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08 Aug 2018

Battle of experts prevents court from awarding advance payment

by Matthew Pearn
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Dartt v. Decoste, 2018 NSSC 24

On September 3, 2015, the plaintiff Katherine Bennett was involved in a motor vehicle accident in New Glasgow, Nova Scotia. The plaintiff was a passenger in a vehicle driven by the second plaintiff, Dartt. Their vehicle was rear-ended by the defendant driver, Decoste. Decoste admitted liability for the collision, with the value of the claim still in dispute.

Bennett filed a Motion requesting an interim payment of damages before Trial, and also filed a medical report prepared by the physiatrist Dr. Thomas Loane in support of her Motion. She requested an order for payment of general damages in the amount of $45,000 to $55,000, for past loss of income of $20,484, for loss of earning capacity of $70,000 - $100,000, and for past loss of valuable services of $15,000.

The defendant Decoste opposed the Motion, filing the medical report of physiatrist Dr. Edvin Koshi along with video surveillance of the plaintiff and Discovery transcript evidence from the plaintiff.

Within the Court’s reasons, the Motion Judge noted that these interim awards are discretionary and should only be ordered when the plaintiff’s evidence is uncontradicted. Where evidence raises questions of causation and credibility, the Motion Judge should decline to make an interim award.

At the time of the Motion, the plaintiff had already been awarded CPP disability benefits. The plaintiff's physiatrist reached the conclusion that the plaintiff had developed wide-spread chronic pain because of the accident.

Meantime, the defendant's physiatrist opined that the plaintiff's pain was fibromyalgia and not caused by the accident. The defendant's video surveillance was also presented as raising issues of credibility for the plaintiff.

The Motion Judge ruled in favour of the defendant, stating that the conflicting expert reports and issues of credibility prevented the Court from approving an interim award of damages. The Motion was dismissed with costs to be resolved upon the completion of Trial.

You can read Dartt v. Decoste, 2018 NSSC 24, in its entirety here.

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