionable or unfair bargain; and | #the release was not the product of an unconscionable or unfair bargain; and | ||
#the plea of ''non est factum'' and want of ''consensus ad idem'' were unfounded in the circumstances. | #the plea of ''non est factum'' and want of ''consensus ad idem'' were unfounded in the circumstances. | ||
The implication of the ''Mix'' judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than he or she anticipated when signing a release will generally not invalidate the release. | The implication of the ''Mix'' judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than he or she anticipated when signing a release will generally not invalidate the release. | ||
== F. Plaintiff's Duty to Mitigate == | == F. Plaintiff's Duty to Mitigate == | ||
