Surerus v. Leroux, ICBC Admission of Fault Case
This personal injury claim arises as a result of a motor vehicle accident which occurred in Vernon, British Columbia. Three weeks after the claimant filed the lawsuit the ICBC adjuster for the injury claim instructed her lawyer to admit fault. The adjuster gave evidence that she gave those instructions without having turned her mind to the issue of negligence. The ICBC’s position is the adjuster made the determination of fault for the accident before knowing all the facts. In her affidavit, the adjuster says at page 4:
“I determined that fault lay with the Defendant for insurance purposes as this was a rear end accident where there were no actions on the part of the Plaintiff that might have contributed to the collision.”
I have recently dealt with the issue withdrawal of admissions by personal injury lawyers and the general test for withdrawing was set out in 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582, at para. 27:
“27 As a general rule the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following factors, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of the admission and estoppel. See Meisenholder v. Wikdahl, 2005 BCSC 630 and Hamilton v. Ahmed. A deemed admission can be withdrawn even where the failure to reply was deliberate: Linear S.R.L. c. CCC – Canadian Communications Consortium Inc. 2001 BCSC 682.”
The court was satisfied that the interests of justice did not justify the withdrawal of the deemed admission. There was a delay in bringing on this application and withdrawing the admission at this late date would be prejudicial to the injury claimant because the claimant had acted to his detriment by relying on the admission. Posted by Mr. Renn A. Holness