$120,000 Non-Pecuniary Assessment for TMJ and Trigeminal Neuralgia

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic jaw injury suffered in a vehicle collision.

In the recent case (Tomas v. Sticha) the Plaintiff was injured in a 2006 collision that the Defendant accepted fault for.  The crash led a variety of soft tissue injuries along with TMJ syndrome and trigeminal neuralgia.  The symptoms persisted to the time of trial.  In assessing non-pecuniary damages at $120,000 Mr. Justice Tammen provided the following reasons:

[31]         For the reasons which follow, I am satisfied that Mr. Tomas’ TMJ syndrome and trigeminal neuralgia were caused by the Accident. The legal test I must apply is well known, namely whether the defendant’s negligence was a cause of the plaintiff’s injury, beyond de minimus. The defendant’s negligence need not be the sole cause of the injury. Even if the plaintiff was predisposed to the particular injury, so long as I am satisfied on a balance of probabilities that the defendant’s negligence was a cause of the injury, the defendant is liable for damages in tort, and should be required to compensate the plaintiff: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9.

[32]         In this case, Mr. Tomas was symptom free prior to the Accident. He started feeling pain in the right side of his face and a clicking noise in his jaw shortly after the Accident. Dr. Peace examined Mr. Tomas on January 12, 2007, and made objective findings which support the subjective complaints insofar as is possible. Dr. Peace made a preliminary diagnosis at that time.

[33]         More recently, in her report dated November 10, 2018, Dr. Peace opines that the trauma of the Accident caused injury to Mr. Tomas’ temporomandibular joint, leading to episodes of severe pain and a diagnosis of trigeminal neuralgia…

[51]         Nevertheless, based on the evidence before me, it is clear that Mr. Tomas suffered moderately serious soft tissue injuries which prevented him from working for approximately three months. Those injuries caused some amount of pain and suffering, and loss of enjoyment of life, for which Mr. Tomas should be compensated. In addition, he continues to suffer from the symptoms associated with TMJ syndrome and trigeminal neuralgia, in particular bouts of acute pain in the right side of his face. Those episodes, which occur without warning, are temporarily debilitating and impact on Mr. Tomas’ overall enjoyment of life. If Mr. Tomas does not have surgery to ameliorate the symptoms, he will experience them for the rest of his life. Mr. Tomas is entitled to an award of damages that recognizes the overall negative effects of these injuries in the twelve and a half years since the Accident, and in the future…

[56]         In addition to the chronic episodic pain, Mr. Tomas has suffered significant loss of enjoyment of life. Although I am not persuaded that the trigeminal neuralgia has impacted his pursuit of leisure and athletic activities to the extent he claims, I am satisfied that there has been a diminution in his ability to enjoy many daily activities. In addition, there is the embarrassment of the jaw noises and the debilitating bouts of pain.

[57]         Mr. Tomas also gave evidence about some suicidal ideation he says was caused by his condition. This included one occasion when he contemplated jumping from the Port Mann Bridge. He also testified that occasionally he feels that, if he had a gun, he might end his life. I do not mean to minimize that evidence, but I believe that it was hyperbolic, to some extent. I note that the psychologist called by the plaintiff, Dr. Elizabeth Bannerman, opines that Mr. Tomas suffers from mixed anxiety disorder with depressed mood. She rated Mr. Tomas’ risk of suicide as low to moderate.

[58]         I do accept that the anxiety and depressed mood are related to the chronic pain condition.

[59]         Taking into account all the symptoms from which Mr. Tomas continues to suffer, and the overall negative impact on his ongoing enjoyment of life, I am satisfied that an appropriate award for non-pecuniary damages is $120,000.