$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

Reasons for judgement were released today assessing damages for a severe jaw injury sustained in a vehicle collision.
In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:
80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.
[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.
[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.
[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.
[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.
[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.
[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.
[187]     The injuries Mr. Williams suffered have prevented him from working. He has suffered financial consequences as a result which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.
[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.
[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.

bc injury law, ICBC temporomandibular joint injury cases, ICBC tmj injury cases, Madam Justice Warren, Williams v. Gallagher

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ERIK
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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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