$140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

Adding to this site’s archived cases addressing damages for psychological injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a predominantly psychological chronic pain disorder.
In today’s case (Khosa v. Kalamatimaleki) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered relatively mild objective physical injuries but went on to develop a largely disabling chronic pain disorder with a significant psychological component.  In assessing non-pecuniary damages at $140,000 Mr. Justice Saunders provided the following reasons:
[100]     In view of the testimony of Ms. Khosa and her collateral witnesses, and the medical evidence as I whole, I find on a balance of probabilities that she has been and continues to be both physically and psychologically disabled from her previous employment as an LPN, and from housework…
[103]     As noted above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain disorder associated with both physical and psychological factors”. I agree. The current physical disability, I find, undoubtedly has a very significant psychological component…
[105]     Given the persistence of the physical symptoms in the absence of any significant organic objective signs I find it likely that the psychological factors are the predominant cause…

[107]     I find that Ms. Khosa, on a balance of probabilities, is and has been impaired largely due to psychological injuries caused by the accident.

[108]     Ms. Khosa, I find, currently lacks the ability, at least psychologically, to undergo any form of retraining or upgrade of her skills, and, even if she could undertake the necessary training, currently lacks the physical and psychological wherewithal to discharge the job duties of a registered nurse. The plaintiff submits that:

The constellation of issues she has around tasks requiring management of stress, memory, and concentration, render her an unlikely candidate for completion of nursing school, let alone meeting the job requirements for nursing set out by her employer – foremost among those is the ability to safely administer medication and perform feeding procedures on her young patients.

[109]     I agree.

[110]     It is also apparent that Ms. Khosa’s injuries have had a profound impact on her self-image and her relationships with her husband and children.

[111]     These injuries, subjective though they may be, are real, were clearly caused by the physical and psychological trauma of the accident, and are compensable…

[121]     Based on the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s observations as to her positive responses to the limited CBT and neurofeedback therapy she has had, I find that Ms. Khosa’s current condition is such that there is considerable uncertainty as to her prognosis. I am not satisfied that her condition is such that marked improvement is improbable. As the plaintiff has not met the onus of proving this, I find there to be a probability of her responding favourably to psychological treatment. I find the outcomes that could follow from such favourable response range, in ascending probability, from only having her emotional well-being and her relationships with her family restored, to becoming more physically active, to being able to return to work as an LPN and possibly renew her planned pursuit of a career as an RN. I also find, however, that even within the best of these potential outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible to further episodes of anxiety and depression. I also recognize the possibility that the treatment period may be prolonged.

[122]     Given the inherent uncertainty in her condition, I also find that there is a relatively small, but still significant possibility of Ms. Khosa’s psychological condition being resistant to further treatment, resulting in no meaningful improvement. There is a very small possibility of her condition remaining so persistent and so debilitating that she would end up removing herself from the workforce entirely…

[130]     Bearing in mind both the probability of eventual recovery and the possibility of persistent symptoms into the future, and having regard to the non-exhaustive list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess her non-pecuniary damages at $140,000.

bc injury law, Khosa v. Kalamatimaleki, Mr. Justice Saunders

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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