What is the impact of the absence of protective legal advice on a claim for personal injury?

Newfoundland and Labrador, Canada


The following excerpt is from Downer v Pitcher, 2017 NLCA 13 (CanLII):

I recognize that even in the early cases, such as Fry v. Lane, the absence of protective legal advice was regarded as an important factor in the granting of relief. But that is not the same as saying that the presence of advice automatically disentitles one to relief. Clearly, a person facing serious disadvantage that was capable of being taken advantage of and who proceeds in the face of comprehensive and relevant legal advice that points out the disadvantage and cautions not to proceed will face a very difficult time in being able to justify a claim for relief. But that begs the question as to what the nature of the advice is and whether there might be also other aspects of the inequality of bargaining power that might be influencing the relief-seeker to proceed anyway. What if the legal advice was incompetent or was pro forma in nature and did not address the issues under consideration? The most one can say is that the presence of advice may, in a particular circumstance, level the playing field and may remove any concerns about victimization, thereby providing a defence to an otherwise apparent claim.

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