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Advance Costs Awarded to Plaintiff Despite Potential Liability Issues

Lutwick v. Wood, 2016 NBQB 111

In October 2010 the plaintiff, Peter Lutwick, was injured in a motor vehicle accident as a passenger in the defendant Gerald Gaudet’s vehicle. The defendant Gordon Wood was the driver of a vehicle that hit Mr. Gaudet’s vehicle.

Mr. Lutwick filed motion for advance payment pursuant to section 256.6 of the Insurance Act of New Brunswick. More specifically, he requested an advance payment for loss of wages and the cost of medical treatment.

Mr. Lutwick argued that he should be granted advance cost because he has been totally disabled since September 2015 after he had surgery for injuries he suffered in the accident. He argued there was no guarantee he would be able to return to his pre-accident level of function or to labour intensive employment.

He sought $2,000 per month for lost income until trial, an advance payment for net past loss of income, and an advance payment for incurred medical expenses and mileage.

Reviewing the Court of Appeal cases Agnew v. Smith, 2001 NBCA 83, Justice Glendenning ruled that the test applicable to a motion for advanced payments has two stages. On stage one, the judge must assess whether the plaintiff is more likely than not to be awarded special damages. Stage two is a determination of the quantum of the advance payment.

Both defendants submitted that there was a significant dispute between the defendants as to who is responsible for the accident and that it was not clear if Mr. Lutwick would be successful at trial in a claim for past income losses or past costs of care.

Nonetheless, Justice Glendenning ruled that the liability issue was immaterial at that point and that it was for the trial judge to decide. Payment of $860 monthly, starting retroactively from September 2015, was ordered to be made by the defendants until further order of the Court.

You can read Lutwick v. Wood, 2016 NBQB 111, in its entirety here.

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