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First Settlement Proposal Remains Confidential in Second Car Accident Case

Settlement in First car Accident

As a result of the car accident in question the claimant sustained injuries to her head, jaw, neck, shoulders, chest, back, left arm, left elbow, left wrist, left hand, left hip, left leg, and left heel.

Importantly, the claimant had suffered an injury in a another almost identical motor vehicle accident just two years before the accident in question. The defendant applied for an order that the claimant sign an authorization addressed to her prior personal injury lawyer in the following words:

production of any part of your file in respect of my motor vehicle accident which took place in Alberta on March 19,[] which refers to defines, describes or comments upon the nature and extent of my injuries arising from that accident and the effects of that accident on my physical and mental health and, in particular, any mediation brief, settlement letter, file memo, communication or similar document in that regard.

By account of some of the claimants physicians, she was doing well and not suffering any effects from the prior accident well before the occurrence of the second car accident. The claimant offered the defendant a letter from her previous lawyer confirming the terms of the settlement she received for the injuries she sustained in the prior accident, together with medical-legal documents from the previous accident. In refusing further production the Judge stated,

[31]  In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.(Gamble v. Brown,2015 BCSC 1873).

For those readers interested in the legal test for production of prior car accident records, in Dholliwar v. Yu, 2015 BCSC 670, Master Scarth sets out these principles at para. 10 for the court to consider:

a.    The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged: Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.    A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.     To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.    An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Document Discovery, Litigation Privilege, Prior Condition, privilege, Settlement privilege

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