Court Of Appeal Increases Trial Award For Fibromyalgia From $60,000 to $100,000

In Poirier v Aubrey, the British Columbia Court of Appeal increased the trial judge’s award of $60,000 for pain and suffering for fibromyalgia to $100,000. At the time of the original trial, the Plaintiff had endured over three years of fibromyalgia symptoms.

 

[23]           Dr. Hyams’ report was the most recent available to the judge.  It was made in October 2009.  The essence of his opinion is as quoted at the outset.  Most significantly, he says Ms. Poirier has been on the appropriate treatment protocols involving medication for her condition as well as various rehabilitation interventions, but her condition was not improving; it was actually deteriorating.  In fact, he said it was his opinion the prognosis was “not good” due to the progression of Ms. Poirier’s symptoms despite the treatment she had received.  He put the prospect of a complete recovery at “highly unlikely”.  He explained the objective of his proposed course of treatment was to reduce Ms. Poirier’s pain and increase her functioning and concluded that “if” that was possible she might be able to consider some part time work sometime in the future.  After then explaining the proposed treatment, he expressed the “hope and expectation” of some measure of success. 

 

[24]           There is, in my respectful view, nothing in what Dr. Hyams or the other two physicians said, either in their reports or in their testimony at trial, that amounts to an opinion there is a real and substantial possibility her pain and discomfort will be relieved and her functioning improved.  I do not see how it could be said that, on Dr. Hyams’ evidence in particular, that possibility was “bordering on likelihood” as the judge suggested.

 

[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.

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