ICBC Application To Withdraw Liability Admission Denied
Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court. ¬†When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in¬†reasons¬†for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a¬†vehicle¬† ¬†He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury. ¬†ICBC initially looked at the liability¬†situation¬†and placed the¬†Defendant¬†at fault. ¬†After the lawsuit started¬†liability¬†was formally admitted in the pleadings. ¬†As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence. ¬†The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation. ¬†In dismissing the application Master Bouck provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July¬†2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel‚Äôs initiative.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The only so-called ‚Äúnew‚ÄĚ evidence is the production of Mr.¬†Norris‚Äô pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris‚Äô doctor‚Äôs office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements ‚Äúthrown away‚ÄĚ to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant‚Äôs costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the¬†Supreme Court Civil Rules.¬†Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
¬†¬†¬†¬†¬†¬†¬†¬†¬†This case bears some resemblance to the circumstances discussed in¬†Rohling (Guardian ad litem of) v. Proudman,¬† B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†A similar analysis of this question is given in¬†Oostendorp v. Sarai,¬† B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses‚Äô memories:¬†Rohling (Guardian ad litem of) v. Proudman¬†at para.¬†19.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the result, I find that the application ought to be dismissed, with costs to the plaintiff.