$100,000 Non-Pecuniary Assessment for Central Neuropathic Pain With Poor Prognosis

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for central neuropathic pain caused by a vehicle collision.

In today’s case (Laliberte v. Jarma) the Plaintiff was involved in a 2015 vehicle collision.  She was a passenger in a vehicle driven by the Defendant that lost control “went through a fence and over a bump and landed in a field”.  Liability was admitted.

The collision caused various soft tissue injuries resulting in central neuropathic pain.  The prognosis was for symptoms to continue.  These were largely controlled with medication.  In assessing non-pecuniary damages at $100,000 Madam Justice Russell provided the following reasons:

[28]         The parties agree that the plaintiff suffered soft tissue injuries to her lower back, and was diagnosed with CNP. The parties also agree that the plaintiff’s prognosis for this injury is ongoing chronic pain. The plaintiff continues to suffer symptoms daily, although they are now at a tolerable level when the plaintiff is on medication.

[29]          The plaintiff described her pain at trial as “more of an irritation”. She testified that the medication she takes, Topiramate, reduces her pain by 80-90%. However, if she runs out of Topiramate, her serious symptoms immediately resume and she runs the risk of being bedridden with pain.

[30]         The plaintiff’s position is that she will require medication for her symptoms long term and possibly for the rest of her life, and that she faces the possibility of aggravating her injury by engaging in moderate or heavy physical activities regardless of how effective the medication may be.

[31]         The plaintiff’s evidence was that she had suffered some episodes of depression and anxiety as a teen, and had taken some medication for this but had discontinued use prior to the accident. After the accident, the plaintiff was referred to a counsellor by her family physician but did not attend any such counselling sessions or seek any other help concerning her psychological symptoms.

[32]         The plaintiff had no prior history of low back pain. She described suffering low back pain starting the day after the accident. I note that the plaintiff went into labour three days after the accident. Her mother had to help her into the shower and off the toilet, and she could not climb stairs without significant pain. Prior to the accident, the plaintiff enjoyed longboarding, drawing and art, and played basketball in high school. The plaintiff testified that her level of activity has increased since the date of the accident and she is now at a similar level than she was pre-accident, although she engages at a less intense level…

[48]         The plaintiff’s young age, the potentially lifelong duration of her injury and its impact on her physical ability, the severity of her pain before she went on medication, the emotional suffering caused by her aggravated depression, the impact her pain and depression had on her ability to raise and bond with her newborn son in the crucial months immediately following his birth (as well as the increased pain during the birth itself), and the strain her injuries put on her relationship with her parents, all stand in favour of a higher award.

[49]         I consider the loss of her ability to cradle her baby in her arms and to breastfeed without pain to be serious losses.

[50]         Should she wish to have more children, she faces a difficult choice:  to go off her medication for the duration of the pregnancy and suffer serious pain, or to deny herself the opportunity to bear more children. As a corollary of this issue, she must not allow herself to become pregnant again without carefully considering the consequences.

[51]         On the other hand, the plaintiff’s ongoing injury is not a disabling injury because its effects can be managed through the use of medication, the injury is limited to her lower back, and the injury has not caused a substantially material loss or impairment of her life or lifestyle as compared with her level of activity, recreational pursuits and social inclinations before the accident.

[52]         I also find that her injuries have not necessarily caused any marked impairment of her mental abilities – so long as she is on medication controlling her chronic pain, her academic performance does not stand to be affected. These factors favour a more limited award…

[56]         Having regard to the Stapley factors, and the relevant cases cited by the parties, I award the plaintiff $100,000 in non-pecuniary damages.