$90,000 Non-Pecuniary Assessment for Lumbar Facet Joint Syndrome

Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.
In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions.  Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim.  In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –
[51]         It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…

[57]         Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:

(a)      The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.

(b)      The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.

(c)      The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.

(d)      The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.

(h)      Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.

(i)       Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.

(j)       The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business  in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…

[62]         Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.

[63]         I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.