It is Common Sense that "Constant and Continuous Pain Takes its Toll"

Reasons for judgement were released today by the BC Court of Appeal making it clear that it is a matter of common sense that chronic pain can, over time, have a detrimental effect on a person’s ability to work.
In today’s case (Morlan v. Barrett) the Plaintiff was injured in a motor vehicle collision.  She was ultimately diagnosed with fibromyalgia.  At trial the Court awarded significant damages for diminished earning capacity despite the Plaintiff having no past loss of income.
The Defendant appealed arguing that the Judge erred in awarding these damages because the judge relied on “common experience that a person with a stable but persistent energy-draining condition will find it more difficult to continue working as he or she grows older“.  The Defendant argued that this was speculative and there was no evidence to suggest this is so.
While some of the Plaintiff’s damages were ultimately reduced, the BC Court of Appeal was quick to dismiss the above argument finding it was simply a matter of common sense that chronic pain takes its toll.  In doing so the Court provided the following reasons:
[41] Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan’s condition had “plateaued”, the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication.  In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort.  In my view, it was open to the trial judge to find—essentially as a matter of common sense—that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person’s ability to work, regardless of what accommodations an employer is prepared to make.

bc injury law, diminished earning capacity, Fibromyalgia, Morlan v. Barrett

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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