On August 28, 2008, Tammy Lee Arsenault was stopped at a yield
sign when her car was hit from behind by a vehicle driven by Rachel
Comeau. Arsenault went to hospital with complaints of soft-tissue
injuries and jaw pain.
After the car crash, Arsenault continued to run a day-care from
her home, then worked at an after-school gymnastics program, then
at an elder-care business. In May of 2011, Arsenault left her job,
claiming that pain from her 2008 injuries prevented her from
continuing to work.
Arsenault filed a lawsuit against Comeau. In January of 2015,
she filed a Motion requesting a pre-trial award for all her lost
income between 2011 and 2015. She also asked for monthly income
replacement payments up until her claim was brought to trial.
Under New Brunswick's Insurance Act, a Plaintiff hurt in a
car crash can request an advance payment of financial losses
suffered before trial. The Motion Judge hearing the request will
make an early award if satisfied that the Plaintiff will, more
likely than not, receive this money after trial.
Here, the Motion Judge refused Arsenault's request.
Characterizing the crash as a minor one, and noting that
Arsenault's injuries are subjective and difficult to pin down,
the Motion Judge stated that before he could make any early award
he needed to be persuaded by the medical evidence.
The Motion Judge reviewed Arsenault's medical reports, which
appeared to support a diagnosis of fibromyalgia. However, the
Motion Judge noted that these reports also suggested that Arsenault
should have been able to work.
The Motion Judge found that, at trial, Arsenault's lost
income claim would be awarded only if she was found to be a
reliable and credible witness. In the meantime, the Motion Judge
refused to grant her any early award for lost income. Based on the
written reports, he did not see it as more likely than not that
Arsenault would win such an award at trial, noting that if he was
to pay Arsenault the money she was requesting now, she might be
overcompensated and have to pay back money to Comeau after
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