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30 Apr 2014

Untold Riches: Past Settlements Paid to Plaintiff Will Remain Hidden

by Admin
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Hermitage-Kilkenny v. Morris, 2013 NBQB 407

In July 2010, Julia Hermitage-Kilkenny was allegedly injured in a motor vehicle accident. She commenced a civil action against the driver of the other vehicle. At her Examination for Discovery, Ms. Hermitage-Kilkenny was asked by the Defendants' lawyers about two prior motor vehicle accident claims she had brought. Both prior claims had settled by way of lump sum payment (i.e. no amounts specifically assigned for her past and future loss of income, pain and suffering damages, or other 'heads of damages'). Ms. Hermitage-Kilkenny's lawyer advised her not to tell the amounts paid to her or to disclose anything said or written during the negotiations of those settlements, claiming that these details were shielded by settlement privilege.

The defendants filed a Motion to compel Ms. Hermitage-Kilkenny to answer their questions, worrying that she would receive 'double-recovery' (i.e. new payments might compensate her for the same losses, like future loss of income or future cost of care, which were already paid to her in earlier settlements).

The Motions Judge accepted that Ms. Hermitage-Kilkenny was entitled to claim settlement privilege over the amount of her prior settlements. Also, absent some compelling reason, all communications related to the earlier settlement (including how the amounts paid related to various parts of her claims) were properly privileged.

The Motions Judge found that where these settlements were lump sum awards, simply knowing the amounts paid to Ms. Hermitage-Kilkenny would do little to prevent a risk of double recovery. 

Further, the Motions Judge found that little harm would come from shielding this information as Ms. Hermitage-Kilkenny would still have to prove that she had suffered a fresh injury, and that the effects she suffered following the July 2010 accident were linked to that new injury and not the result of some pre-existing problem. If she suffered from pre-existing injuries, this would be considered by medical experts, and ultimately her claim would be reduced by the courts.

Read the whole of Hermitage-Kilkenny v. Morris, 2013 NBQB 407 here