If I have preexisting fibromyalgia, will my pain and suffering damages be less? What if I’ve not had treatment for fibromyalgia for several years and I’m living my best life before I am injured?
This case was summarized on the loss of capacity side of things by my colleague Jillian Dean. Her summary can be read here. Today I’m looking at the compensation awarded for pain and suffering in the case of (Johnstone v Rogic 2018 BCSC 988).
Ms. Johnstone is the injured plaintiff in this case. She was a high level executive, and prior to the collision she was very active. She had preexisting Type 1 Diabetes and Fibromyalgia, but (importantly) had not received treatment for the latter for at least 4 years leading up to the collision. She had two young children, and she and her husband enjoyed an active lifestyle that included hiking and cycling.
As a result of the collision she suffered significant low back pain and regular severe migraines. While her injuries hadn’t forced her to take time off work, at the end of the day she was rendered exhausted and spent evenings recovering on the sofa at home. Her family life was profoundly impacted: she went from cheerful and upbeat to irritable and withdrawn. Justice Burke described the impacts and went on to award $145,000.00 to compensate for her pain and suffering – recognizing that she was robbed of most of her enjoyment of life despite doing her best to push through her pain:
32 Previously, Ms. Johnstone was described by her husband as essentially a “perfect” or “TV” mom who baked for friends and family. Her friends described her “bubbly personality” as now gone and her limited ability to interact socially with them. Mr. Sawyer, a work colleague, described her difficulty with walking up stairs. Mr. Johnstone also noted she essentially goes to work, comes home exhausted and has to lie down to rest. This significantly impedes her interactions with her young children and her husband. Ms. Johnstone no longer walks the family dog and cannot pursue recreational activities such as tent camping or skating with the children.
38 There is no doubt Ms. Johnstone has severe chronic pain as reflected by the strength of the pain medication. This has had significant impairment on her life. Ms. Johnstone has approached these injuries in a stoic manner and worked hard to both get better and maintain her job and family duties. She is relatively young and unfortunately her prognosis is guarded.
39 A plaintiff is entitled to be restored to her original position. In order to properly determine the extent of Ms. Johnstone’s injuries, I should consider her pre-existing conditions. I find, however, that Ms. Johnstone is a highly driven individual who, prior to the accident, was effectively managing her pre-existing conditions, enjoying success at work and in her social and family life. There is no doubt she would have continued to do so but for the accident. The lower back injury sustained in the accident is the main source of her pain which has led to the impairment of her quality of life. Her previous fibromyalgia symptoms have also been exacerbated due to the accident.