Sorry still the hardest word in personal injury litigation

More than a decade after Ontario passed its Apology Act, sorry is still the hardest word in personal injury litigation.

The 2009 law prevents expressions of sympathy or regret from being used as evidence of liability in civil actions. However, apologies made once a legal claim has commenced are exempt from the Act, which may help explain why insurers are so insistent on taking any opportunity to reject any hint of liability for a plaintiff’s injuries.

Sometimes, all that an injury victim wants from their lawsuit is some form of accountability, whether it comes in the shape of an apology, an admission of fault by the opposing party or any kind of acknowledgement that they have been wronged.

Sadly, this is not always a realistic possibility in strongly contested litigation, as one unfortunate Ontario woman recently learned.

“No admission of liability” clause objectively implied by settlement

The case of Godoy v TSCC No. 2430 concerned a woman who suffered injuries after walking into a glass wall at a condo building in Toronto. The matter was eventually resolved at mediation, with the minutes of settlement providing for a $13,500 payment to the plaintiff, subject to a release being signed in favour of the defendants.

However, the plaintiff was not happy with the terms of the release — in particular, the inclusion of a “no admission of liability clause” by the insurance company — and refused to sign on principle, explaining that she felt harmed by the defendants’ actions.  

After reviewing the limited case law on the subject, Justice Papageorgiou wrote that the terms of any release must reflect the agreement reached by the parties and that no party to a settlement is bound to execute a “complex or unusual” form of release.

Ultimately, the judge found that the plaintiff was required to sign the release with the clause included, since it was objectively implied in the settlement and was standard in the industry.

Takeaways for injury victims

There is much to admire in the principled approach the plaintiff took to this case. The result may have turned out differently had the parties ever contemplated limiting the claim’s value in exchange for an admission of liability.

But as hard as Justice Papageorgiou’s decision may be for a layperson to swallow, it will have come as no surprise to any experienced personal injury lawyer in Oakville, considering the insurance company remained unmoved throughout from its position denying liability.

Sadly, litigation is not always the most compassionate process for plaintiffs, especially when you’re up against a large insurer making cold, calculated decisions designed purely to reduce their future exposure.

Forewarned is forearmed

In my practice as a personal injury lawyer, I try my best to help accident victims set realistic expectations about the outcome of their case early on by addressing and explaining the unique terms and clauses they can expect to encounter in a release — including an insurer’s likely desire to include a “no admission of liability” provision.  

Ahead of a mediation session, I will revisit the subject as part of our discussions around strategy so that there are no surprises for a client after an agreement has been reached in principle. When a settlement arrives in mediation, it is almost always at the end of a long and exhausting day of intense negotiations, which is not the ideal time for a detailed assessment of the key legal language that will go into the release.    

If you have been injured due to someone else’s negligence and would like to explore your legal options with a personal injury lawyer in Oakville, feel free to contact me or another member of the legal team at Edwards Pollard LLP. Call us for a free consultation at (289) 529-0404.

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