Interim Payments of Damages – Hynes v Jones
9/30/2014 5:06 PM
The recent Nova Scotia case of Hynes v Jones arose as a result of the Plaintiff, who had been crossing the street within a marked crosswalk, having been struck by a car driven by the Defendant. The Defendant admitted liability but the amount of damages to which the Plaintiff was entitled remained unresolved. The Plaintiff, who sustained many injuries in the accident, applied to the Court for an interim payment of damages to help cover the costs he was incurring as a result of his injuries while waiting for the matter to proceed to Trial. If granted, the Defendant would have been required to pay the Plaintiff a reasonable portion of the total damages the Plaintiff would be likely to receive prior to the Trial taking place.
The issue in applications for interim payment is whether the injured party has shown sufficient evidence to allow the Court to assess the total amount of damages he or she is likely to recover. It is important to note that an application for interim damages is not the same as a Trial – it does not resolve all factual disputes, nor will it consider the issue of credibility. An award for an interim payment is not even final, because if the interim payment is higher than the total amount awarded at Trial, then the Plaintiff must fulfill an undertaking to repay the difference. In making such an award, the Court must therefore strike a balance between ensuring that injured plaintiffs are not impoverished while in a state of disability, and that defendants are not disadvantaged by being forced to pay money that may, in the end, be excessive.
To support his claim for interim payment, the Plaintiff in Hynes v Jones provided a wide variety of evidence, including emergency room records, CT-scans, surgical records, doctor’s notes, and notes from his physiotherapist. From these, the Court held that while some of the Plaintiff’s injuries were undisputed, the extent of the consequences from many of his injuries were yet unknown. The consequences of injuries – how well they would heal and when – can have a significant impact on the total damages award, yet the evidence presented by the Plaintiff did not speak to this. As such, the Court in Hynes v Jones found the evidence insufficient to adequately assess what the total damage award was likely to be and therefore denied the Plaintiff’s application for interim payment.
The full text of Hynes v Jones can be found at http://canlii.ca/t/g8n86.
If you have questions or would like to discuss this topic further, please contact Sandra L. McCulloch at Patterson Law at 1-888-897-2001.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. Please note as well that many of the statements are general principles which may vary on a case by case basis. If you have any further questions, please consult a lawyer.