IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151001

Docket: M121932

Registry:
Vancouver

Between:

Steven Williams

Plaintiff

And

Cynthia Sue Nelson
and
Michael Gallagher

Defendants

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Overview

[1]            
Steven Williams claims damages for
personal injuries he suffered in a car accident on April 4, 2010. He was in the
back seat of a motor vehicle being driven by his mother when they were rear ended
by a motor vehicle driven by the defendant, Michael Gallagher. Mr. Williams
initially named both his mother and Mr. Gallagher as defendants, but
liability has been admitted by Mr. Gallagher and Mr. Williams has
discontinued the action against his mother.

[2]            
Mr. Williams says that he suffered
soft-tissue injuries to his neck, shoulder girdle and back, and an injury to
the temporomandibular (TM) joints in his jaw. He says the injury to his TM
joints has developed into TM joint (TMJ) disorder that has left him with constant,
excruciating jaw pain. He also asserts that as a result of the TMJ disorder he
underwent extensive, unsuccessful orthodontic treatment and faces the prospect of
TM joint replacement surgery, likely more than once in his lifetime. He says
that his injuries have triggered chronic pain syndrome, psychological symptoms
and anxiety. He has taken Percocet, a narcotic pain medication, for years.

[3]            
At the time of the accident, Mr. Williams
was 20 years old and was living with his parents in Pitt Meadows. He was
employed as a tire mechanic at a tire wholesale, retail and installation
business called Tireland, where his father was the manager. He has not returned
to work at Tireland. About eight months after the accident, Mr. Williams
started working part time as a bartender, but he left that job about a year
later. He has not worked since. He says his chronic pain and psychological
conditions have disabled him from working, not only in physically-demanding
jobs but also in sedentary jobs and that he is permanently, competitively unemployable.

[4]            
Mr. Williams’ pre-accident
medical history figured prominently during the trial. In August 2009, he was
assaulted and suffered an injury to his finger and soft-tissue injuries to his
neck, shoulder and back. He was subsequently diagnosed by his family physician,
Dr. Christopher Dodds, with depressive symptoms. In addition, Mr. Williams
has a congenital anomaly affecting his jaw. The lower part of his face is
asymmetrical because his lower jaw, or mandible, is shorter on the left than on
the right. He also has some anatomical abnormality in his TM joints themselves.
He had an abnormal bite, meaning his upper and lower teeth were misaligned, and
his front teeth protruded. Approximately five weeks before the accident, he
consulted an orthodontist about the possibility getting braces.

[5]            
About a year after the accident, Mr. Williams
commenced extensive orthodontic treatment that continued over approximately
three years. This consisted of the extraction of several teeth in March 2011,
the application of braces in April 2011, surgery in January 2013 involving the
severing and repositioning of both the upper and lower jaw and the implanting
of metal plates and bolts to hold the jaw in its new position, the removal of
the braces in January 2014, and a further surgery in March 2014 to remove the
hardware.

[6]            
The purpose of the orthodontic
treatment is in issue. Mr. Williams says that he originally consulted the
orthodontist for cosmetic reasons, but the purpose of the orthodontic treatment
changed when the TMJ disorder developed. He says he underwent the orthodontic
treatment because his doctors thought the correction of his bite would
alleviate the TMJ pain. The defendant says that Mr. Williams underwent the
orthodontic treatment for cosmetic reasons and would have done so irrespective
of the April 2010 accident and the development of the TMJ disorder.

[7]            
After the April 2010 accident, Mr. Williams
was involved in additional car accidents in August 2010, November 2010,
December 2014, February 2015 and March 2015. In the August 2010 accident, his
face struck the steering wheel of his car and he injured his nose and exacerbated
the soft-tissue injuries to his neck and upper back. The November 2010 and
December 2014 accidents also resulted in some exacerbation of his back pain. In
addition, he was involved in an altercation in a bar in January 2011, during
which he sustained a blow to the back of the head.

[8]            
The defendant’s position is that Mr. Williams
has exaggerated the injuries he suffered in the April 2010 accident and the
effect they have had on his life. The defendant accepts that Mr. Williams
suffered soft-tissue injuries to his upper and lower trunk in that accident,
and that he may continue to experience some ongoing pain and discomfort in his
neck, shoulder girdle and upper back, but says that this pain is not
functionally or occupationally limiting. The defendant accepts that Mr. Williams
is suffering from TMJ and mood disorders, but says he has not proved that these
conditions were caused by the April 2010 accident.

[9]            
In the alternative, the defendant
submits that this is a "crumbling skull" case. The defendant says
that irrespective of the April 2010 accident, Mr. Williams would have undergone
the orthodontic treatment, which itself caused him significant pain and
suffering. The defendant says there was a measurable risk that, because of his
anomalous anatomy, Mr. Williams would have developed TMJ disorder
irrespective of the April 2010 accident, and the orthodontic treatment and
subsequent traumas further increased that risk. The defendant also says the
likelihood Mr. Williams would have developed TMJ disorder in any event,
combined with the various subsequent accidents and injuries, gives rise to a
measurable risk that Mr. Williams would have developed chronic pain and
psychological conditions irrespective of the April 2010 accident. In the
result, the defendant says Mr. Williams’ damages must be significantly
reduced to reflect these contingencies.

[10]        
The defendant also submits that Mr. Williams
failed to mitigate by choosing to stop taking an anti-depressant medication
called Sertraline that had been prescribed by Dr. Dodds and by missing
some physiotherapy appointments. Further, the defendant submits that Mr. Williams
acted unreasonably in not pursuing alternative employment after leaving the
bartending position in late 2011 and, had he done so, he could have found
alternate employment. The defendant says that even if Mr. Williams is
disabled from employment requiring physical labour, he has considerable
residual employability.

[11]        
Mr. Williams submits that he
has established that the April 2010 accident caused his current conditions and
that there was no measurable risk that those
conditions would have developed had the accident not occurred. He says that the medical evidence is clear, unequivocal, and
virtually uncontroverted, and the only real question is the likelihood that his
symptoms will be relieved and his functionality returned such that he will be
able to return to some form of paid employment and, if so, when and to what
extent.

[12]        
Mr. Williams quantifies his
claim in the range of $1,600,000 to $2,000,000. In contrast, the defendant
quantifies the claim at less than $100,000.

[13]        
Mr. Williams’ parents’
testified as did several friends and co-workers. Mr. Williams also relied
upon the evidence of Dr. Dodds and his treating TMJ specialist, Dr. Douglas
Courtemanche. In addition, a psychiatrist, Dr. Jeanette Smith, and
physiatrist, Dr. Mark Adrian, each of whom performed an independent
medical examination at the request of Mr. Williams’ counsel, authored expert
reports and testified. Curtis Peever, an accountant, authored three expert
reports and testified about Mr. Williams’ past income loss claim and about
multipliers that can be used to calculate the present value of future
employment income and costs of future care.

[14]        
The defendant relies on the expert
evidence of Dr. Randall Locht, an orthopedic surgeon, who conducted
an independent medical examination of Mr. Williams at the request of
counsel for the defendant.

Credibility and Reliability of the Evidence

[15]        
To the extent that Mr. Williams’
claim involves subjective complaints of pain, it is particularly important to examine his evidence carefully: Price v.
Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399. If his account is not
convincing, the hypothesis upon which some of his medical evidence rests is
undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15,
43-44.

[16]        
The source of Mr. Williams’
most debilitating pain is the TMJ disorder and, as discussed in more detail
later, there is objective evidence corroborating Mr. Williams’ subjective
complaints of jaw pain, including muscle spasm and MRI images showing that the
discs in his TM joints are dislocated or abnormally positioned. Having said
that, the nature and severity of the pain and psychological complaints are
subjective. As such, Mr. Williams’ credibility is the cornerstone of his
claim.

[17]        
The factors to be considered when
assessing credibility were summarized in Bradshaw v. Stenner, 2010 BCSC
1398 at para. 186, aff’d 2012 BCCA 296, leave to appeal ref’d, [2012]
S.C.C.A. No. 392. They include the firmness of the witness’s memory, the
ability of the witness to resist the influence of interest in modifying his
recollection, whether the witness’s evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his evidence or is
otherwise inconsistent in his recollections, the witness’s demeanour, and
whether the witness’s evidence seems generally unreasonable, impossible, or
unlikely.

[18]        
The defendant submits that Mr. Williams’
subjective reporting of his pain and disability is inconsistent with his
conduct and, in particular, his selective compliance with the recommendations
of his healthcare providers; his demonstrated ability to work as a bartender
for 12 months; and his ability to continue to maintain friendships and a social
life notwithstanding his alleged pain.

[19]        
The defendant suggests that Mr. Williams
chose to stop taking Sertraline and to miss physiotherapy appointments, but was
vigilant about taking Percocet, because he was not actually as affected by his
injuries as he claims and he enjoyed the effect of the narcotic. The implication
was that, for years, Mr. Williams cultivated a false narrative of pain and
disability in consultations with his physicians, while continuing to engage in
activities he enjoys such as socializing with friends, working as a bartender,
drinking alcohol and taking narcotic pain medication.

[20]        
For reasons I will set out in more
detail in the section of this judgment addressing mitigation, Mr. Williams
did not unreasonably stop taking the Sertraline and did not unreasonably miss
physiotherapy sessions. He has taken Sertraline and other anti-depressant
medication at various times, and has attended over 100 physiotherapy sessions in
the years since the accident. He has followed Dr. Dodds’ alternative
suggestions for addressing his depressive symptoms including engaging in
exercise, spending more time outdoors, and improving his diet. He has followed
all of Dr. Courtemanche’s suggestions for treating the TMJ disorder,
including undergoing acupuncture and Botox treatments. Finally, and as
discussed in more detail later, he underwent the extensive and painful
orthodontic treatment. He spent approximately $21,000 on treatment, which is a
significant sum for anyone, particularly a young person with a very uncertain
future. His willingness to undergo such expensive and invasive treatments is,
in my view, inconsistent with the defence theory.

[21]        
Similarly, Mr. Williams’
ability to work part time as a bartender for about a year and to socialize with
friends forms an insufficient basis upon which to conclude that he is
exaggerating his pain and disability. Mr. Williams’ overall condition has
worsened over the years. He engaged in the bartending work relatively early on.
It was a part-time, non-physical job with minimal demands. His socializing has
consisted of occasionally attending restaurants and bars with friends and
visiting at friends’ homes. It almost goes without saying that the fact that,
on a good day, he can get himself out of the house to have a meal or drinks
with friends does not, on its own, mean that he is exaggerating his symptoms.

[22]        
The defendant engaged private
investigators to conduct over 100 hours of surveillance of Mr. Williams. That
did not generate evidence of any conduct inconsistent with his subjective
reports of pain and disability.

[23]        
The defendant also submits that Mr. Williams
engaged in questionable conduct including fighting and mixing alcohol and
marijuana with his prescribed narcotics, and this supports the conclusion that
he is a person of generally poor character.

[24]        
Mr. Williams acknowledged
that he had been in some fights, but no evidence was led as to the
circumstances surrounding these fights. Without any additional aggravating
details having been elicited, this does not give rise to material concerns
about Mr. Williams’ character.

[25]        
Mr. Williams acknowledged
that he does, on occasion, mix alcohol with his prescription narcotics. Most
often this has consisted of a couple of drinks at a time although, on occasion,
he may have had as many as six drinks. He tried marijuana about two years ago
in the hope it would dull the pain but he did not like the side effects and he
no longer uses it. Dr. Dodds is aware that Mr. Williams does
sometimes drink and has used marijuana and yet he has continued to prescribe
Percocet. Dr. Smith, who has significant experience dealing with substance
abuse, said it is generally ill-advised to mix alcohol or marijuana with
prescribed narcotics but that many people do. In the circumstances, neither the
social drinking, nor the historical marijuana use, gives rise to material concerns
about Mr. Williams’ character.

[26]        
The defendant also submits that Mr. Williams,
who listened to the testimony of several witnesses before giving his own
evidence, tailored his evidence to the evidence of the witnesses who testified
before him. In particular, the defendant submits that Mr. Williams echoed
certain testimony given by Dr. Smith about the effectiveness of Sertraline.

[27]        
Dr. Smith agreed that Dr. Dodds’
clinical records indicate that Mr. Williams had a good response to Sertraline
when it was prescribed to him following the 2009 assault. However, she said the
improvement in his depressive symptoms at that time could also be attributed to
other factors. She noted that Mr. Williams told her he became frustrated
by what he perceived to be an inadequate response by the police to the assault.
She said this frustration may have abated once Mr. Williams retained a
lawyer to pursue a civil action against his assailant, and this may have
contributed to the resolution of his depressive symptoms. Dr. Smith also
testified that some people experience side effects from Sertraline.

[28]        
Mr. Williams commenced his
testimony before Dr. Smith testified but was interrupted to permit other
witnesses to testify. After Dr. Smith testified, Mr. Williams was
asked why he stopped taking Sertraline. He said he did not like the side effects.
When Mr. Williams was asked about the resolution of the depressive
symptoms that surfaced following the 2009 assault, he acknowledged that he
started feeling better after taking the Sertraline; however, he also said that
he started feeling better once he had hired a lawyer who identified the
assailant and commenced a civil action. When he was challenged about simply
repeating Dr. Smith’s theory, he acknowledged that he does not know why
he began feeling better and he agreed the Sertraline may have helped.

[29]        
I echo the comments of Madam Justice
Humphries in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116,
concerning the common-sense practise of calling the plaintiff before the other
witnesses so as not to detract from the persuasiveness of the plaintiff’s
testimony. Had Mr. Williams been called first, no issue would have arisen.
However, having considered the evidence carefully, it is my view that Mr. Williams
did not tailor his evidence in a manner that materially affected his
credibility. Mr. Williams might not have mentioned that his frustration
over the assault abated after hiring a lawyer to pursue a civil action had he
not heard Dr. Smith’s testimony. However, he was forthright in acknowledging
that he did not actually know why his depressive symptoms improved. He readily
admitted that the Sertraline may have helped. The fact is that both events (the
hiring of the lawyer and the taking of the Sertraline) were temporally related
to the improvement in his depressive symptoms.

[30]        
Mr. Williams’ evidence
relating to his pre-accident physical health, his social interactions, his work
ethic and his lifestyle was corroborated by reliable evidence from third
parties. The testimony of Mr. Williams’ mother was somewhat vague and
therefore of limited usefulness. However, the evidence of the other lay
witnesses was persuasive.

[31]        
Mr. Williams’ father
described Mr. Williams as outgoing and social, with lots of friends,
before he had the accident. Lionel Del Valle, who worked with Mr. Williams
both before and after the accident, Jonathan Webber, who has been Mr. Williams’
close friend since childhood, and Brock Lennox, who was his supervisor at
Tireland, all described Mr. Williams before the accident as an outgoing,
active, hardworking, responsible and mature young man. Mr. Williams’
friend, Brandon Kreklewetz, described Mr. Williams as a leader and the
spark that made things happen in their group of friends. The defendant submits
that Mr. Kreklewetz’s testimony should be given little weight because it
was not clear how well he knew Mr. Williams before the accident. I do not
agree. It was apparent that the friendship between Mr. Williams and Mr. Kreklewetz
has deepened since the accident, but they knew each other well enough before
the accident for Mr. Kreklewetz to perceive the changes in Mr. Williams.

[32]        
Mr. Williams’ evidence
relating to the injuries he suffered in the accident, the severity of the
resulting symptoms, and the impact of those injuries on his functionality was
also corroborated by reliable evidence from third parties. Mr. Williams’
father testified that Mr. Williams has become reclusive and isolated. He
said he has seen him lying in his bed for hours with ice packs applied to his
face. Mr. Webber and Mr. Kreklewetz testified about the profound
changes in Mr. Williams’ personality and lifestyle since the accident. Mr. Williams’
evidence relating to his injuries was also corroborated by the expert evidence
and the objective findings regarding his TM joints.  His testimony concerning
his TM joint pain harmonized with Dr. Courtemanche’s testimony about the
nature of TMJ disorder and the pain associated with it.

[33]        
Dr. Locht, the orthopedic
surgeon retained by the defendant to perform an independent medical
examination, acknowledged that there was no evidence of any amplified pain behaviours
during his interview and examination of Mr. Williams and Dr. Locht
believed Mr. Williams was truthful when he described his history of pain
and functionality.

[34]        
Finally, Mr. Williams did not
tend towards exaggeration, and his testimony was not shown to be implausible,
internally inconsistent or inconsistent with other evidence. He used graphic
comparisons (for example, using Sertraline was like trying to drain a lake by
removing a bucket of water at a time and his jaw joints felt like knotted
elastics), which demonstrated the effort he made to be understood. He was occasionally
overcome with emotion while testifying. This most often occurred when the
testimony touched on topics concerning his future. In my view, none of this was
feigned and I ascribed it, in large part, to his psychological conditions which
include a somatic symptom disorder. Further, his father was ill and, sadly,
passed away during the trial. His father’s condition no doubt heightened Mr. Williams’
emotional state during the trial.

[35]        
For these reasons, I concluded
that Mr. Williams was a truthful witness who tried hard to relate his
evidence in a complete and straightforward manner.

Facts

Before the April 2010 Accident

[36]        
Mr. Williams was born in 1989.
He has a sister who is one year older. She has a four-year-old son. He lives
with his mother, sister and nephew in the house in Pitt Meadows where the
family has lived for most of Mr. Williams’ life. Mr. Williams’ father
lived with them until his recent death.

[37]        
Mr. Williams was a typical,
active teenager. He played soccer for his high school team and also played in a
neighbourhood league. He liked video games. He had many friends. His parents
and the friends who testified described him as high-energy, outgoing, happy and
social.

[38]        
Mr. Williams graduated from
Pitt Meadows Secondary School in 2007. He characterized himself as a below
average student. His transcript for grades 10 through 12 shows that he passed
all his courses in those years. While he received many bare passes, he
performed much better, obtaining a few Bs and even one A, when he was supported
in pursuing a course independently and at his own pace. While he did not
perform well in the traditional learning environment of a public high school,
these results suggest that he may be capable of achieving academic success in
an alternative or non-traditional environment.

[39]        
When he was in grade 10, Mr. Williams
concluded that he was not well suited to academic learning. He looked to the
example of his father who had established a secure career at Tireland and had become
a good provider for their family, even though he had not graduated from high
school. Mr. Williams was determined to do at least as well. His life goals
were to succeed in a non-academic career, buy a home and raise a family with a
middle-class lifestyle.

[40]        
While still in high school, Mr. Williams
worked at a McDonald’s restaurant where he performed well and received
promotions to lower level management positions. Lionel Del Valle, an assistant
manager at McDonald’s at the time, testified that he thought Mr. Williams
was a such good worker that he later sought him out to offer him the bartending
job in late 2010.

[41]        
After high school, Mr. Williams
decided that he wanted to follow his father into the tire business at Tireland.
His father was supportive of the idea, but no positions were immediately
available at Tireland. Mr. Williams tried a number of other entry-level,
physical jobs, while he waited for an opening. The defendant characterizes Mr. Williams
as aimless during this period but I accepted Mr. Williams’ explanation
that he wanted to try out a few different jobs to get a better sense of his
interests.

[42]        
A position opened up at Tireland
in 2008 and Mr. Williams secured it with the help of his father. He was a
tire installer or tire mechanic. The job involved very heavy physical labour. Mr. Williams
was required to lift hundreds of pounds of tires each day. It was often
necessary to work in awkward positions and with heavy tools. He excelled at the
job. Brock Lennox, his supervisor at Tireland, testified that Mr. Williams
was "the best worker there, except for me".

[43]        
In addition to chronic ear
infections, which ultimately resulted in the need for ear surgery, Mr. Williams
has had a few medical issues, some of which are relevant to the issues to be
resolved in this action. In 2007, he fractured his nose. This resulted in a
persistent septal deviation that was surgically repaired in 2009. In mid-August
2009, he was assaulted and suffered a laceration to his finger as well as soft-tissue
injuries in his neck, shoulder girdle and back. The soft-tissue injuries did
not affect his work, but the finger injury did and he was off work for several
weeks as a result. The soft-tissue symptoms gradually resolved with his last
complaints being noted in physiotherapy records in February 2010.

[44]        
In January 2010, Mr. Williams
told Dr. Dodds that he was suffering from depressive symptoms that developed
after the 2009 assault. Dr. Dodds prescribed Sertraline and the symptoms
were much better when he next saw Dr. Dodds, two weeks later. At trial, Dr. Dodds
characterized this depressive episode as short-lived and not pervasive. However,
in a medical legal report he wrote on November 29, 2011, for use in a civil
action commenced by Mr. Williams in relation to the assault, Dr. Dodds
wrote that, following the assault, Mr. Williams "experienced the
insidious onset of major depression". Defence counsel submits that this
was inconsistent with the way Dr. Dodds characterized the depressive
symptoms in this action. Having read the November 29, 2011 report in its
entirety, I do not consider there to be any material inconsistency. In that
report, Dr. Dodds made the point that because of the insidious nature of
the symptoms, Mr. Williams did not present for medical attention for
almost five months following the assault and, by the time he did seek help in
January 2010, the symptoms were impairing the quality of his life. Although he
referred to the incident, in the report, as a "major depression", he
also expressly noted that the symptoms improved dramatically within a few weeks
of Mr. Williams commencing treatment.

[45]        
As already noted, Mr. Williams
has a congenital anomaly affecting his lower jaw. He had an abnormal bite with
protruding front teeth. As a child, his mother took him and his sister to an
orthodontist named Dr. Maplethorp. His sister got braces and he did not. His
mother testified that she did not think Mr. Williams needed braces and she
did not pursue orthodontic treatment on his behalf. In February 2010, Mr. Williams
contacted Dr. Maplethorp himself. He testified he did so because he
continued to be interested in getting braces to correct his bite, for cosmetic
reasons.

[46]        
Mr. Williams testified that,
at the time of the April 2010 accident, he was still considering whether to
have orthodontic treatment, for cosmetic reasons, and that no one, including Dr. Maplethorp,
had yet discussed the possibility of jaw surgery. He also testified that he did
not suffer from TMJ pain before the accident. He testified that he does not
recall when, specifically, he discussed actual treatment options with Dr. Maplethorp,
but that it was definitely after the onset of the TMJ pain.

[47]        
Dr. Maplethorp did not
testify; however, her clinical records were admitted into evidence by agreement
of the parties. Those records, together with Dr. Dodds’ records, establish
the following timeline:

·      
Mr. Williams contacted Dr. Maplethorp’s
office on February 2, 2010 and an appointment was scheduled for February 23,
2010, during which Dr. Maplethorp noted that his jaw was "very
asymmetric" and the right joint was "noisy".

·      
On April 22, 2010, Dr. Maplethorp
made notes outlining two alternative treatment plans. The first involved braces
and jaw surgery and the second involved braces alone. She also noted a third
option of doing nothing or, as she put it in her notes, "Accept as is".
It is not clear from her records whether these options were discussed with Mr. Williams
on April 22, 2010.

·      
In a letter written to Mr. Williams’
lawyer in July 2012, Dr. Maplethorp stated that a treatment plan was "finalized"
during a consultation with Mr. Williams on May 20, 2010.

·      
On June 2, 2010, Dr. Maplethorp
wrote to Dr. McDonald, an oral surgeon, asking that he examine Mr. Williams
"with regard to a possible combined orthodontic/orthognathic surgical
treatment plan". In that letter she outlined the plan as including the
possible extraction of teeth and orthognathic (jaw) surgery to be performed by Dr. McDonald
combined with braces to be applied by Dr. Maplethorp. Dr. Maplethorp
asked for Dr. McDonald’s comments "in order to finalize the treatment
plan".

·      
On June 3, 2010, Dr. Maplethorp
wrote to Dr. Bing, Mr. Williams’ regular dentist, outlining both the
surgical option and the option involving braces alone. She advised Dr. Bing
that she was waiting for Dr. McDonald’s opinion before proceeding.

·      
Mr. Williams saw Dr. McDonald
on June 23, 2010. In Dr. McDonald’s subsequent report to Dr. Maplethorp,
he noted the "recent MVA" and TMJ problems which he said should be
sorted out first.

·      
Dr. Dodds referred Mr. Williams
to Dr. Courtemanche on June 28, 2010, but due to Dr. Courtemanche’s
waiting list, he did not see Dr. Courtemanche until two years later, in
June 2012.

·      
In July 2010, Mr. Williams
commenced conservative care for the TMJ pain under the supervision of Dr. Ng,
an oral medicine specialist. This included a soft food diet, moist heat
application, muscle relaxants and anti-inflammatories. By December 13, 2010, Dr. Ng
reported that Mr. Williams’ TMJ disorder had been unresponsive to conventional
care.

·      
On December 17, 2010, Dr. Maplethorp
noted, in her clinical records, that Dr. Dodds "feels ortho &
surgery is the best option as no other options are working".

·      
The orthodontic treatment
commenced in March 2011, when Dr. McDonald extracted six teeth. This was
followed up by Dr. Maplethorp putting on the braces in April 2011.

·      
Over a year later, in June 2012, Mr. Williams
finally saw Dr. Courtemanche who recommended that the orthodontic
treatment proceed to the next phase, which was the surgery. In a letter to Dr. Dodds
he explained "it’s likely that if he gets a good balance between the
position of centric occlusion and centric relation, that this will mitigate his
TM joint symptoms".

·      
Dr. McDonald did the initial
jaw surgery in January 2013, which involved severing both the upper and lower
jaw, repositioning and fixing it into place with hardware.

[48]        
From the foregoing, I find that Mr. Williams
consulted Dr. Maplethorp in February 2010 to consider orthodontic
treatment for cosmetic reasons. I find that between February 23, 2010 and April
22, 2010, Dr. Maplethorp formulated two treatment options, including the
option that was ultimately pursued, for the purpose of realigning Mr. Williams’
jaw and correcting his bite and that, as of April 22, 2010, doing nothing still
remained an option. Although it is likely that Dr. Maplethorp discussed
the options with Mr. Williams on May 20, 2010, no treatment plan was
finalized in May 2010, notwithstanding the statement in her July 2012 letter to
Mr. Williams’ lawyer. This is clear from the fact that in June 2010, Dr. Maplethorp
asked for Dr. McDonald’s views before finalizing the plan, and also
advised Dr. Bing that two options remained under consideration and that
she was waiting for Dr. McDonald’s opinion. Finally, I find that the
consideration of pursuing any orthodontic treatment at all was suspended in
June 2010, when Dr. McDonald said the TMJ problems should be sorted out
first.

[49]        
The next question is whether Mr. Williams
suffered from any TMJ disorder symptoms prior to the accident on April 4, 2010.
He testified that he did not have jaw pain until after the accident. As already
noted, Dr. Maplethorp’s clinical records indicate that on February 23,
2010 Mr. Williams’ right jaw joint was noisy, but Dr. Courtemanche
testified that many people have noisy joints and never develop any TMJ
dysfunction or pain.

[50]        
Dr. Dodds’ clinical records
make no note of any TMJ complaints prior to the accident and, in his first
medical legal report written for this action, Dr. Dodds reported that Mr. Williams
"never complained of, nor displayed symptoms of, jaw joint abnormalities"
prior to the April 2010 accident. However, in his June 28, 2010 referral note
to Dr. Courtemanche, Dr. Dodds stated that Mr. Williams had "TMJ
problems for some time" and "he is worsening since MVA (April 2010)".
In a form Dr. Dodds submitted to ICBC in June 2010, he referred to the jaw
as "worse". The defendant submits that this evidence suggests Mr. Williams’
TMJ problems pre-dated the accident.

[51]        
Dr. Dodds testified that it appears he was mistaken in his referral
note to Dr. Courtemanche in suggesting that Mr. Williams’ TMJ
symptoms pre-dated the April 2010 accident. He repeated that he did not record any
complaints of jaw pain or symptoms in his pre-accident clinical records and, to
his recollection, Mr. Williams never mentioned jaw pain prior to the
accident. He also maintained that the June 2010 ICBC form accurately recorded Mr. Williams’
condition on the date it was prepared and that the jaw symptoms were worse in
June than they were in April when Mr. Williams first reported them.

[52]        
Although Dr. Dodds was
prepared to acknowledge that his referral note mistakenly suggested the TMJ
problems pre-dated the accident, in my view the note is ambiguous. By late June
2010, Mr. Williams had been experiencing TMJ pain for nearly three months that
was significant enough to cause Dr. Dodds to refer him to physiotherapy
and to requisition an MRI. That is consistent with Mr. Williams having had
TMJ problems for "some time". Also, the statement that he was "worsening
since the MVA" could mean that he has been getting progressively worse
since the MVA. It does not necessarily mean that the problems pre-existed the
accident. It is unfortunate that the note is ambiguous but, in my view, when it
is considered in the context of all the evidence, it does not establish, on a
balance of probabilities, that Mr. Williams had any TMJ disorder before
the accident. Similarly, I accept that the June 2010 ICBC form indicates only
that the symptoms were worse in June than they were in April.

[53]        
For the forgoing reasons, I find
that Mr. Williams’ right jaw was noisy in February 2010, when he saw Dr. Maplethorp,
but that he did not suffer from any jaw pain or TMJ disorder until after the
April 2010 accident.

The Accident

[54]        
The accident occurred on April 4,
2010. Mr. Williams’ mother was driving a 2007 Kia Sport motor vehicle. Mr. Williams’
father was in the front passenger seat and Mr. Williams was in the back
seat behind his father. They were stopped on Hastings Street in Burnaby, close
to Willingdon, when they were hit from behind. Mr. Williams’ father
testified he felt a big jolt and was sprung forward. He said he injured his
back and shoulder and, although he was not able to perform all his duties at
work for a few weeks, he did not take any time off work. Mr. Williams’
mother went to the doctor after the accident but she did not testify to having
been injured.

After the Accident

[55]        
Mr. Williams experienced
immediate pain in his back after the accident. The pain became more intense
over the next few hours. By the next day he was experiencing pain in his neck
and shoulder as well. The pain became progressively worse and he had also developed
pain in his jaw. The pain interfered with Mr. Williams’ ability to work
and to pursue recreational activities. He did not return to work at Tireland.

[56]        
Mr. Williams first saw Dr. Dodds
two days after the accident, on April 6, 2010. Dr. Dodds initially
diagnosed multiple soft-tissue injuries and he wrote a referral slip for
physiotherapy that noted both "back" and "TMJ".

[57]        
Mr. Williams commenced
physiotherapy at Meadowvale Physiotherapy for both his back and his TM joints. In
late April, he started active physiotherapy at Karp Rehabilitation, and after
that at West Coast Physiotherapy. He attended physiotherapy regularly between
April 2010 and December 2010, and more sporadically since. He has attended over
100 physiotherapy sessions during the five years between the accident and the
trial. He testified that when not attending physiotherapy, he exercises at
home, following regimes established for him by his physiotherapists.

[58]        
Over the years since the accident,
Mr. Williams has seen Dr. Dodds regularly complaining of headaches,
pain in the mid- and lower back, neck and shoulders, and jaw pain. By May 2010,
Dr. Dodds was noting spasm and decreased bulk and tone in the muscles in
his back, decreased range of motion in the jaw, and increased deviation of the
jaw to the right.

[59]        
In late June 2010, Dr. Dodds
referred Mr. Williams to Dr. Courtemanche for the jaw symptoms and
requisitioned an MRI of the jaw. Also in late June 2010, Mr. Williams
reported to Dr. Dodds that he was experiencing depressive symptoms
including decreased energy, disturbed sleep, irritability, and short-term
memory problems. Dr. Dodds prescribed Sertraline and Mr. Williams
reported some improvement in these symptoms by July 9, 2010.

[60]        
In July 2010, Mr. Williams
started the conservative TMJ treatment under the care of Dr. Ng.

[61]        
On August 5, 2010, Mr. Williams
was in another motor vehicle accident, during which he struck his face on the
steering wheel. Mr. Williams testified that he injured his nose and
experienced a temporary exacerbation of his back pain in this accident. At an
appointment a few days later, Dr. Dodds noted bruising on Mr. Williams’
nose and that his back symptoms appeared unchanged. Dr. Dodds expressed
the view, at trial, that this accident did not affect Mr. Williams’ jaw
symptoms but in a form he completed for ICBC on October 23, 2010 in relation to
the August 2010 accident he wrote "hit face on airbag (nose mostly) jaw
affected". Mr. Williams testified that he does not recall the jaw
pain being exacerbated by this accident.

[62]        
Mr. Williams had an MRI of
his jaw in October 2010. It showed dislocation of the discs in both TM joints. According
to Dr. Courtemanche, who reviewed the films nearly two years later, on the
right side the disc was reverting to its normal position when Mr. Williams
opened his mouth, which is referred to as "recapturing", but on the
left side the disc remained out of position even when the mouth was opened.

[63]        
Mr. Williams was involved in
another motor vehicle accident on November 29, 2010, when a truck backed into
the car he was driving. Mr. Williams testified that he felt a temporary
exacerbation of his back pain. He next saw Dr. Dodds on December 6, 2010. Dr. Dodd
testified that he did not examine Mr. Williams’ back at that appointment because
the same areas were involved, and the jaw was his priority. Dr. Dodds
noted a significant decrease in Mr. Williams’ ability to open his jaw and
ongoing deviation to the right side when opening.

[64]        
By December 2010, Dr. Ng reported that Mr. Williams was
suffering from chronic TMJ disorder and that conventional care was "unlikely
to provide any predictable perceived effect". Dr. Dodds reviewed Dr. Maplethorp’s
records and concluded that Mr. Williams should proceed with the
orthodontic treatment in the hope that the correction of his bite would reduce
the stress on his TM joints.

[65]        
In December 2010, Mr. Williams
started working part time as a bartender at the Golden Ears Pub. Lionel Del
Valle, his former supervisor at McDonald’s, was managing the pub and he offered
Mr. Williams the job. Mr. Williams testified that he worked
two to three shifts a week, on average, and he initially enjoyed the job. His
role was limited to making drinks for the serving staff, and he was not
required to perform any heavy duties.

[66]        
On January 7, 2011, Mr. Williams
was struck in the back of the head by a police officer at a bar. He testified
that his head was bruised and he had some stiffness in this neck.

[67]        
On March 14, 2011, Mr. Williams
underwent the first phase of the orthodontic treatment. Six teeth were
extracted by Dr. McDonald. Following the extraction, his pain increased
significantly and Dr. Dodds prescribed Percocet for the first time. In
April 2011, Mr. Williams was fitted with braces, the ongoing adjustment of
which caused considerable pain. He continued taking Percocet, and has taken it daily
ever since. He now takes up to 10 or 12 tablets per day.

[68]        
By the fall of 2011, Mr. Williams’
chronic pain and depressive symptoms had worsened. Mr. Williams had
earlier stopped taking the Sertraline on his own which, according to Dr. Dodds,
"had resulted in dramatically increased fatigue, terminal insomnia,
nonrestorative sleep and a substantial increase in pain". Dr. Dodds
again prescribed Sertraline and also Gabapentin and anti-inflammatories. The Sertraline
dosage was increased in November 2011.

[69]        
Mr. Williams quit the
bartending job in December 2011. He testified that he was being bullied by a
new manager who took over from Mr. Del Valle. He said he put up with it
for as long as he could, but by December 2011, the situation was intolerable.
His co-worker at the pub, Mr. Bruinsma, corroborated this testimony, as
did Mr. Del Valle. Mr. Williams made some modest efforts to obtain
another bartending job, but he was not successful. He testified that he
remained in pain, he was feeling less hopeful about his prospects of recovery,
and that "things were falling apart". He has not worked since.

[70]        
By January 2012, Mr. Williams
had again stopped the Sertraline on his own. Dr. Dodds prescribed a
different anti-depressant called Trazodone.

[71]        
Mr. Williams continued to see
Dr. Dodds regularly for analgesic reassessment and prescription renewals.
By April 2012, the Trazodone dosage had been increased. Dr. Dodds noted
that "tolerance to Oxycodone was emerging as an issue". An attempt
was made to substitute Tramadol and Codeine for the Percocet, but this was not
effective. In addition, a change to long-acting morphine was discussed but Mr. Williams
did not want to switch to a stronger pain medication so he remained on
Percocet.

[72]        
Mr. Williams’ first
appointment with Dr. Courtemanche was on June 25, 2012. Dr. Courtemanche
noted reduced range of motion in Mr. Williams’
jaw and palpable muscle spasm. He also noted that the October 2010 MRI scan
showed the left disc out of position and the right disc recapturing with mouth
opening. After this first appointment, Dr. Courtemanche wrote to Dr. Dodds,
recommending that Mr. Williams complete the orthodontic treatment. His
letter reads, in part:

Given that he’s most of the
way through orthodontic treatment leading to orthognathic surgery, it would
appear that this should best be completed. It’s likely that if he gets a good
balance between the position of concentric occlusion and concentric relation,
that this will mitigate his TM joint symptoms. It may be that the left TMJ
joint is congenitally abnormal and things will not settle down and that his
injury has unmasked the underlying potential pathology.

I don’t see an indication for
operative management of his joint pathology and I think he should complete his
current course of treatment with Drs. Maplethorp and McDonald and see how
things go.

[73]        
Mr. Williams next saw Dr. Courtemanche on September 19,
2012. He was still wearing braces and waiting for the jaw surgery. Dr. Courtemanche
noted continuing muscle spasm in the jaw area and significantly reduced range
of motion. Mr. Williams’ interincisal opening range of motion was measured
at 18 mm. According to Dr. Courtemanche, a normal measure would be 42 mm. Mr. Williams’
lateral jaw movement was also restricted.

[74]        
Mr. Williams continued to see
Dr. Dodds regularly between the fall of 2012 and June 2013. Dr. Dodds
testified that he thought Mr. Williams’ back problems had worsened. He
noted that Mr. Williams’ overall muscle tone and bulk had further
decreased in the mid- and upper back on both sides. He noted persistent spasm
and decreased bulk in the shoulders as well.

[75]        
Mr. Williams testified that
he tried smoking marijuana for pain relief. He said he had not smoked it before
and did it only because he was desperate for pain relief. In late 2012, he
discussed this with Dr. Dodds, and Dr. Dodds signed a form that was
required for Mr. Williams to purchase marijuana from a dispensary. He then
smoked marijuana occasionally over a period of a few months, but stopped
because he did not like the side effects which included anxiety.

[76]        
On January 17, 2013, the jaw
surgery was performed by Dr. McDonald. Both the upper and lower jaw bones
were cut and repositioned with metal plates and screws implanted to hold them
in place. Mr. Williams testified that after the surgery he was swollen for
several months and the jaw pain was initially worse, but then settled back to
its previous level.

[77]        
Mr. Williams next saw Dr. Courtemanche
on May 7, 2013. He still had the braces on. He continued to experience a lot of
pain, but his bite and range of motion had improved. At trial, Dr. Courtemanche
said that pain, three months post-surgery, was not unusual and he remained optimistic.

[78]        
Mr. Williams next saw Dr. Courtemanche
on July 10, 2013. He still had his braces on. Dr. Courtemanche noted
muscle spasm, but said he continued to be of the view that Mr. Williams should
"wait and see" if the pain would resolve.

[79]        
Mr. Williams had the braces
removed in mid-January 2014 and he saw Dr. Courtemanche
a few days later. His range of motion was close to normal, but the pain remained
and he continued to take Percocet daily.

[80]        
Mr. Williams testified that
following the initial jaw surgery he had discomfort at the sites of the
hardware. He said he had been warned by Dr. McDonald that this might occur
and the hardware might have to be removed. On March 12, 2014, Mr. Williams
had a second surgery, performed by Dr. McDonald, to remove the plates and
screws.

[81]        
Mr. Williams testified that
his jaw pain never improved following the surgeries. He said he had to go to
the emergency department at the hospital several times over the years because the
pain was unbearable.

[82]        
By April 2014, Dr. Courtemanche
concluded that the orthodontic treatment had failed. Mr. Williams’ bite
was corrected, but there was no alleviation of the pain, his range of motion
had regressed, and he continued to experience spasm in his jaw.

[83]        
Dr. Courtemanche testified
that he next focused on managing Mr. Williams’ muscle spasm to see if that
would relieve the pain. He recommended exercise, stretching, heat, massage and
acupuncture. Between April 16, 2014 and March 20, 2015, Mr. Williams saw Dr. Courtemanche
on seven occasions. Mr. Williams followed Dr. Courtemanche’s
recommendations, including acupuncture, but nothing helped. His range of motion
remained restricted and he continued to have a lot of muscle spasm. Dr. Courtemanche
tried Botox treatments for the muscle spasm which Mr. Williams said
offered only minor and temporary relief.

[84]        
In the summer of 2014, Dr. Dodds
referred Mr. Williams to a psychologist named Dr. David Lingley.

[85]        
By late September 2014, Dr. Dodds
noted a worsening of Mr. Williams’ reports of anxiety and depression. The PharmaNet
records show that in late September Mr. Williams filled prescriptions from
Dr. Dodds for Sertraline and Ativan. It was not explained why Dr. Dodds
reverted to Sertraline from Trazodone.

[86]        
In December 2014, Mr. Williams was assessed by Dr. Smith.
I will address her opinions in the causation section of this judgment. For now
I note only that Dr. Smith diagnosed Mr. Williams as probably
suffering from an adjustment disorder with mixed anxiety and depressed mood and
somatic symptom disorder with predominant pain.

[87]        
On December 30, 2014, Mr. Williams was involved in another
accident. He testified that he felt a temporary worsening of his back pain but
no change to his jaw symptoms.

[88]        
In January 2015, another MRI was
performed on Mr. Williams’ jaw. Dr. Courtemanche testified that this
MRI showed that the left disc was permanently dislocated. The right disc was
abnormal, with some dislocation, but it continued to "recapture". However,
some degenerative changes in the jaw joints were now apparent, which suggested
osteoarthritis. Dr. Courtemanche said the MRI indicated changes so
extensive that, in his view, the left disc will never function.

[89]        
By February 2015, Dr. Courtemanche
had formed the view that Mr. Williams should undergo TM joint surgery so
that he could actually examine the left joint and possibly remove the left
disc. However, Dr. McDonald subsequently expressed a contrary opinion and Mr. Williams
remains undecided as to whether to have the further surgery.

[90]        
At trial, Dr. Courtemanche
said the surgery he is now recommending could improve Mr. Williams’ pain,
but it could also make it worse, or it could have no effect at all. He agreed
the same could be said about the surgery performed by Dr. McDonald: there
was a possibility that it would relieve the pain, but also a possibility that
it would make it worse or have no effect. He agreed that, in the result, it
made it worse.

What injuries and conditions were caused or contributed to by the accident?

[91]        
The test for causation,
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17,
is the "but for" test. Mr. Williams must establish that it is
more likely than not that, but for the April 4, 2010 accident, he would not
have suffered the injuries underlying his claim. However, he does not have to
establish that the accident is the sole
cause of the injuries. So long as he proves that the defendant’s negligence is
part of the cause of an injury, beyond the de minimus range, the
defendant will be fully liable for the harm suffered, even if other causal
factors, for which the defendant is not responsible, contributed to the harm: Athey; Blackwater v. Plint, 2005 SCC 58; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32; Farrant
v. Laktin, 2011 BCCA 336.

[92]        
Where there are potentially
multiple causes of a plaintiff’s injuries, it is necessary to determine whether
the injuries are divisible or indivisible in order to ensure that the
defendants are not held liable for injuries not caused by their negligence: Athey,
at paras. 24-25. Indivisible injuries are those that cannot be separated
or have liability attributed to the constituent causes whereas divisible
injuries are those capable of being separated out and having their damages
assessed independently: Bradley v. Groves, 2010 BCCA 361, at para. 20,
leave to appeal ref’d [2010] S.C.C.A. No. 337. If an injury is
indivisible, subject to contributory negligence, the defendant is liable for
all damages attributable to that injury regardless of the contribution of other
causes: Athey, at paras. 17-20, 25.

[93]        
Causation need not be determined
by scientific precision and is best answered with ordinary common sense: Athey,
at para. 16. It is also important to keep in mind that legal causation
is not the same as medical causation. In law, in determining the cause of
complex medical conditions, all the plaintiff must prove is that it is more
likely than not that without the tort, the condition would not have developed.

[94]        
Mr. Williams’ complaints are grouped into three categories:

(a)      pain
in the neck, back and shoulder girdle area;

(b)      jaw
pain; and

(c)      psychological
disorders, including depressive symptoms and anxiety.

[95]        
Before addressing each of these groups of complaints, I wish to address
the opinion evidence of Dr. Dodds. In addition to chronicling the history of
his treatment of Mr. Williams, Dr. Dodds provided opinion evidence
with respect to causation and prognosis. The defendant submits that while there
was no reason to question the reliability of Dr. Dodds’ evidence concerning
his treatment of Mr. Williams, he was biased in favor of Mr. Williams
and, as such, his opinion evidence should be given little weight. Dr. Dodds
impressed me as a dedicated physician who, over his almost lifelong
relationship with Mr. Williams, has developed a genuine fondness for him. Dr. Dodds
has been passionate in his efforts to assist Mr. Williams. I have no doubt
that he has been and will continue to be an invaluable source of support for Mr. Williams.
The question is whether, in his concern for Mr. Williams, he has become
partial and his opinions therefore unreliable. I have considered that question
carefully but have come to the conclusion that it is not necessary to answer it.
This is because Dr. Dodds’ opinions add little, if anything, to the
opinions of the other experts and, as a result, it is not necessary for me to
rely on them.

The Neck, Back and Shoulder Girdle

[96]        
I have no hesitation in finding that since the accident, Mr. Williams
has suffered from pain in his neck, mid-back and left shoulder girdle that
fluctuates depending on his activities. The symptoms are exacerbated by
activities such as prolonged sitting and bending. For the reasons already
explained, I found Mr. Williams to be a credible witness and I accept his
evidence concerning his physical symptoms, their progression, and the resulting
impact on his functionality.

[97]        
Mr. Williams relied on the opinion evidence of Dr. Mark
Adrian, respecting the cause of and prognosis for his back, neck and shoulder
complaints. Dr. Adrian is a physician who
is certified in the specialty of physical medicine and rehabilitation. He has
further fellowship training in the subspecialty of spine, musculoskeletal, and
sports medicine, and has received certification in the subspecialty of pain
medicine. He is on the staff of the Department of Orthopedics, Division of
Spine, at Vancouver General Hospital, and is a member of the Department of
Physical Medicine and Rehabilitation at UBC.

[98]        
Dr. Adrian assessed Mr. Williams
on August 13, 2014, and then prepared his expert report. No objection was made
to Dr. Adrian’s qualifications as a physician with a specialty in physical
medicine and rehabilitation. No objection was made to the admissibility of any
portion of his report.

[99]        
Dr. Adrian summarized Mr. Williams’
medical history. He assumed Mr. Williams suffered injuries to his hands,
neck, shoulder girdle and back in the August 2009 assault and that those
symptoms gradually resolved prior to the April 4, 2010 accident. He also
assumed that Mr. Williams experienced temporary exacerbation of his spinal
and left shoulder girdle symptoms in the motor vehicle accidents that occurred
in August 2010 and November 2010, as well as a temporary exacerbation of his
symptoms following the incident in the bar in January 2011.

[100]     Dr. Adrian reported that the results of his
examination were consistent with Mr. Williams suffering physical force to
the tissues in his neck, back and left shoulder girdle, and that Mr. Williams
described a pattern of pain symptoms consistent with such an injury. He diagnosed
Mr. Williams as having mechanical neck and mid-back pain, and soft-tissue
pain in the left shoulder girdle. In his opinion, these symptoms were caused by
the April 2010 motor vehicle accident. He also expressed the opinion that due
to Mr. Williams’ history of pre-accident spinal symptoms and left shoulder
girdle pain, he was probably vulnerable to injury in these areas.  However, he
went on to state that, given his symptoms had resolved prior to the April 2010
accident, "it is unlikely that he would spontaneously develop persistent,
regularly occurring and physically-limiting" pain in these areas had it
not been for the April 4, 2010 accident. In cross-examination he confirmed his
understanding that the subsequent incidents resulted in temporary flare-ups of
the symptoms which then settled back at the prior level. He said that in these
circumstances he does not think the subsequent events, even the combination of
them, would themselves have led to chronic ongoing pain.

[101]     Dr. Adrian’s prognosis is that Mr. Williams’
neck, back and shoulder pain is likely to remain the same and that he is
vulnerable to future injury in these areas. He expressed his prognosis in his
report:

In my experience, individuals suffering from mechanical
spinal pain or soft tissue pain following an injury experience improvement over
time. Some individuals, however, experience persistent pain despite the passage
of time. In other words, not all individuals will recover from these types of
injuries. In my experience, individuals suffering beyond two years from the
injury date are unlikely to experience further significant improvement.

Over two years has elapsed since
the accident. Mr. Williams experiences persistent, physically limiting
mechanical spinal pain (neck and back pain) and soft tissue pain affecting his
left shoulder girdle. The prognosis for further recovery of the injuries
suffered to his spinal column and soft tissues of the shoulder girdle over time
is poor. It is unlikely that the injuries suffered to his spinal column or soft
tissues will undergo progressive deterioration over time. Due to his injuries,
his neck, back and shoulder girdle are vulnerable to future injury.

[102]     Dr. Adrian also expressed the opinion that Mr. Williams’
functional limitations are unlikely to resolve and that he is permanently
partially disabled as a result of the neck, back and shoulder injuries. In this
regard he wrote:

Mr. Williams will probably continue to experience
difficulty performing activities that place physical forces onto the painful
and injured structures involving his neck, left shoulder girdle, and mid back.
Specifically, he will probably experience difficulty performing activities that
require heavy or repetitive lifting; prolonged awkward spinal positioning;
prolonged sitting; standing; or stooping; impact activities; or repetitive or
prolonged reaching, particularly involving his left upper extremity. These physical
limitations are unlikely to resolve with time. In my opinion, Mr. Williams
is permanently partially disabled as a result of the injuries suffered in the
motor vehicle accident.

Mr. Williams is not
suited to employment that involves the above listed activities as core
components. He is most suited to lighter duty, flexible employment activities,
with a sympathetic employer, that allows him to frequently alter his position
and posture and do not involve the above listed physical components as core components
of his work.

[103]     At trial, Dr. Adrian confirmed that his comment
about Mr. Williams being best suited to lighter duty jobs was made without
regard for his jaw problems and psychological issues.

[104]     The defendant relies on the opinion evidence of Dr. Locht
who is an orthopedic surgeon, qualified as such by the Royal College of
Physicians and Surgeons of Canada. He has practised as on orthopedic surgeon at
Chilliwack General Hospital since 1999. He has an appointment as a Clinical
instructor in the Department of Orthopaedics at UBC.

[105]     Dr. Locht assessed Mr. Williams on February
13, 2015, and then prepared an expert report. No objection was made to Dr. Locht’s
qualifications as an expert in orthopedic surgery. No objection was made to the
admissibility of any portion of his report.

[106]     There was significant agreement between Dr. Locht’s
and Dr. Adrian’s opinions. Dr. Locht agreed that Mr. Williams
suffered soft-tissue injuries or musculoligamentous strains/sprains to the
upper and lower trunk in the April 2010 accident and that those injuries "most
probably are contributing to his current pain complaints". Dr. Locht
expressed the view that the August 2010 and November 2010 accidents temporarily
aggravated the previous soft-tissue injuries. He said he could not determine
how much each event is contributing to Mr. Williams current pain
complaints but that the November 2010 accident likely had "minimal effect".
He stated that even in the absence of those two subsequent accidents "it
is likely that Mr. Williams would still be experiencing discomfort
aggravated by physical activities". Dr. Locht’s also said the
injuries suffered in 2009 had probably resolved before the April 2010 accident
and were not likely the cause or a contributing factor to the injuries suffered
in the April 2010 accident.

[107]     There were two material differences between Dr. Locht’s
opinions and those of Dr. Adrian, both of which related to the emphasis Dr. Locht
placed on what he characterized as a lack of objective symptoms. Dr. Locht
acknowledged that Dr. Dodds’ clinical records repeatedly documented muscle
spasm and decreased muscle tone and bulk, but it is Dr. Locht’s view that
muscle spasm and flaccidity are not objective symptoms.

[108]     The first material difference between Dr. Locht’s
evidence and that of Dr. Adrian concerned Mr. Williams’ functionality.
Dr. Locht opined that there is "no evidence to support a definable
musculoskeletal condition that would support a work disability, including all
of Mr. Williams duties at Tireland", that it is reasonable to
conclude that Mr. Williams "would most probably have" been able
to return to limited light duties, such as working at McDonald’s part time,
within six months of the accident, and to full physical duties at Tireland
within two years of the November 2010 accident. Dr. Locht did not say
that, in this opinion, Mr. Williams "was" able to return to
work, but rather, that he "would have been able" to do so. It is not
clear to me whether this is material, but the ambiguity affects the weight I am
prepared to give the report. The second material difference between Dr. Locht’s
evidence and that of Dr. Adrian concerned Mr. Williams’ prognosis. Dr. Locht
expressed the view that is not possible to provide an accurate prognosis, other
than ruling out the likelihood that Mr. Williams will develop a
pathological condition such as a herniated disc in the future, because Mr. Williams’
clinical presentation relies entirely on subjective complaints of pain.

[109]     Dr. Locht’s view that muscle spasm and decreased
muscle tone are not objective symptoms was not well developed, likely because
it arose for the first time in cross-examination. He seemed to be saying that
muscle spasm and flaccidity cannot be objectively observed by a physician or
can be subjectively triggered by a patient, or both. Irrespective of that
somewhat controversial view, for the reasons expressed below I have concluded
that I prefer Dr. Adrian’s opinions to the extent that they differ.

[110]     Dr. Locht acknowledged, at trial, that he found
no evidence of any amplified pain behaviours during his interview and
examination of Mr. Williams and he agreed that Mr. Williams was
probably truthful when he described his history of pain and functionality. Dr. Locht
also acknowledged that psychosocial factors play a significant role in
amplifying the pain perception pathways and illness behaviour of a patient and,
accordingly, if Mr. Williams is suffering from a mood disorder, this is
most probably playing a major role in his pain and functional abilities. He
agreed that psychological injuries "prognosticate a poor recovery".
He acknowledged that some patients who suffer soft-tissue injuries do have
dysfunctional pain and some never recover, despite the absence of any
pathological physical condition. He did not explain why, notwithstanding those
acknowledgments and agreements, he could not provide a prognosis for Mr. Williams
and thought Mr. Williams would have been able to return to work. His
failure to provide an explanation caused me to prefer Dr. Adrian’s
opinions.

[111]     For the foregoing reasons, I find that Mr. Williams
suffered soft-tissue injuries to his neck, upper and mid-back and left shoulder
girdle in the accident; those injuries continue to cause him ongoing, disabling
pain; given the time that has elapsed since the accident, the prognosis for
further recovery of these injuries is poor; he will probably continue to
experience difficulty performing physical activities, particularly those that
require heavy or repetitive lifting, prolonged awkward spinal positioning,
prolonged sitting, standing or stooping, and repetitive or prolonged reaching;
and these physical limitations are unlikely to resolve.

The Jaw

[112]     I have no hesitation in finding that since the accident,
Mr. Williams has suffered from constant jaw pain that has become
progressively worse and debilitating. Again, I accept Mr. Williams’ evidence
in this regard. The discs in his TM joints are dislocated, permanently on the
left and partially on the right. This has caused degeneration in the joints
that has developed into incurable osteoarthritis.

[113]     Mr. Williams relied on the opinion evidence of Dr. Courtemanche
respecting the cause of and prognosis for the TMJ disorder. There was no
contradictory medical evidence. Dr. Courtemanche is a plastic surgeon,
qualified as such by the Royal College of Physicians and Surgeons of Canada. In
addition to his training as a plastic surgeon, he completed a fellowship in
craniofacial surgery and has a special interest in treating TMJ disorders. As
already noted, since June 2012, he has been the physician with primary
responsibility for treating Mr. Williams’ TMJ disorder.

[114]     In his August 23, 2013 report, Dr. Courtemanche
expressed his opinion with respect to causation:

It is my opinion that the
patient has a congenital anomaly affecting his face. His TM joint is [sic]
dysfunction is a result of his motor vehicle accident and he was possibly
predisposed to this on the basis of his congenital anomaly.

I would say that on the
balance of probabilities the TM joint problem was caused by the motor vehicle
[accident].

[115]     This opinion was written a few months after the jaw
surgery in January 2013. It is apparent from his testimony at trial that until
at least January 2014, Dr. Courtemanche remained optimistic that the
orthodontic treatment would result in the alleviation of the TMJ pain. He
testified that, with hindsight, he probably would not have proposed that Mr. Williams
undergo the jaw surgery performed by Dr. McDonald, but that it was
nevertheless reasonable for Dr. Maplethorp and Dr. McDonald to
recommend it at the time. That is consistent with the fact that when he first
saw Mr. Williams in June 2012, he recommended, in his consult letter to Dr. Dodds,
that the orthodontic treatment, including the surgery, proceed because it might
"mitigate his TM joint symptoms" but also pointed out that the TMJ
symptoms might "not settle down and that his injury has unmasked the
underlying potential pathology".

[116]     As already discussed, the orthodontic treatment did
not resolve the problem. To the contrary, in Dr. Courtemanche’s opinion it
exacerbated it. In a consultation report Dr. Courtemanche wrote to Dr. Dodds
on March 20, 2015, Dr. Courtemanche expressed the following opinion
regarding the cause of Mr. Williams’ current TMJ condition:

I have told Steven that I’m
going to write to his lawyers and indicate that his jaw pain will likely be
chronic, that the motor vehicle accident is one contributing factor, that the
jaw surgery may be another contributing factor and that he might possibly have
been predisposed to this by what I think is mild hemifacial microsomia.

At trial, Dr. Courtemanche clarified that
hemifacial microsomia is a reference to Mr. Williams’ facial asymmetry
caused by the shortened mandible.

[117]     At trial, Dr. Courtemanche explained that the
direct cause of TMJ disorder is degeneration in the TM joints. He did
not agree that Mr. Williams’ congenital condition, on its own, increased
the likelihood of Mr. Williams developing TMJ disorder. Similarly, Dr. Courtemanche
explained that an abnormal bite can be a contributing factor in TMJ disorders,
but he said it is not the cause. Some people with bad bites have no TMJ
problems and some people with good bites have TMJ problems. Dr. Courtemanche
said that his reference in his report to Mr. Williams being predisposed
meant that, because of his anatomy, Mr. Williams was more susceptible than
a person without abnormal autonomy to developing TMJ symptoms following a
trauma.

[118]     In Dr. Courtemanche’s view, the likely mechanism
of injury was Mr. Williams clenching his teeth in the April 2010 accident.
He said this is "completely compatible" with tearing a ligament in
the TM joint, which resulted in the disc displacement seen in the October 2010
MRI. This, together with the onset of the pain shortly after the accident,
underlies his opinion that the accident was the "precipitating cause"
of the TMJ disorder.

[119]     Dr. Courtemanche acknowledged that he was unaware
of the August 2010 and November 2010 accidents when he expressed his initial
opinion on causation, but he said that the pain surfaced immediately after the
April 2010 accident, which is inconsistent with either of the later accidents
being the precipitating cause. Nor did he know that in January 2011 Mr. Williams
was hit on the back of his head, but he said such a hit would not, in his view,
cause a TM joint injury. Of course, that incident occurred several months after
the pain developed, after the October 2010 MRI which showed the dislocation of
the discs, and after Mr. Williams’ TMJ disorder had been treated by Dr. Ng.

[120]     Dr. Courtemanche explained that when a disc is
out of position, there is mechanical wear and tear when the jaw opens and
closes. The cartilage wears away and leads to reactive new bone formation
referred to as osteophytes or bone spurs. Once the bone is involved, the
condition is referred to as osteoarthritis. He said that the MRI performed on Mr. Williams’
jaw in January 2015 indicates this is Mr. Williams’ current status. He
also said the October 2010 MRI shows disc pathology but not osteoarthritis,
which implies that the condition is worsening. Dr. Courtemanche said that
the nature of the degenerative changes shown in the January 2015 MRI are very
uncommon in a young man, even a young man with Mr. Williams’ anatomy,
absent trauma or some other pathology.

[121]     As already discussed, Dr. Courtemanche explained
that while the orthodontic treatment had the potential to alleviate the TMJ
disorder, it also had the potential to exacerbate it by increasing the pressure
on the TM joints. This was the basis for the opinion reflected in his March 20,
2015 consultation report to Dr. Dodds respecting the cause of Mr. Williams’
current TMJ condition. He did not retreat, however, from the opinion that the
April 2010 accident was the "precipitating" cause of the TMJ
disorder.

[122]     In his March 27, 2015 report, Dr. Courtemanche
addressed Mr. Williams’ prognosis and the likely outcome from the jaw
joint surgery he now recommends. In that regard his report reads:

…I do not think that surgery
will completely relieve Mr. Williams jaw pain. His MR shows he has
degenerative disease in both joints and this will in all likelihood be a
progressive problem. It is unlikely that joint surgery will completely relieve
his pain but he may well get some temporary significant symptomatic relief.

Mr. Williams is quite
concerned that he will have chronic pain for the rest of his life and was quite
distressed when he and I discussed this and I indicated that in fact this might
well be his true prognosis.

[123]     Dr. Courtemanche’s opinions were not undermined
during cross-examination and the defence tendered no contradictory evidence. I
am not bound to accept uncontradicted evidence; however, Dr. Courtemanche’s
evidence was persuasive.

[124]     The TMJ pain developed within two days of the
accident. While caution must be exercised when inferring causation from a
temporal sequence, Dr. Courtemanche’s opinions are based on significantly
more than a temporal connection. First, Mr. Williams’ anatomy predisposed
him to TMJ disorder when combined with trauma. This demonstrates a relationship
between the congenital anomaly and the accident. Second, the only TMJ symptom
that pre-dated the accident was a noisy right joint and noisy joints, alone, are
common in people who never develop any TMJ dysfunction or pain. Third, the
likely mechanism of injury, the clenching of teeth, is consistent with a
ligament injury resulting in disc dislocation. Mr. Williams’ discs were
dislocated by the time he had the MRI in October 2010. Disc dislocation leads
to wear and tear or degeneration in the joint which is the direct cause of TMJ
disorder. Mr. Williams is now suffering from degeneration in his TM joints
that is uncommon in a man of his age, in the absence of trauma or other
pathology. For these reasons, I find that it is more likely than not that the
April 2010 accident caused the disc pathology which has resulted in the TMJ
disorder. I also find that the TMJ disorder was likely exacerbated by the
orthodontic treatment but the defendant’s negligence was the precipitating
cause and clearly part of the cause beyond the de minimus range. Thus, I
conclude that the TMJ disorder is an indivisible injury and that the April 2010
accident was a necessary and contributing cause of it.

[125]     The
orthodontic treatment itself caused additional pain and suffering and resulted
in Mr. Williams incurring additional costs. Accordingly, it is necessary
to determine whether the orthodontic treatment is causally related to the
accident; in other words, whether it was undertaken in an attempt to alleviate
the TMJ pain, or whether it was undertaken for cosmetic reasons. If the latter,
the defendant, while fully liable for the damages arising from the invisible
TMJ disorder itself, would not be liable for the damages arising only from the
orthodontic treatment.

[126]     I have
already found that Mr. Williams did not decide to proceed with the
orthodontic treatment until after the accident. However the question of why he
ultimately did decide to proceed remains to be determined. The defendant
submits there is no medical evidence establishing that Mr. Williams
required the orthodontic treatment for medical reasons related to his TMJ
disorder. In my view, it is not necessary for Mr. Williams to establish that
he "required" the orthodontic treatment for medical reasons related
to his TMJ disorder. Rather, the question is whether Mr. Williams has
established, on a balance of probabilities, that the orthodontic treatment was
reasonably undertaken as a result of the TMJ disorder: Sengbush v. Priest
(1987), 14 B.C.L.R. (2d) 26 (S.C.).

[127]     Mr. Williams
testified that he went ahead with the orthodontic treatment because he
understood from his doctors, including Dr. Dodds, that aligning his bite
could alleviate his jaw pain.

[128]     It is
clear from Dr. Dodds’ records that by December 2010, when Dr. Ng
concluded that the conservative treatment was not working, he was growing
increasingly concerned about Mr. Williams’ TMJ pain. He had referred Mr. Williams
to Dr. Courtemanche nearly six months earlier but Mr. Williams had
not yet received an appointment. Dr. Dodds followed up with Dr. Courtemanche’s
office asking when an appointment might be made available. By December, Dr. Maplethorp
had been asked to provide her records to Dr. Dodds. On December 16, 2010,
she wrote to Dr. Dodds enclosing her records and advising that she would
be away for Christmas holidays commencing the next day. Her records include a
note dated the next day indicating that Dr. Dodds thought proceeding with
the treatment was the best option "as no other options were working".
The treatment did then proceed early in the new year, with Dr. McDonald
extracting the teeth in March 2011 and Dr. Maplethorp putting on the
braces the following month. This sequence of events suggests that by the time Mr. Williams
decided to proceed, the orthodontic treatment had become an option for treating
his jaw pain.

[129]     Dr. Dodds
testified that by mid- to late 2010, he was in favor of Mr. Williams
proceeding with the orthodontic treatment. He said the "idea" or "hope"
was that the proper alignment of the bite would cause the TMJ pain to resolve
on its own. However, he also said that he did not think the orthodontic
treatment would actually result in the resolution of the TMJ pain. He said he
thought Mr. Williams should proceed with the treatment because the
conservative treatment had failed, he thought it was ultimately going to be
necessary for Dr. Courtemanche to operate on the TM joints themselves, and
Dr. Courtemanche would not proceed until the bite was fixed. It appears
that Dr. Dodds was mistaken when he gave that evidence. While Dr. Courtemanche
did later agree that the orthodontic surgery should proceed because it might "mitigate
[the] TM joint symptoms", Dr. Dodds could not have known, in December
2010, that Dr. Courtemanche would not proceed until the bite was fixed
because Dr. Courtemanche did not see Mr. Williams until June 2012.

[130]     On the
preponderance of the evidence, I am persuaded that by late 2010, Dr. Dodds
had formed the view that the orthodontic treatment should proceed because
conservative treatment of the jaw pain had failed, there was a reasonable
chance that the pain would be alleviated by aligning the bite, and the treatment
could proceed in the interim while Mr. Williams was waiting to get in to
see Dr. Courtemanche.

[131]     By June
2012, when Mr. Williams saw Dr. Courtemanche for the first time, the
first two phases of the orthodontic treatment plan had been completed but the
jaw surgery itself had not yet been performed. As already noted, after seeing Mr. Williams
for the first time, Dr. Courtemanche advised Dr. Dodds that he
thought the orthodontic surgery should proceed because it might "mitigate
[the] TM joint symptoms". At trial, Dr. Courtemanche testified that
the objective of the surgery was to create balance between Mr. Williams’
bite and his jaw joints. He said the hope was that this would alleviate the TMJ
symptoms. Although this did not occur, Dr. Courtemanche nevertheless
maintained, at trial, that it was a reasonable course of treatment to undertake
at the time because of its potential to mitigate the jaw pain.

[132]     For the
foregoing reasons, I find that by the time Mr. Williams decided to proceed
with the orthodontic treatment, his purpose for doing so had changed. I find
that his focus and that of Dr. Dodds was to exhaust all treatment options
that might reasonably alleviate the jaw pain. Although Dr. Courtemanche
was not involved until after the treatment had commenced he was involved before
the surgery, and he recommended that Mr. Williams continue with the
treatment and proceed with the surgery because there was a reasonable
possibility that doing so would alleviate the jaw pain. I find that Mr. Williams
initiated the treatment on the advice of Dr. Dodds, and continued with it
on the advice of Dr. Courtemanche, and that doing so was a reasonable step
for him to take in trying to resolve his jaw pain. The immediate objective of
the treatment was to correct his bite, but the broad purpose was to alleviate
the jaw pain. Thus, I find that the pain, suffering and other damages flowing
directly from the orthodontic treatment were caused by the accident.

The Psychological Disorders

[133]     Mr. Williams
claims damages for psychological injuries including chronic pain, depressive
symptoms and anxiety. He testified about the onset and progression of his low
mood, sleeplessness, anxiety and irritability. He said that the symptoms have
worsened as each treatment for the jaw pain has failed. He is distraught by the
prospect of living the rest of his life in pain. He is plagued by worry about
his future and, in particular, his inability to work. At times, he is
overwhelmed by feelings of hopelessness and despair.

[134]     Mr. Williams’ psychological symptoms first
surfaced, after the accident, in late June 2010. Dr. Dodds prescribed Sertraline
and Mr. Williams reported some improvement by July 9, 2010. He did not
complain to Dr. Dodds again of mood symptoms until the fall of 2011, when Dr. Dodds
once more prescribed Sertraline and also Gabapentin. By January 2012, Mr. Williams
again stopped the Sertraline on his own and Dr. Dodds prescribed Trazodone.
By April 2012, the Trazodone dosage was increased. Nevertheless, he continued
to be plagued with feelings of worry and hopelessness, which worsened over the
ensuing years. He testified that there were days when he was unable to get out
bed. By the fall of 2014, he was again taking Sertraline, Dr. Dodds had
also prescribed Ativan, and Mr. Williams had commenced psychological
counselling.

[135]     The defence did not take serious issue with Mr. Williams’
claim to be suffering from psychological disorders. Rather, the defence positon
was that Mr. Williams has not established that they were caused by the
accident.

[136]     Mr. Williams relied on the opinion evidence of Dr. Smith
respecting the existence of, cause of and prognosis for the psychological
injuries. No contrary opinion evidence was proffered by the defence. Dr. Smith
is a psychiatrist, qualified as such by the Royal College of Physicians and
Surgeons of Canada. She is a certified subspecialist in forensic psychiatry. She
is a clinical assistant professor of psychiatry at UBC and has practised psychiatry
since 1984. Dr. Smith performed an independent assessment of Mr. Williams
on December 9, 2014 and then prepared a report dated December 17, 2014. No
objection was made to Dr. Smith’s qualifications as an expert in
psychiatry. No objection was made to the admissibility of any portion of her
report.

[137]     Dr. Smith summarized Mr. Williams’ history
noting the symptoms Mr. Williams
said he experienced following the 2009 assault, the motor vehicle accident that
is the subject of this action, the motor vehicle accidents of August 2010 and
November 2010, and the assault in 2011. She characterized Mr. Williams’
January 2010 mood symptoms as "low grade and transient depressive symptoms
that followed the assault in 2009".

[138]     Dr. Smith noted that following the April 2010
accident, Mr. Williams became increasingly concerned about the persistent
pain in his jaw and back and about how he was going to be able to work with the
pain. She noted that on June 30, 2010 Dr. Dodds initiated treatment with Sertraline
and that Mr. Williams told her he did not continue to take the Sertraline
at that time. She noted that, at the time of her assessment, he was again taking
Sertraline and had also taken the anti-depressant Trazodone. She also noted
that Mr. Williams had recently started psychological counselling with Dr. Lingley.

[139]     It is Dr. Smith’s opinion that Mr. Williams
is probably suffering from an adjustment disorder with mixed anxiety and
depressed mood. The DSM–5 diagnostic criteria for this condition are:

A.         The development of
emotional and behavioural symptoms in response to an identifiable stressor(s)
occurring within 3 months of the onset of the stressor(s).

B.         These symptoms or behaviours
are clinically significant as evidenced by either of the following:

(1)        marked distress
that is in excess of what would be expected from exposure to the stressor

(2)        significant
impairment in social or occupational (academic) functioning.

C.        The stress related
disturbance does not meet the criteria for another specific Axis I disorder and
is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.

D.        The symptoms do not
represent Bereavement.

E.         Once the stressor
(or its consequences) has terminated, the symptoms do not persist for more than
an additional 6 months.

[140]     She explained the difference between an adjustment disorder
and other potential diagnoses:

The differential diagnosis
includes a major depressive episode and generalized anxiety disorder. However,
his anxiety and depressive symptoms are very closely related to his pain
symptoms and that [sic] there is a significant degree of responsiveness
to his mood, by which I mean that when his pain is lower, his mood and anxiety
levels improve. This is less likely to occur with major depression and
generalized anxiety than with an adjustment disorder and the latter is therefore
my preferred diagnosis.

[141]     She also expressed the view that Mr. Williams’
anxiety levels are, at times, very distressing, that he is highly anxious about
his pain and that he has become consumed by his pain symptoms. She expressed
the opinion that "it is quite probable that he suffers from somatic
symptom disorder with predominant pain". The DSM–5 diagnostic criteria for this condition are:

A.         One or more somatic
symptoms that are distressing or result in significant disruption of daily
life.

B.         Excessive thoughts,
feelings, or behaviours related to the somatic symptoms or associated health
concerns as manifested by at least one of the following:

a.         Disproportionate
and persistent thoughts about the seriousness of one’s symptoms.

b.         Persistently high
level of anxiety about health or symptoms.

c.         Excessive time and
energy devoted to these symptoms or health concerns.

C.        Although any one
somatic symptom may not be continuously present, the state of being symptomatic
is persistent (typically more than six months).

[142]     Finally, in Dr. Smith’s opinion it is likely that
Mr. Williams’ high levels of anxiety have heightened his pain and that his
depression has also likely increased his perception of pain and decreased his
ability to tolerate it.

[143]     In cross-examination, Dr. Smith clarified that Mr. Williams’
psychological symptoms have waxed and waned and, in her opinion, this has
occurred in association with the level of his optimism about his pain. She said
that the stressor, in Mr. Williams’ case, is pain, and the failure of the
treatments that he hoped would resolve the pain triggers the symptoms.

[144]     In terms of causation, Dr. Smith expressed the
following opinion:

If I assume that Mr. Williams’
chronic jaw, neck, back and shoulder pain were caused by the motor vehicle
accident of April 4, 2010 and that because of the symptoms he has been unable
to return to his former job, then it is in my opinion likely that the
adjustment disorder with mixed anxiety and depressed mood were also caused by
this accident.

The symptoms of somatic
symptom disorder again appear to have developed shortly after the motor vehicle
accident of April 4, 2010, largely in response to the combination of soft
tissue injuries and significant anxiety. In my opinion it’s unlikely that the
somatic symptom disorder would have developed in the absence of the soft tissue
injuries, which I have assumed were caused by the motor vehicle accident of
April 4, 2010.

[145]     Dr. Smith addressed what she referred to as Mr. Williams
"prior experience of transient depressive symptoms in 2009/2010". She
said these symptoms suggest that Mr. Williams was emotionally vulnerable
before the April 4, 2010 accident but "there is no reason to believe that Mr. Williams
would have gone on to develop symptoms of depression and anxiety had he not
suffered soft-tissue injuries and developed chronic pain". She also
addressed the subsequent accidents that occurred on August 5, 2010 and November
29, 2010, and the incident in the bar in January 2011. In her view it is unlikely
that Mr. Williams’ psychological conditions were significantly affected by
any of these events because they did not result in any sustained worsening of
his symptoms.

[146]     In Dr. Smith’s opinion, it is likely that Mr. Williams’
chronic pain is impairing his ability to work, not only in physically-demanding
jobs, but also in sedentary jobs, because of its impact on his ability to
sustain focus and think clearly. In her opinion "Mr. Williams’
depressive and anxiety symptoms are now having a very significant impact on his
day-to-day functioning including his ability to look for work and to function
in the workplace" and that "the significant depressive and anxiety
symptoms are currently playing a major role in Mr. Williams’ ongoing disability".

[147]     Dr. Smith’s prognosis is that Mr. Williams’ psychological
conditions are unlikely to improve while the chronic pain, particularly the
pain in his jaw, is ongoing. In conclusion, she stated:

Mr. Williams has now
experienced at least four years of significant depressive and anxiety symptoms.
The longer such symptoms persist, the more deeply entrenched they become and
the harder they become to treat. Consequently even if the factors that have
fueled the adjustment disorder improve substantially, it is unlikely that Mr. Williams
will experience a full remission of depressive and anxiety symptoms. It is also
likely that he will remain very vulnerable to developing significant depressive
and anxiety symptoms in the future particularly at times of perceived stress.

[148]     The defendant submits that Dr. Smith’s evidence
should be given little weight because she was unaware that Dr. Dodds had
characterized Mr. Williams’ pre-accident depressive episode as a "major
depression". I disagree. Although she did not have access to the medical
legal report in which Dr. Dodds characterized the prior episode as "major",
she did have Dr. Dodds’ clinical notes. In cross-examination, she confirmed her assessment of the symptoms as low
grade and transient, and explained that her opinion is based on the symptoms recorded
in the clinical records, not Dr. Dodds’ interpretation of them. Given her
significantly greater expertise, this is reasonable.

[149]     The defendant submits that Dr. Smith demonstrated
bias in favour of Mr. Williams by minimizing the significance of Mr. Williams
stopping the Sertraline, while at the same time recommending in her report that
his dosage of Sertraline be maximized. At trial, she explained that anti-depressants
do not work for all patients. She wrote in her report that it "might be
helpful to try and maximize the dosage" but that some people find that
higher doses "actually aggravate anxiety and should this occur,
consideration should be given to switching to a drug less likely to do this
such as Cipralex". Dr. Smith explained that anti-depressants are worth
trying but are not consistently effective, and if a particular medication is
causing side effects it is reasonable for a patient to stop taking it.  Thus,
it was not inconsistent for her to both minimize the significance of Mr. Williams
stopping the Sertraline and also recommend that he try a higher dose.

[150]     The defendant submits that Dr. Smith demonstrated
bias in favour of Mr. Williams by refusing to acknowledge that the
subsequent events (the motor vehicle accidents in August 2010 and November 2010
and the January 2011 assault) were also stressors that could have caused Mr. Williams’
psychological conditions. However, I accepted her explanation that it is unlikely that his psychological conditions were
significantly affected by any of these events because they did not result in
any sustained worsening of his physical symptoms. In her view, it is the
ongoing chronic pain and worry about his inability
to work that fuels the psychological disorders.

[151]     The
defendant also submits that Mr. Williams’ anxiety could be caused by his
marijuana use. Dr. Smith acknowledged that marijuana use can cause
anxiety, but the only evidence of Mr. Williams’ use of marijuana was his
own testimony that he tried it for a few months, some time ago, in an attempt
to reduce his pain. He did not like it and stopped using it. There was no
evidence that historical marijuna use, over a limited period, could cause or
contribute to long-lasting and ongoing anxiety.

[152]     I have no
reason not to accept Dr. Smith’s evidence. She is a well-qualified
psychiatrist and she had a thorough understanding of Mr. Williams’ medical
history and current complaints. I found her to be reasonable and responsive in
her testimony.

[153]     I have no
difficulty concluding, on a balance of probabilities, that Mr. Williams is
suffering from the significant psychological symptoms he described. For the
reasons already expressed concerning his credibility generally, I accept his
evidence about his increasing inability to cope, his depressive symptoms, his
sleeplessness due to pain, his feelings of hopelessness, and his anxiety about
the future. He has been diagnosed by Dr. Smith as suffering from
adjustment disorder with mixed anxiety and depressive mood as well as a somatic
disorder that enhances his experience of pain and decreases his tolerance of it.
There is no contrary expert evidence that calls that diagnosis into question.

[154]     A defendant
is liable for psychiatric or psychological injuries that are consequential to
the physical injury for which the defendant is responsible: Hussack v.
Chilliwack School District No. 33, 2011 BCCA 258 at para. 74. I find
that Mr. Williams’ psychological conditions are consequential to the
physical injuries Mr. Williams suffered in the accident and the chronic
pain and functional disability that have resulted.

Was there a measurable risk that Mr. Williams would have been detrimentally
affected regardless of the April 2010 accident?

[155]     The
fundamental principle in assessing tort damages is that the quantum should be
that which is required to place the plaintiff in his original position; that
is, the position he would have been in absent the defendant’s negligence: Athey,
at para. 32-35. If there is a measurable risk that a pre-existing
condition would have detrimentally affected Mr. Williams even without the
defendant’s negligence, that risk must be taken into account in reducing the
damages award. However, where no such measurable risk is established, the fact
that a pre-existing condition may have made Mr. Williams more vulnerable
to sustaining the injury caused by the defendant’s negligence will not serve to
reduce the damage award.

[156]     Unrelated intervening events may be taken into account
in the same way as pre-existing conditions. If there is a measurable risk that an
unrelated intervening event would have affected Mr. Williams’ original
position adversely irrespective of the defendant’s negligence, it may be appropriate
to reduce the quantum of the defendant’s liability accordingly: Athey,
at paras. 31-32.

[157]     Measurable risks need not be proved on a balance of
probabilities.  Rather, as with any hypothetical event, they are given weight
in the assessment of damages according to their relative likelihood: Athey,
para. 27.

[158]     As already
discussed, the pain and suffering and other damage resulting directly from the
orthodontic treatment was caused, in a legal sense, by the accident. However,
in assessing Mr. Williams’ damages, it is necessary to determine whether
there was a realistic possibility that he would have proceeded with the
orthodontic treatment in any event. If so, Mr. Williams would have
suffered the pain and discomfort caused directly by the treatment as well as
its cost, even if the accident had not occurred.

[159]     Mr. Williams
was actively considering the orthodontic treatment prior to the accident. He
had the money to proceed with it and Dr. Maplethorp was in the process of
developing her three options. While the evidence does not establish, on a
balance of probabilities, that he would have proceeded with the treatment
irrespective of the development of the TMJ disorder, this is a hypothetical
question that attracts a lower standard of proof. Having considered all of the
evidence, it is my view that there was a realistic possibility that Mr. Williams
would have proceeded with the treatment in any event.

[160]     As just
noted, Dr. Maplethorp had three options under consideration, one of which
was doing nothing. Mr. Williams testified that he does not recall whether
the options were discussed with him prior to the accident. He also said he
remained undecided about proceeding with any treatment. On the evidence
available, I can do no better than to assess the likelihood of Mr. Williams
proceeding with the braces and surgery option, even if the April 2010 accident
had not occurred, at 33%. In the result, his claim for special damages
associated with the cost of the treatment must be reduced by 33% to reflect
this contingency. However, the pain and suffering directly attributable to the
treatment itself is only a part of the total pain and suffering Mr. Williams
has experienced and will continue to experience, likely for the rest of his
life. In all the circumstances, I conclude that his damages for pain and
suffering should be reduced by 10% to reflect this contingency.

[161]     Mr. Williams
did not miss any work at the Golden Ears Pub following the teeth extraction or
the installation of the braces; however, given his testimony of increased pain
and swelling following the surgery in January 2013, there is a realistic
possibility that, in the absence of the accident, he would have missed some
work after the surgeries in January 2013 and March 2014. He missed approximately
six weeks of work following his ear surgery. In the circumstances, I find that if
he proceeded with the orthodontic treatment irrespective of the accident, he
would have missed about six weeks work after each jaw surgery, which amounts to
a total of three months. His past wage loss claim must be reduced to reflect this
contingency.

[162]     The next
question is whether there is a realistic possibility that Mr. Williams
would have developed chronic back, neck and shoulder pain, TMJ disorder and/or
any of the psychological conditions, in the absence of the April 2010 accident.

[163]     In Dr. Adrian’s
opinion, Mr. Williams was unlikely to have developed persistent, regularly
occurring and physically limiting pain in his back, neck and shoulder areas in
the absence of the April 2010 accident. Dr. Locht did not express a
contrary view. In the circumstances, the evidence would not support the
conclusion that there was a realistic possibility that Mr. Williams would
have suffered chronic back, neck and shoulder pain in the absence of the April
2010 accident.

[164]     The
defendant submits that there was a realistic possibility that Mr. Williams
would have developed TMJ disorder in any event, relying on the fact that Dr. Courtemanche
agreed, under cross-examination with the following proposition:

The other motor vehicle
accidents, the significant abnormalities in both jaw joints, changing the
dental occlusion and surgery of the upper and lower jaws are all factors that
may contribute to strain of the jaw muscles and jaw joints.

[165]     Dr. Courtemanche’s
acknowledgement that these factors might "contribute to strain of the jaw
muscles and jaw joints" does not, on its own, establish a realistic
possibility that Mr. Williams would have developed TMJ disorder irrespective
of the April 2010 accident. However, in earlier testimony, Dr. Courtemanche
explained that Mr. Williams’ congenital abnormality left him more
vulnerable to injury as a result of trauma and that the orthodontic treatment,
on its own, could have constituted trauma that could have led to the TMJ
disorder.

[166]     As a
result, I am persuaded that there was a realistic possibility of Mr. Williams
developing TMJ disorder if he underwent the orthodontic treatment in any event
the accident. I assess the likelihood of Mr. Williams developing TMJ
disorder as a result of the orthodontic treatment at 50%, but I have already
found there was only a 33% chance that Mr. Williams would have undergone
the orthodontic treatment in the absence of the April 2010 accident. In
addition, the jaw pain, while significant, is only part of Mr. Williams’
overall pain and suffering. In all of the circumstances, I would adjust his
overall damages for all pain and suffering by another 10% to reflect this
contingency.

[167]     Mr. Williams
did not have the first jaw surgery until January 2013. It is very difficult, on
the evidence, to predict when he might have developed TMJ disorder, in the
absence of the accident, as a result of the orthodontic treatment. The most I
can say is that it likely would have progressed gradually, as the increased pressure
caused gradual degeneration in the TM joints. In the circumstances, it would
not be appropriate, in my view, to reflect this contingency in assessing Mr. Williams’
past wage loss; however, I would reduce his loss of future income earning
capacity claim by 10% to reflect the possibility of this contingency occurring
and progressing gradually.

[168]     In Dr. Smith’s
opinion, Mr. Williams’ "prior experience of transient depressive
symptoms in 2009/2010" indicates that he was emotionally vulnerable before
the April 4, 2010 accident but, in her view, "there is no reason to
believe that Mr. Williams would have gone on to develop symptoms of
depression and anxiety had he not suffered soft-tissue injuries and developed
chronic pain". There is no contrary evidence. However, I have found that
there is a realistic possibility that Mr. Williams would have undergone
the orthodontic treatment in the absence of the accident, and had he done so,
there is a realistic possibility that he would then have developed chronic TMJ
disorder. Having seen and heard him testify, it is apparent that the primary
trigger of Mr. Williams’ depressive symptons and anxiety is the
excruciating and chronic jaw pain. When considered with his pre-existing emotional
vulnerability, there is a realistic possibility that if Mr. Williams
underwent the orthodontic treatment and if that resulted in chronic TMJ
disorder he would have gone on to develop the physiological conditions from which
he now suffers. The likelihood of this occurring is very difficult to assess,
particularly as each contingency is layered onto the ones that come before. In
the circumstances, while this is a realistic possibility, I conclude that the
likelihood of it occurring is small. I would reduce his damages for pain and
suffering and loss of future income earning capacity by another 5% to reflect
this contingency.

Has Mr. Williams failed to mitigate?

[169]     In order
to establish that a plaintiff has failed to mitigate by not pursuing
recommended treatment, the defendant must prove, on a balance of probabilities,
that the plaintiff acted unreasonably and also the extent to which the
plaintiff’s damages would have been reduced had the plaintiff undergone the
treatment in question: Chiu v. Chiu, 2002 BCCA 618 at para. 57.
In Gregory v. ICBC, 2011 BCCA 144, Madam Justice Garson expressed the
test at para 56:

I would describe the
mitigation test as a subjective/objective test. That is whether the reasonable
patient, having all the information at hand that the plaintiff possessed, ought
reasonably to have undergone the recommended treatment. The second aspect of
the test is "the extent, if any, to which the plaintiff’s damages would
have been reduced" by that treatment. [Emphasis in original.]

[170]     The defendant submits that Mr. Williams failed to
mitigate by choosing to stop taking the Sertraline that had been prescribed by Dr. Dodds
and by missing some physiotherapy appointments. The defendant says that had Mr. Williams
taken all prescribed medications and attended all physiotherapy sessions, his
damages would have been reduced.

[171]     As
already noted, Mr. Williams reported depressive symptoms to Dr. Dodds
in late June 2010, Dr. Dodds prescribed Sertraline and, by July 9, 2010, Mr. Williams
reported some improvement. Without discussing it with Dr. Dodds, Mr. Williams
stopped taking the Sertraline although it is not clear when. He did not report
depressive symptoms to Dr. Dodds again for over a year, until the fall of
2011. According to Dr. Dodds, the cessation
of the Sertraline "resulted in dramatically increased fatigue, terminal
insomnia, nonrestorative sleep and a substantial increase in pain". In the
fall of 2011, Dr. Dodds again prescribed Sertraline and also Gabapentin. The
Sertraline dosage was increased in November 2011. By January 2012, Mr. Williams
had again stopped the Sertraline on his own. He was started on a different anti-depressant
called Trazodone in January 2012, and the Trazadone dosage was increased in
April 2012. It is not clear how long Mr. Williams stayed on the Trazodone.
In September 2014, Dr. Dodds again prescribed Sertraline and also Ativan.

[172]     The first
question is whether it was unreasonable for Mr. Williams to cease taking
the Sertraline, sometime after July 2010 and again in January 2012. Mr. Williams
testified that he stopped taking it because of its side effects.  He said it
left him feeling numb and it was not treating the chronic pain, which he
considered to be the source of his mood symptoms.  Mr. Williams said that
when Dr. Dodds first prescribed Sertraline, he also advised Mr. Williams
of alternative therapies such as improving his diet, exercising and increasing
exposure to sunlight. He said he was under the impression that Dr. Dodds
was leaving it up to him to do what he thought worked best and he opted for the
alternatives.

[173]     The
defendant submits that this testimony was inconsistent with a note on Dr. Dodds’
file to the effect Mr. Williams had no side effects from Sertraline. I
disagree. The fact that Dr. Dodds noted "no side-effects" on one
occasion does not mean Mr. Williams never had side effects.

[174]     Dr. Dodds
acknowledged that Mr. Williams’ depressive symptoms worsened in the fall
of 2011, after he had stopped taking Sertraline, but he also said that it is
reasonable for a patient to discontinue medication if the negative side effects
outweigh the benefits. While Dr. Dodds agreed that Mr. Williams’
failure to take the medication was "non-compliant", he was not asked
if such non-compliance was unreasonable. Further, when Mr. Williams again
stopped taking the Sertraline, a few months later, Dr. Dodds did not renew
the Sertraline prescription. Instead he prescribed Trazodone. If Dr. Dodds
thought it was unreasonable for Mr. Williams to stop taking Sertraline it
is more likely he would have prescribed more Sertraline rather than switching
to Trazodone.

[175]     It is
apparent that Mr. Williams’ psychological symptoms responded favourably to
the Sertraline and it may be that some of the psychological symptoms he
experienced would have diminished if he had stayed on the Sertraline. However,
those benefits may well have been outweighed by the numbing side effects. Mr. Williams
has demonstrated a willingness to undergo significant and expensive treatments
including physiotherapy, a variety of medications, acupuncture, Botox
injections, and very painful and invasive orthodontic treatment in an effort to
get better. I am satisfied that he would have continued to take the Sertraline
if the benefits outweighed the side effects. In all the circumstances, I am not
persuaded that Mr. Williams acted unreasonably when he stopped taking the Sertraline.

[176]     I am also
not persuaded that Mr. Williams failed to mitigate by missing a few
physiotherapy sessions. In the years since the accident, he has attended over
100 physiotherapy sessions. I accept his evidence that when not attending structured
sessions, he exercises at home following routines he learned from his
physiotherapists. The defendant points to a few occasions, less than ten over
the five years since the accident, when Mr. Williams missed a scheduled
session. He explained that he is sometimes unable to sleep because of the pain
and on a few occasions he slept through his alarm and missed a scheduled
physiotherapy session. On another occasion he missed a session to attend a
memorial service for a classmate. Even if this could be characterized as
unreasonable, there was no evidence that his damages would have been reduced
had he attended every single scheduled physiotherapy session.

[177]     For these
reasons, the defendant has not established a mitigation defence.

Non-pecuniary Damages

[178]     An award of non-pecuniary damages is intended to
compensate for pain and suffering, loss of enjoyment of life, and/or loss of
amenities. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave
to appeal ref’d [2006] S.C.C.A. No. 100, the Court of Appeal set out a
non-exhaustive list of factors to be considered in determining the amount of
non-pecuniary damages to award. That list includes the age of the plaintiff,
the nature of the injury, the severity and duration of the pain, the extent of
disability, the existence of emotional suffering, the loss or impairment of
life, the impairment of relationships, the impairment of physical and mental
abilities, and the loss of lifestyle. All
of these factors come into play in determining non-pecuniary damages in Mr. Williams’ case.

[179]     Mr. Williams
is a young man. He was 20 years old when the accident occurred and is now 25
years old. Prior to the accident, he was healthy, social, energetic and
physically active. It is apparent from the lay witnesses that he was a
cheerful, happy, outgoing person who enjoyed life and had many friends. He
enjoyed playing soccer, and going to movies and sporting events with his
father. He was a leader, socially, in his group of friends. His work was very
important to him. He worked hard in a physically-demanding job, and had earned
the respect of his colleagues. He had a saved $45,000, a significant amount of
money for such a young man. He intended to use that money to buy a house. He
was on the way to establishing himself in a career that likely would have
provided him with the secure middle-class lifestyle that was his goal.

[180]     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.

[190]     Counsel
for Mr. Williams emphasized the comments of Kirkpatrick J.A. in Stapley
to the effect that the amount of an award for non-pecuniary damages does not
depend only on the seriousness of the injury but on an appreciation of the
actual loss suffered by the plaintiff in the circumstances of the specific case.
He submits that Mr. Williams’ loss is profound and that the authorities
support an award in the range of $150,000 to $175,000.

[191]     Mr. Williams
relies on three cases concerning plaintiffs who suffered a TMJ injury together
with soft-tissue injuries and/or psychological injuries. In those cases,
non-pecuniary damages of between $100,000 and $120,000 were awarded (before any
adjustment for inflation). Counsel for Mr. Williams also referred to Felix
v. Hearne, 2011 BCSC 1236. In that case, the plaintiff did not suffer a TMJ
injury but she did suffer from multiple injuries, including soft-tissue
injuries that left her with chronic pain and mood disorders. She was awarded
non-pecuniary damages of $200,000.

[192]    
Counsel for the defendant submits that the authorities support an
award in the range of $45,000 to $60,000. The authorities
relied upon by the defendant all involved plaintiffs who had suffered TMJ
injuries. However, the impact of the injuries on the lives of those plaintiffs was
much less profound than the impact on Mr. Williams’ life.

[193]    
In Daitol v.
Chan, 2012 BCSC 209, the plaintiff was awarded non-pecuniary damages of
$60,000. She suffered soft-tissue injuries to her upper back and neck as well
as chest pain from the seatbelt, all of which resolved gradually after the
accident. The lingering issues were knee pain and TMJ problems. However, the
plaintiff missed only eight days of work and there was no medical evidence
suggesting that the TMJ problems would affect her ability to work in the
future. The greatest interference with her enjoyment of life was caused by the
knee pain and, given her relatively inactive pre-accident lifestyle, even that
did not interfere with most of the activities she previously enjoyed.

[194]    
In Liu v.
Bourjet, 2014 BCSC 291, one of the plaintiffs, Ms. Cheng, was awarded
non-pecuniary damages of $60,000. The trial judge found that Ms. Cheng had
suffered facial bruising that resolved within three to four months, chest pain
that resolved within a few months, and soft-tissue injuries to her neck and
back that had largely resolved within a few months. He concluded that the TMJ
problems that surfaced three months after the accident were caused by the
accident, but the ongoing symptoms were found to be relatively minor and did
not result in any disability.

[195]    
In Gupta v. Doe,
2015 BCSC 608, the plaintiff was awarded non-pecuniary damages of $45,000. In
this case the plaintiff claimed to have suffered soft-tissue injuries to her
back, left shoulder and neck, injuries to her chest, and jaw pain. The trial
judge found her to have exaggerated the extent of the pain and to have
otherwise given untruthful evidence. He concluded that her injuries did not
significantly impact her ability to work.

[196]     In my
view, the cases referred to by Mr. Williams’ counsel concern plaintiffs
whose conditions have impacted their lives to an extent that more closely
resembles Mr. Williams’ situation. Of all the cases relied upon by Mr. Williams
the most similar, in terms of the factors relevant to non-pecuniary damages,
are Hoff v. Joncas, (1996), 55 B.C.L.R. (3d) 10 (S.C.), aff’d (1997) 43
B.C.L.R. (3d) 203 (C.A.) and Kokkinis v. Hall, [1994] B.C.J. No. 1715
(S.C.), damages award aff’d (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[197]     Hoff concerned
a 57-year-old plaintiff who suffered moderately severe neck, upper back and
lower back strains, moderately severe contusions to the left shoulder, hips,
calf and shin, and who then developed headaches and bilateral TMJ disorder as
well as psychological conditions. The headaches, TMJ pain, neck pain, low back
pain and pain in the left leg persisted, as did the psychological conditions.
The plaintiff relied on regular analgesic injections for the TMJ pain which
were themselves very painful. The TMJ problem was found to be very serious and likely
to persist throughout the plaintiff’s lifetime. Mr. Justice Stewart
awarded her non-pecuniary damages of $100,000, which would equate to approximately
$143,000 in 2015.

[198]     Kokkinis
concerned a 33-year-old plaintiff who suffered a significant TMJ injury as well
as psychological injuries which had a devastating impact on her life. At the
time of trial she remained unable to work but the trial judge, Stewart J.
again, found it highly probable that she would return to work within a few
years. He awarded her non-pecuniary damages of $100,000 which would equate to approximately
$149,000 in 2015.

[199]    
Awards of damages
in other cases provide a guideline only. While the most similar cases are Hoff
and Kokkinis, neither is a completely satisfactory point of
reference. Both plaintiffs in those cases were older than Mr. Williams and,
as such, Mr. Williams’ circumstances indicate a greater award.

[200]    
Felix concerned a 44-year-old plaintiff who did not suffer
a TMJ injury but suffered very significant multiple injuries including ongoing
neck and back pain and related chronic headaches, loss of function in her left
wrist, injury to her left shoulder and ankle and pervasive emotional disorders
that left her unable to work. Mr. Justice Grist awarded non-pecuniary damages
of $200,000. The impact of Ms. Felix’s
injuries on her life was similar to the impact of Mr. Williams’ injuries
on his life but, in my view, there is more optimism for improvement in Mr. Williams’
case than there was for Ms. Felix. While the evidence does not support the
conclusion that there is a substantial possibility of a permanent lessening of
his pain, it does establish a realistic possibility of improvement in Mr. Williams’
ability to cope and, therefore, improvement in his functionality and enjoyment
of life.

[201]     Mr. Williams’
treating physicians and the other medical experts have not given up hope. As
already discussed, Dr. Courtemanche remains cautiously optimistic that Mr. Williams
could experience some temporary alleviation of the jaw pain if he undergoes jaw
joint surgery. Dr. Dodds and Dr. Adrian recommend that he attend a
pain clinic for counselling to help him develop pain management and coping
strategies. Dr. Dodds and Dr. Smith recommend psychological
counselling. Dr. Adrian recommends vocational counselling and Dr. Smith
recommends work with an occupational therapist. In that regard, Dr. Smith
specifically recommends that the occupational therapist help Mr. Williams
secure a volunteer position that would force him to interact with other people,
achieve goals, and build confidence, with the view of preparing him to seek
paid employment. These physicians would not have made these recommendations if
they did not think there was a realistic possibility that that they would
result in a material improvement in Mr. Williams’ quality of life.

[202]     Mr. Williams
himself has demonstrated determination in the face of barriers. When he failed
to succeed in a conventional academic environment, he displayed a maturity
beyond his then age of about 15 years and conceived a plan for his future
success. The close friendships he has formed and maintained and the respect he
has earned from his coworkers are a testament to his character. While I accept
that the medical evidence establishes that he will almost certainly continue to
struggle with pain, I also find that with the professional assistance of a pain
clinic and vocational and psychological counselling there is a realistic
possibility that he will regain some functionality, even if the pain persists.

[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.

Past Loss of Income Earning Capacity

[204]     In Smith
v. Knudsen, 2004 BCCA 613, the Court of Appeal confirmed the approach to be
taken in determining whether a plaintiff has established a claim to past loss
of earning capacity.  A plaintiff must prove on a balance of probabilities that
an injury has caused an impairment to his earning capacity that has resulted in
a pecuniary loss.

[205]     A claim for past loss of income earning capacity is
based on the value of the work that the injured plaintiff would have performed
but was unable to perform because of the injury: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 30. A common method of assessing this value is to
project the net income the plaintiff would have earned in the period between
the accident and the trial had the accident not occurred, taking into account
all realistic contingencies, and to award the difference between that projected
net income and the actual net income the plaintiff did earn or was capable of
earning during that period.  Hypothetical events, including what the plaintiff
would have earned in the absence of the accident, need not be proved on a
balance of probabilities, but rather are given weight based on their
likelihood: Smith at para. 29.

[206]     Mr. Williams submits that he was incapable of
working at all until he secured the bartending job at the invitation of Mr. Del
Valle and, when he left that job about a year later, he was incapable of
working at all. He says that but for the accident he would have continued at
Tireland where his annual salary was $35,700. He submits that he would likely
have earned raises in pay above the average British Columbia worker, as he had
proven himself to be a consistent, above-average employee. His Tireland
location was closed in 2013, but he says he would have been kept on at another
location or would have found similar employment at similar compensation.

[207]     Mr. Peever, the economist who was retained by Mr. Williams
and who prepared reports and testified at the trial, estimated Mr. Williams’
past wage loss (net of taxes and EI premiums) at $157,072, on the assumption
that Mr. Williams would have continued to work at Tireland and would have
earned average raises. This estimate accounted for the income Mr. Williams
did earn from the bartending job. Mr. Williams submits that his loss
should be assessed at $175,000 (net of taxes and EI premiums) to reflect the
significant likelihood that he would have earned greater than average raises
due to his greater than average historical performance and his ambition.

[208]     The defendant admits that Mr. Williams was
incapable of working until December 2010, when he started the bartending job.
However, the defendant submits that his performance in that job, which required
him to work up to seven days per week at times, demonstrates that thereafter he
was competitively employable. The defendant submits that when Mr. Williams
quit the bartending job in December 2011, he unreasonably failed to pursue
alternative employment. Mr. Williams briefly looked for another bartending
job and may have applied for a job at a casino but his efforts were clearly
minimal. The defendant submits Mr. Williams should have applied for work
at a fast food restaurant, such as McDonald’s, and he should have asked
Tireland to accommodate him by providing him with a non-physical job. Accordingly,
the defendant submits any claim for past wage loss should be limited to the
period up to December 2010.

[209]     The defendant also submits that Mr. Williams
would have missed several weeks of work in August 2010 when he had a minor, unrelated
surgery and was involved in the August 2010 accident. On this basis, the
defendant submits that Mr. Williams’ past income loss should be assessed
at $15,618.75, calculated as follows:

·      
$2,975 per month (Tireland monthly
income) multiplied by the eight months between April and November 2010;

·      
less $2,975 to reflect one month
off in August 2010; and

·      
less 25%, although the basis for
this particular reduction was not made clear.

[210]     In my
view, there are several flaws in the defendant’s analysis. Before addressing
those flaws, I note that the defendant does not suggest Mr. Williams
unreasonably quit the bartending job. It was apparent from his evidence and the
evidence of his coworkers, Mr. Del Valle and Mr. Bruinsma, that the manager
who took over after Mr. Del Valle left treated Mr. Williams very poorly
and that, as a result, the situation had become intolerable.

[211]     The
defendant’s position does not reflect the reality of the bartending job.
Although Mr. Del Valle testified that there may have been one or two times
when Mr. Williams worked seven days in a row, having considered the whole
of the evidence it is apparent that he was working on average only two to three
shifts per week. That was Mr. Williams’ testimony and it was corroborated
by his tax return for 2011 which shows income of $9,800. At $9.00 per hour this
translates into approximately 2.5 shifts per week. Further, I accept Mr. Williams’
evidence about the difference in the demands of the bartending job and the
demands of working at a fast food restaurant. He explained that his role at the
Golden Ears Pub was limited to making drinks for the servers. He did not even
have to interact with customers. A fast food job would have required him to
work at a much faster pace and to maintain almost constant and upbeat contact
with customers. Mr. Lennox, who was Mr. Williams’ supervisor at
Tireland, testified that there were no light duty jobs available at Tireland. Finally,
the defendant’s analysis also fails to reflect the fact that by the fall of
2011, when Mr. Williams left the Golden Ears Pub job, his depressive
symptoms and anxiety were manifest and were significantly interfering with his
ability to cope. In addition, by early 2012, Mr. Williams’ pain was so
intense that Dr. Dodds was suggesting a pain medication stronger than
Percocet and they discussed switching to long-acting morphine.

[212]     Having
considered all of the evidence, I am satisfied, on a balance of probabilities,
that since the accident, Mr. Williams has suffered from pain in his neck,
back, shoulders and jaw that has prevented him from engaging in physical work,
including his job at Tireland. I am also satisfied, on a balance of
probabilities, that, by late 2011, these injuries had triggered chronic pain
and psychological conditions that prevented Mr. Williams from being able
to cope with the demands of any job. It must be remembered that Mr. Williams
got the bartending job because Mr. Del Valle sought him out. I am not
persuaded that there is any realistic possibility that, after quitting that
job, Mr. Williams could have found a similar job; that is, a part-time job
with no physical demands and very few other demands, working with a manager who
knew him and liked him, and was therefore likely to be accommodating.

[213]     Given Mr. Williams’ 18-month history of
employment at Tireland and his testimony that he planned to stay there and make
the tire business his career, it is my view that the projected net income
approach to assessing his damages for past loss of income earning capacity is
appropriate.

[214]     While I
accept that Mr. Williams was an above-average employee, I am not persuaded
that the evidence supports the conclusion that, in the five years prior to the
trial, he would likely have received promotions or performance-based raises that
would have translated into raises above the average worker. There is no
evidence that he received above-average raises while employed at Tireland. In
my view, the starting point in assessing his damages for loss of past income
earning capacity is Mr. Peever’s estimate of $157,072. However, in my
view, that figure does not reflect the following contingencies:

(a)      Mr. Williams likely would have missed some work in August
2010 as a result of the unrelated minor surgery and the August 2010 accident;

(b)      Mr. Williams likely would have missed some work in November
2010, as a result of the November 2010 accident;

(c)      Mr. Williams likely would have missed some work in August
2011 when he had surgery on his nose;

(d)      as already discussed, I have found that there is a 33% chance
that Mr. Williams would have undergone the orthodontic treatment in any
event and, if he did so, he would have missed approximately six weeks of work
following each of the two jaw surgeries; and

(e)      the Tireland location where he worked closed in 2013 and,
although it is apparent from Mr. Lennox’s testimony that there may have
been an opportunity for work at another Tireland location, there is also a
realistic possibility that Mr. Williams would have faced some period of
unemployment following the closure of Tireland.

[215]     I consider
that the combined effect of these contingencies reduces Mr. Williams claim
for past income loss by six months. In the circumstances I think it is
appropriate to assess his past wage loss at $157,072, less $16,000 (which
approximates Mr. Williams’ net income from Tireland for six months) to reflect
these contingencies, for a total net past wage loss of $141,072.

Future Loss of Income Earning Capacity

[216]     To establish a claim for future loss of income earning
capacity, a plaintiff must first prove a real and substantial possibility of a
future event leading to a loss of income, as opposed to a speculative loss: Perren
v. Lalari, 2010 BCCA 140 at para. 32. The onus on the plaintiff is not
heavy but must nonetheless be met: Kim v. Morier, 2014 BCCA 63 at para. 7.

[217]     If the plaintiff discharges that burden, then the loss
must be assessed, taking into account all realistic positive and negative
contingencies. The assessment may employ what has been referred to as an "earnings
approach" or a "capital asset approach": Schenker v. Scott,
2014 BCCA 203 at paras. 50-51; Morgan v. Galbraith, 2013 BCCA 305
at para. 53; and Perren at para. 32.

[218]     The earnings approach is generally appropriate where
the plaintiff has some earnings history and where the court can reasonably
estimate what his/her likely future earning capacity will be: Perren, para. 32.
This approach typically involves an assessment of the plaintiff’s estimated
annual income loss multiplied by the remaining years of work and then
discounted to reflect current value, or alternatively, awarding the plaintiff’s
entire annual income for a year or two: Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) at para. 43; and Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233. While there is a more
mathematical component to this approach, the assessment of damages is still a
matter of judgment, not mere calculation, and all realistic contingencies must
be taken into account.

[219]     The capital asset approach, which is typically used in
cases in which the plaintiff has no clear earnings history, involves
consideration of a number of factors such as whether the plaintiff
has been rendered less capable overall of
earning income from all types of employment, is less marketable or attractive as a potential
employee,
has lost the ability to take advantage of
all job opportunities that might otherwise have been open, and is less valuable
to himself as a person capable of earning income in a competitive labour
market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8;
and Morgan, paras. 53 and 56.

[220]     Given the
medical evidence, I have no difficulty concluding that Mr. Williams’
injuries have impaired his earning capacity and that this will continue to
result in a pecuniary loss.

[221]     I accept Dr. Adrian’s
evidence that Mr. Williams’ mechanical neck and back pain and his soft-tissue
shoulder pain is permanent, that he will most probably continue to experience
difficulty performing physical tasks, and that he is permanently disabled from
employment that involves physical tasks as core components. I accept Dr. Courtemanche’s
evidence that Mr. Williams will continue to suffer chronic jaw pain,
likely for the rest of his life, even if he undergoes the jaw joint surgery and
experiences some temporary alleviation of the symptoms as a result. I also
accept Dr. Smith’s evidence that Mr. Williams’ chronic pain and
psychological conditions impair his ability to work, not only in physically-demanding
jobs, but also in sedentary jobs, because of the impact on his ability to
sustain focus and think clearly. I also accept her evidence that it is unlikely
Mr. Williams will experience a full remission of the depressive and
anxiety symptoms even if the chronic pain improves. The next step is to value the
loss, taking into account all realistic contingencies.

[222]     Mr. Williams
submits that the medical evidence establishes he will never be able to return
to a physical job and that his ability to return to any form of work is
uncertain at best due to his chronic pain and psychological conditions. He says
he lacks the aptitude for more sedentary work. His position is that there is little
or no likelihood that he will be able to rejoin the workforce and, accordingly,
his future income loss should be assessed at between $1,250,000 and $1,500,000.
This is based on the assumption that he will suffer an average annual loss of more
than $35,700 (his annual income at Tireland), and that he would have worked to
age 70 but for the injuries suffered in the car accident.

[223]     Mr. Peever’s
evidence established that an annual loss of $35,700 each year from trial to the
age of 70 has a present value of $1,169,775, applying a multiplier of $31,194
for every $1,000 of lost annual income. This multiplier has been adjusted for
survival but does not incorporate statistical allowances for other positive
contingencies, such as increases in earnings resulting from job changes,
increased hours of work or promotions, or negative contingencies, such as
decreases in earnings resulting from non-participation in the labour market,
unemployment and part-time work. Mr. Williams submits this multiplier is
appropriate because the positive and negative contingencies offset each other.

[224]     The
defendant submits that Mr. Williams has failed to prove, on a balance of
probabilities, that he is incapable of working in any capacity. The defendant
submits that he has considerable residual employability, and any pain or
psychological condition he does suffer from does not interfere with his ability
to work in a non-physical job. The defendant submits that there is no evidence
to suggest that Mr. Williams would have worked to age 70, that Mr. Williams
had no consistent pattern of earnings prior to the accident, and that his job
as a tire installer is no longer available. In the circumstances, the defendant
submits that the court should take a capital asset approach and award between
$30,000 and $40,000, or roughly one year’s income.

[225]     In my
view, the earnings approach to quantify this loss is more appropriate in Mr. Williams’
case due to his employment and earnings history, the fact that, notwithstanding
his young age, he was succeeding at his chosen career, and due to the fact that
he will almost certainly be unable to return to any form of physical employment.
If he is able to work at all, he will have to embark on an entirely different
career path.

[226]     I agree
that the positive and negative contingencies referred to by Mr. Peever
likely do offset each other, but Mr. Williams’ submission does not reflect
the additional, very realistic possibility that he will regain sufficient
functionality to permit him to retrain and succeed in a more sedentary
occupation. As already discussed, the medical evidence supports the conclusion
that this is a realistic possibility, and Mr. Williams expressed a desire
to follow Dr. Smith’s recommendation of working with an occupational
therapist with a view to re-entering the workforce. When combined with his
demonstrated determination and historical employment success, in my view, it is
highly probable that he will work in the future. The question is, when and
doing what?

[227]     Given the
likelihood that Mr. Williams will continue to suffer significant jaw pain,
the fast-food industry or any job that requires upbeat interaction with
customers is not realistic. However, the evidence does not support the
conclusion that Mr. Williams lacks aptitude for retraining that would
equip him to work in a sedentary job. His submission that he lacks options
appears to be based on nothing more than his high school grades and I am not
persuaded that his high school grades are an accurate reflection of his ability
and potential. As already noted, his high school grades actually suggest that
he has the ability to succeed academically when the proper supports are
available to him. He has already demonstrated significant industriousness and
determination. After hearing him testify, it is apparent he is a pleasant and
engaging young man. I am satisfied that with the proper supports he is likely
to learn pain management and coping strategies that will permit him to
undertake training in a new field and that he will succeed in establishing
himself in an alternative sedentary career.

[228]     It is very
difficult to predict how long that might reasonably take. Certainly, it will
take Mr. Williams longer than it would take someone who does not have the
significant physical and psychological limitations that Mr. Williams has.
Further, after retraining, it is likely to take him longer to progress in his
new field than it would take someone not living with chronic pain. In all the
circumstances, it is my view that if he diligently follows the future-care
recommendations of his physicians, he is likely to succeed in retraining and
entering the workforce in an alternative career within six years and, within 12
years, he is likely to have caught up to where he would have been, in terms of
income earning capacity, had the accident not occurred.

[229]    
I recognize that the process of valuing this loss is an
assessment and not a mathematical calculation. However, it must be reasonable
and anchored in the evidence.

[230]    
In my view, it is likely that Mr. Williams would have earned,
on average, $38,000 per year during the six-and-a-half years from the trial to
the end of 2021 and that, because of the injuries suffered in the accident, it
is likely that he will not earn any income during that period as he undergoes
treatment and pursues retraining. Based on Mr. Peever’s multiplier of $6,223
for every $1,000 of lost annual income, this loss during those six-and-a-half
years has a present value of $236,474. In my view, it is likely that Mr. Williams
would have progressed in his career and would have earned, on average, income
in the range of $50,000 per year from the beginning of 2022 to the end of 2027,
and that, because of the injuries suffered in the accident and the delay
associated with him retraining for and embarking upon a new career, it is
likely he will earn only an average income in the range of $30,000 during those
six years. This is a loss of $20,000 in each of those years. Using Mr. Peever’s
multipliers for single years (column 7 of Table 1 in his February 24, 2015
report), the present value of this loss is $103,260. The sum of the two amounts
is $339,734. From that amount, for the reasons already discussed, there must be
a reduction of 10%, or $33,973,
to account for the contingency that if Mr. Williams underwent the
orthodontic treatment, it would have triggered chronic TMJ disorder in any
event; and 5%, or $16,987, 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, the result
is $288,774, which I round up to $290,000.

[231]    
Assessing Mr. Williams’
damages for his future loss of income earning capacity does, of necessity,
reflect significant crystal-ball gazing. Assessing damages to compensate for
what will happen in the future is always a matter of prediction because the
damages must be assessed once and for all at the time of trial. This requires
me to do the best I can on the basis of what the evidence, as a whole,
indicates is likely to occur, and then adjust for the contingency that the
future may turn out differently. Of course, it is possible that, notwithstanding
the evidence that I find establishes that Mr. Williams is likely to eventually
return to the workforce, he may never do so. On the other hand, it is also
possible that he will achieve even greater success than reflected in my
analysis and that he may do so earlier. The conclusion I have reached best
reflects what the evidence, as a whole, indicates is likely to occur.

Cost of Future Care

[232]     Mr. Williams is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore him to his
pre-accident condition insofar as that is possible. The award is to be based on
what is reasonably necessary on the medical evidence, to preserve and promote his
mental and physical health: Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351 at paras. 29-30.

[233]     The test for assessing an appropriate award for the
cost of future care is an objective one based on the medical evidence. It is
twofold: first, there must be a medical justification for the cost; and second,
the claim must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.

[234]     The
medical evidence establishes the following future-care requirements for Mr. Williams:

(a)      Dr. Adrian recommends that Mr. Williams continue with
a home exercise programme and periodically engage a kinesiologist to review the
programme and modify the exercises. Records from West Coast Kinesiology
establish that the cost of a supervised session with a kinesiologist is $59. Mr. Williams
submits that a series of 12 sessions is justified for a total cost of $708,
plus a gym pass at a local recreation center which Mr. Williams submits
would cost $521 per year.

(b)      Dr. Adrian recommends counselling for chronic pain with a
goal of improving pain management and coping strategies, and reviewing
medication intake. Literature from Orion Health Services in Vancouver indicates
that attendance at a five-week pain clinic, together with a two-day intake assessment
and two months of follow up would cost $14,500.

(c)      Dr. Smith recommends psychological counselling for at least
a further 12 sessions. Mr. Williams has been attending counselling with Dr. Lingley
at a cost of $140 per hour and he submits the need for 24 sessions is
substantiated.

(d)      Dr. Smith also recommends occupational therapy with a view
to assisting Mr. Williams to re-enter the workforce. Mr. Williams
testified that occupational therapy services are available at a cost of $105
per hour. He submits a minimum of 16 hours will be required.

(e)      Dr. Adrian recommends vocational counselling. Mr. Williams
submits that vocational counselling is available at cost of $1,000.

(f)       Mr. Williams will have an ongoing need for pain
medication. His annual prescription costs are approximately $1,268. He submits
that he will require ongoing medication indefinitely and seeks the present value
of that amount, for life.

[235]     The
defendant submits that no award should be made for the cost of future care. The
defendant submits that Mr. Williams has demonstrated an unwillingness to
attend treatment on a regular basis and, therefore, no award should be made for
ongoing treatment. Further, the defendant submits that Mr. Williams did not
lead any evidence with respect to the cost of the future care he seeks, with
the exception of "passing references to a possible pain clinic". The
defendant emphasizes that Dr. Adrian testified that there are pain clinics
funded by the public system.

[236]     For
reasons already discussed in the section of this judgment addressing the
mitigation defence, I do not agree that Mr. Williams has demonstrated an
unwillingness to attend treatment. The evidence is very much to the contrary.
In addition, while Dr. Adrian testified that there are pain clinics
covered by MSP, he also testified that the wait lists render them entirely impractical.

[237]     The
evidence establishes a medical justification for each of the items claimed,
with the exception of a gym pass. Dr. Adrian specifically recommended a
home-based exercise programme.

[238]     The only
real question, in my view, is whether there is a basis in the record to
establish the cost of the treatment sought. There are documents in Mr. Williams’
book of documents that were admitted by agreement that establish the $59 per
session cost of a kinesiologist and the $14,500 cost for attendance at a pain
clinic. Mr. Williams’ special damages claim, most of which was agreed to
by the defendant, establishes Dr. Lingley’s cost of $140 per session and Mr. Williams’
annual medication cost of approximately $1,268. This leaves only the cost for
occupational therapy and vocational counselling. Mr. Williams testified
that he made inquiries concerning the cost of occupational therapy and was
quoted $105 per hour. While this is hearsay, in my view it is reliable evidence
and I accept it. There was no evidence substantiating a cost of $1,000 for
vocational counselling, but Mr. Williams’ special damages claim includes a
claim for $820 he spent on vocational counselling. This is not contested by the
defendant and, in the circumstances, I accept that the cost of vocational
counselling has been established at $820.

[239]     I award Mr. Williams
damages for the cost of future care in the amount of $62,852. This comprises 12
kinesiology sessions at $59 per session; $14,500 for a pain clinic; 24
psychological counselling sessions at $140 per session; 16 occupational
counselling sessions at $105 per hour; $820 for vocational counselling, and
annual prescription costs of $1,268 which, using Mr. Peever’s future
lifetime multiplier of $32,953 for an annual cost of $1,000, has a present
value of $41,784.

Special Damages

[240]     Mr. Williams
claims $21,370.54 in special damages, which comprises claims for medication,
physiotherapy, vocational counselling, psychological counselling and the cost
of the orthodontic treatment. The defendant agrees that he has established a
claim for $6,155.54, which defence counsel advised included all the items
claimed, with the exception of those related to the orthodontic treatment.
Again, the defendant’s position is that the orthodontic treatment was
undertaken for reasons unrelated to the accident.

[241]     I have
found that the orthodontic treatment was undertaken on the advice of Dr. Dodds,
and later Dr. Courtemanche, for the purpose of alleviating the jaw pain
and, as such, the damages flowing directly from the orthodontic treatment were
caused by the accident. However, I have also found that there was a 33%
likelihood that Mr. Williams would have proceeded with the treatment in
any event and, accordingly, that his claim for special damages associated with
the cost of the treatment must be reduced by 33% to reflect this contingency.

[242]     It appears
that the defendant calculates the cost of the orthodontic treatment at $15,215.
However, my review of Mr. Williams’ special damages claim indicates that
the cost was $15,099 ($704 paid to Dr. Ng, $7,100 paid to Dr. McDonald
and $7,295 paid to Dr. Maplethorp). In the circumstances, I award Mr. Williams
special damages of $16,388, which is comprised of 67% of $15,099 plus the
balance of the special damages claim of $6,271.54. If I have read the special
damages claim incorrectly, and the cost of the orthodontic treatment is
actually $15,215, then counsel may adjust this award accordingly.

Conclusion

[243]    
In summary, the damages awarded to
Mr. Williams are:

[244]     If the parties are unable to agree on costs, they may
arrange to speak to that issue by contacting the registry.

"Warren
J."