Who Is Liable For Advanced Damage Before Fault Is Determined?
When someone is injured in a motor vehicle accident and is seeking damages from another party, it could be years before the situation works its way through the courts. In the meantime, the injured person may still face financial challenges as a result of the accident, such as medical bills. In some situations, the injured party might seek an advanced payment of special damages. But a recent decision issued by the New Brunswick Court of Queen’s Bench shows that securing advanced payment is not an easy thing to do, even if it can be shown that someone is at fault.
The accident occurred on August 28, 2017. The plaintiff was a passenger on a bus owned and operated by the city of Moncton (“the City”). The bus was driven by an experienced driver (also a defendant) when it collided with a pickup truck operated by another individual named as a defendant.
The plaintiff told the court she was thrown from her seat when the vehicles collided, resulting in soft tissue injuries to her back and a tear of a tendon in her shoulder, which was later identified as a torn rotator cuff. She had been off work since the time of the accident and said she experienced a loss of income amounting to $14,106.
The defendants were at odds over who was responsible for the accident, and the matter was going to go to trial. In the meantime, the plaintiff was seeking payment of advanced special damages to recuperate her lost income as well as income she expected to miss out on while healing, amounting to $30,930.65.
Determining advanced payment when fault is yet to be established
Aware that nobody had been found to be at fault yet, the plaintiff asked the court to consider evenly splitting liability between among the defendants. However, the court said that while the plaintiff should not be denied advanced payments just because of this difficulty, it was also not appropriate to simply divide the damages among the defendants. Instead, the judge stated, “it is not sufficient that I be satisfied that the Plaintiff will prove at trial that somebody is liable for the special damages – I must determine whether the Plaintiff is likely to prove that each Defendant is liable before I can award an advance payment as against that Defendant.”
In this case, the court found that the plaintiff had not met the burden to establish liability for every defendant, but did find liability had been established for the driver of the truck. As a result, it was only the one defendant who was ordered to pay an advance in damages ($25,592.93).
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