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BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Reasons for judgement were released today by the BC Court of Appeal discussing an appropriate amount for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for accident related Fibromyalgia.

In today’s case (Poirer v. Aubrey) the Plaintiff was injured in a 2006 rear-end car crash in BC.  She suffered injuries which resulted in chronic pain.  There was evidence that some of the effects of her injuries were likely permanent.  At trial the Plaintiff was awarded just over $220,000 in total damages for her injuries and loss (click here to read my summary of the trial judgement).

The Plaintiff appealed arguing that the damage award was low and the trial judge made an error in finding that there was a ‘real and substantial possibility…that (the Plaintiff’s) pain and discomfort will be relieved and her functioning improved“.  The BC High Court agreed that the evidence did not support such a finding and that the trial award was low.  The Court substituted an award of $528,503 which included an increase in the non-pecuniary damages award of $60,000 to $100,000.

In assessing the Plaintiff’s non-pecuniary loss for chronic pain from soft tissue injuries at $100,000 the BC Court of Appeal noted as follows:

[25]         I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

[26]         Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.

[27]         I would set aside the judge’s award of $60,000 for non-pecuniary loss and substitute an award of $100,000.

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