Car Accident Fibromyalgia Award of $125,000.00 for Pain and Suffering upheld on Appeal

This appeal concerned the amount  awarded as a result of two motor vehicle accidents that occurred in quick succession(Morlan v. Barrett, 2012 BCCA 66) . The first accident was a head-on collision. After that collision, the claimant got  out of her vehicle to speak with the other driver.  A few minutes later, she returned to her vehicle to obtain her registration and insurance papers.  While the injury claimant was seated in her vehicle it was rear-ended by another vehicle.

The accidents were heard together and the court awarded her a total of $610,453.00 for  pain and suffering, loss of future income earning capacity,  cost of future care, and out of pocket expenses. The appellants contended that the trial judge was in error these awards should be reduced.

The Court of Appeal allowed  the appeal to the extent of reducing the award for loss of future income earning capacity by $150,000.00 to $275,000.00, and the cost of future care award by approximately $10,000.00 to $42,953.00. However, the award of $125,000.00 for pain and suffering was not reduced on appeal.

The court upheld the award for pain of suffering finding that it cannot, having regard to recent awards in similar cases, be said to be so excessive as to warrant appellate intervention.

The Court of Appeal however felt that the trial judge overlooked some negative contingencies which should have reduced the awards for loss of future income and costs of care. 

They accepted the appellants’ submission that the trial judge erred in finding that there was a real and substantial possibility that  but for the accidents the claimant would have been promoted to a director’s position. As Judge Frankel stated, “I accordingly agree with the appellants that the judge’s findings do not take the matter above the level of speculation and that, therefore, there is no basis for an award for the positive contingency of promotion.”

In reducing the claimants award for cost of future care by $10,000.00 the Court of Appeal made no detailed analysis and simply stated,

[76  The appellants submit that the trial judge erred in proceeding on the basis that Ms. Morlan will take the maximum number of physiotherapy treatments and the same amount of medication for the rest of her life.  They say that some discount should have been applied for negative contingencies.  I agree.  In my view, each of those awards should be reduced by 20%; i.e., physiotherapy to $5,551.20 (rounded to $5,550.00), and medications to $35,603.20 (rounded to $35,600.00).

Posted by personal injury lawyer Mr. Renn A. Holness

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