$40,000 Non-Pecuniary Assessment for L5-S1 Disc Herniation

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for injuries, including a symptomatic L5/S1 disc herniation sustained in a motor vehicle collision.

In the recent case (Pataria v. Bertrand) the Plaintiff was involved in a collision when he was 12.  Fault was admitted by the offending motorist.  Although the Court heard competing evidence about the cause of a low back disc injury Mr. Justice Truscott ultimately found this was caused by the trauma in the collision.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[171] I accept that the plaintiff sustained soft tissue injuries to his neck and back area, with accompanying headaches, in the motor vehicle accident. I also accept that initially he had symptoms of post-traumatic stress, difficulty falling asleep and hypervigilance, although those problems quickly resolved.

[172] I conclude however that physically the plaintiff is not as injured as counsel makes out. He is able to swim regularly and work out with weights in the gym.

[173] After the accident he was able to return to his sports of soccer, basketball and volleyball, albeit not at the same level of performance.

[174] At his examination for discovery on July 22, 2010 he said he was only feeling back symptoms once or twice a week.

[175] It is also a fact that initially he did not accept the recommendations of Dr. Low that he work harder at recovery although he has improved his effort as time has gone on.

[176] I accept the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia and hyperalgesia and seems to experience non-painful stimuli as painful and mildly painful stimuli as more painful, as a generalization to the area of pain. This is commonly seen with ongoing chronic pain complaints. At the same time she says he may experience gradual improvement of pain in the next few years.

[177] I also accept her opinion that it is more likely than not that the motor vehicle accident is the cause of the disc protrusion which is most symptomatic at L5/S1. Her analysis of the medical literature indicates that in a young man such as the plaintiff disc herniation is much less likely to occur without trauma and the plaintiff’s low back complaints here arose following the motor vehicle accident…

[191] I consider an appropriate figure for general damages for this plaintiff, in the absence of any evidence from a spine surgeon and any prognosis for the psychological problems, to be $40,000.