Non-Pecuniary Damages for Fibromylagia Assessed at $110,000 in ICBC Claim

(Update March 19, 2012 – The Below Decision was modestly modified by the BC Court of Appeal in reasons for judgement released today, reducing the claim for future care by $32,115.  The other trial findings were left intact)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.4 million in total damages for injuries and loss suffered as a result of a BC car crash.
In today’s case (Shapiro v. Dailey) the Plaintiff was involved in a 2005 intersection crash.  The Defendant driver had been drinking earlier in the day and was operating the vehicle without permission of its owner.  Fault was not admitted but the Defendant driver was ultimately found 100% responsible for the crash.
The Plaintiff was 23 years old at the time of the crash and 29 by the time of trial.  The Court heard from a variety of expert physicians who all agreed the Plaintiff suffered “serious injuries“.  The Court concluded that the Plaintiff did indeed suffer serious and permanent injureis and would struggle to earn a competitive living throughout her career.  Mr. Justice Grauer awarded $110,000 for non-pecuniary damages and $900,000 for diminished earning capacity.  In reaching the award for non-pecuniary damages the Mr. Justice Grauer made the following findings:

[58]         On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:

·                 disabling cervicogenic headaches, and periodic headaches of a migraine nature;

·                 chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;

·                 depressive symptoms falling short of depressive disorder;

·                 mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;

·                 mild, but not insignificant, cognitive difficulties in concentration and memory.

[59]         Whether some of these diagnoses overlap in terms of their symptomatology matters not.  What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts.  This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life.  I find that her prognosis is not hopeless, but is extremely guarded.  Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected.  Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.

[60]         I have considered the authorities to which counsel referred me, including Dikey v. Samieian, 2008 BCSC 604; Alden v. Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308;Prince-Wright v. Copeman, 2005 BCSC 1306; La France v. Natt, 2009 BCSC 1147; Pelkinen v. Unrau, 2008 BCSC 375; Whyte v. Morin, 2007 BCSC 1329; Niloufari v. Coumont, 2008 BCSC 816, varied 2009 BCCA 517; and Unger v. Singh, 2000 BCCA 94.

[61]         Each case must, of course, be assessed on its own facts.  Considering all of the circumstances, including her age at the time of the accident (23), the toll her injuries have taken on her, and her prospects for the future, I consider Ms. Shapiro’s plight to be considerably worse than that of, for instance, the older plaintiff in the recent decision of La France($80,000) and worse than the older plaintiff in Prince-Wright ($100,000).  I have considered as well the very recent decision of the Court of Appeal in Poirier v. Aubrey, 2010 BCCA 266, where the 38-year-old plaintiff’s non-pecuniary damages were increased to $100,000.  I assess Ms. Shapiro’s non-pecuniary damages at $110,000.

This decision also has a useful discussion of the law of ‘diminished earning capacity‘ and ‘failure to mitigate’ and is worth reviewing in full for the Court’s comments on these areas of law.

If you’re researching the non-pecuniary value of post traumatic fibromyalgia cases you can click here to access my recent archived posts.