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Difference between revisions of "ICBC and Personal Injury Claims (12:XII)"
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ICBC and Personal Injury Claims (12:XII) (view source)
Revision as of 23:02, 19 June 2016
, 23:02, 19 June 2016→E. Inequality of Bargaining Power
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== E. Inequality of Bargaining Power == | == E. Inequality of Bargaining Power == | ||
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. 714 at 719 (BCS C), 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 ''Pridmore v Calvert'' (1975), 54 D.L.R. (3d) 133 (BCCA.). | |||
On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked: | |||
#Was there inequality of bargaining power? | |||
#If so, would it be unfair or inequitable to enforce the release of claim against the weaker party? | |||
Where a plaintiff signs a Release of Claim, the defendant will not be able to dismiss a claim the plaintiff subsequently makes using Rule 9-7 of the ''BC Supreme Court Civil Rules'', if the evidence leads the court to conclude that the plaintiff was misled, even if unintentionally, into believing the document signed was releasing claims in areas that the plaintiff believed to be irrelevant. | |||
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'' (1991), 2 CCL.I. (2d) 63 (BCSC), per Scarth J. | |||
In ''Mix v Cummings'' (1990), 46 CCL.I. 203 (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 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 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. Dealing with Lawyers == | |||
Most personal injury lawyers will take motor vehicle accident claims on a contingency basis. Contingency fees are calculated as a percentage of the gross sum that is recovered. Lawyers are reluctant to work on a contingency basis, unless there is a good chance that they will recover damages for the claimant. If a case does not appear winnable, lawyers may ask the claimant to pay an hourly rate, or at least to pay disbursement costs up front. | |||
=== 1. Contingency Fees === | |||
Contingency fees usually range between 20 percent and 25 percent if the case is settled before trial, and 33 percent if the case goes to trial. Some lawyers use a sliding scale, so that the fee increases as the trial date approaches. The Law Society imposes limits on contingency fees, and the claimant is unlikely to encounter lawyers who charge more than 33 percent. | |||
=== 2. The Contingency Fee Contract === | |||
The contingency fee contract must be in writing and must contain a provision that it is the claimant’s right to have the contract reviewed by the Supreme Court for reasonableness. | |||
12-28 | 12-28 | ||