Carfra Lawton LLP | Victoria BC

Hasty Admission of Liability allowed to be withdrawn

Defence counsel in Monks v. Mohammed, 2015 BCSC 2308 filed a Response to Civil Claim admitting liability on behalf of the defendant two days after receiving the file materials in a motor vehicle accident claim. Counsel’s initial instructions were to admit liability in circumstances where the defendant driver had “blacked out” prior to running a red light and causing the accident. Less than a week after receiving the initial file materials, but after filing the response to civil claim, defence counsel was instructed to deny liability for the accident and to plead the defence of inevitable accident.

Defence counsel promptly contacted plaintiff counsel advising that the admission of liability may have been in error and sought consent to withdraw the admission. Such consent was not forthcoming, and a year after the response was filed, defence counsel filed an application seeking to amend the response to deny liability and plead inevitable accident. In granting the application, Master Scarth found that the plaintiff would not be prejudiced by the withdrawal of liability other than having to prove liability. He further found that the defence of inevitable accident had not been fully investigated prior to the admission, and that there was a triable issue. He concluded that the interests of justice required the court grant leave to amend the response to withdraw the admission.

Withdrawing an admission of liability in a Response is difficult. Although the defendant was successful in this case, it highlights the need for good communication between counsel and their clients prior to deciding to admit liability.

Case Law study by Chelsea Lott.