COURT FILE NO: CV-11-421413

DATE: 20120203

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Krystyna King

Plaintiff

• and -

Helmut W. Ragnitz

Defendant

Mark Arnold and Jonah Arnold

for the Plaintiff

No one appearing

for the Defendant

HEARD: November 22, 2011

HAINEY J.

Overview

1The plaintiff, Krystyna King (“Krystyna”) moves for default judgment for damages in the amount of $363,484.01 plus pre-judgment interest and costs for breach of contract and negligence.

2The defendant, Helmut W. Ragnitz (“Dr. Ragnitz”), who is a dental surgeon certified as a prosthodontist, was noted in default on June 15, 2011.

3The plaintiff’s claim is for injuries she sustained while a patient of the defendant between the years 2006 and 2009.

4The plaintiff filed two affidavits in support of her motion and testified before me.

Facts

5In January 2006, Krystyna initially attended Dr. Ragnitz’s dental office for a consultation. He recommended a root canal treatment of her lower left molar, a reconstruction of certain of the crowns in her mouth and the provision of a partial denture. He began his recommended treatment, and after several appointments, he unilaterally decided to change his treatment of her. His new treatment involved the extraction of all of Krystyna’s remaining teeth. He intended to restore her mouth using screwed-in upper and lower implant supported bridges.

6In May 2006, Dr. Ragnitz extracted all 20 of Krystyna’s remaining natural teeth. During her testimony on November 22, 2011, she testified that she was lacking all of her teeth for a period of six months after the extractions. Krystyna was unable to wear a partial or full denture during this six month period because Dr. Ragnitz failed to remove certain bone and tooth fragments. These fragments caused a severe and painful bone infection. Krystyna testified that during this period she was in extreme pain, suffered multiple infections as a result of the failed extractions, took numerous antibiotic prescriptions, was unable to eat solid foods, developed a severe temporomandibular joint disorder, developed a digestive disorder, had trouble sleeping and understandably, became depressed.

7In November 2006, Krystyna’s extraction site had healed sufficiently to accept implants and Dr. Ragnitz placed them in her mouth. She testified that during a period of two to three months, she continued to be without any teeth until Dr. Ragnitz cemented bridges to the implants. According to Krystyna, the bridges were painful, ill-fitting and had to be removed four times. She testified that each time Dr. Ragnitz removed the bridges she was without teeth for between two to three months.

8Krystyna testified that she attended 140 dental appointments with Dr. Ragnitz over a three year period. During these dental appointments, he applied a great deal of force to her, pushing her down into the dental chair causing a lower back injury. She testified that as a result she developed a disc bulge which interfered with nerves running through her spine and hips. The pain began as moderate pain, but quickly worsened. She testified that the pain became so severe that she could not walk, sit or lie down. At one point she was rushed to the emergency department and was prescribed heavy narcotics, but testified that she received no relief from the drugs. A course of epidural injections into her spine ultimately provided her with some relief.

9Krystyna testified that she is still on a partial liquid diet today and has developed a severe sleep disorder. She can only sleep two to three hours a night and only when induced with heavy prescription sleep medication. She continues to have moderate sciatic pain in her lower back and down her left leg. She must stretch every two hours or the pain increases. She testified that she is depressed and her relationship with her husband has suffered. She sleeps in a separate room from her husband due to her sleep disorder and has been unable to provide care and guidance to her special needs daughter since the time of her tooth extractions. She has experienced a general reduction in her quality of life and has not yet fully recovered.

10She testified that after Dr. Ragnitz stopped treating her, she was unable to find a dental specialist to care for her in her home city of Ottawa. As a result, she travels to Toronto two times a year for continued dental treatments by Dr. Yoav Finer, who is a prosthodontist. He is treating her in respect of the failed treatments she received from Dr. Ragnitz. Krystyna will be required to receive specialized dental treatments for the rest of her life. She is unable to travel alone to Toronto.

11Dr. Finer first examined Krystyna in September 2009 and later became her treating dentist. It is Dr. Finer’s expert opinion that Dr. Ragnitz’s dental work was below the required standard of care of a reasonably competent prosthodontist and that he caused acute inflammation and necrosis of the bone in her lower jaw, causing severe pain. Dr. Finer further concluded that the quality of implant rehabilitation provided by Dr. Ragnitz was below the standard of a reasonably competent prosthodontist, and that the quality of the prosthetic treatment, including the choice of bridges, design and fit, components and execution was also below the required standard of care.

Issues

12There are two issues before me. The first is whether liability is open for inquiry on a motion for default judgment where the defendant has been noted in default. The second is the appropriate amount of damages the plaintiff should be awarded for the injuries she sustained as a result of the defendant’s actions.

Is liability open for inquiry on a motion for default judgment?

13Rule 19.02(1) of the Rules of Civil Procedure states:

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim.

14The plaintiff submits that on an assessment of damages hearing, following the noting in default of a defendant, the trial judge may not enter into an inquiry about the liability of the defendant according to the decision of the Ontario Court of Appeal in Unlauf v. Unlauf et al, 2001 CanLII 24068 (ON CA), 53 O.R. (3d) 355, (Ont.CA). I agree with the plaintiff. The Court of Appeal made it clear in Unlauf that there is nothing in the Rules of Civil Procedure or the established jurisprudence to authorize a trial judge, on an assessment of damages, to enter into an inquiry into the facts or the underpinning of the causes of action that the defendant is deemed to have admitted by his default. Accordingly, I find that the liability of the defendant as pleaded in the statement of claim has been established.

What is the proper amount of damages to award the plaintiff for injuries sustained as a result of the defendant’s actions?

15The receipts, invoices and summary of the plaintiff’s special damages are referred to in Krystyna’s affidavit sworn October 25, 2011. The special damages which she has incurred to date amount to $127,484.01. I find that these special damages have been established on her affidavit evidence. In addition, she has a claim for $36,000.00 for future annual travel expenses to attend required dental appointments in Toronto. This amount is based upon her estimate that she will incur travel expenses of $1800.00 annually for the next 20 years. I find that this is a reasonable estimate of her future travel expenses. Accordingly, her claim for special damages totaling $ 163,484.01 is allowed.

16Krystyna claims non-pecuniary general damages for pain and suffering in the amount of $200,000.00. Rule 19.05(2) requires that a plaintiff’s claim for unliquidated damages on a motion for judgment must be supported by evidence. In this case the plaintiff filed affidavit evidence and testified orally on the motion concerning her injuries and the pain and suffering she has experienced as a result of Dr. Ragnitz’s negligence.

17According to Krystyna’s evidence, she has suffered the following personal injuries:

1. Tooth injuries

2. Jaw injuries

3. Temporomandibular joint disorder

4. Ongoing migraines

5. Neck pain

6. Severe infections to her jaw, tooth sockets and continuing infections of her sinuses

7. Ongoing lower back, hip and leg pain including sciatica

8. Difficulties with mobility

9. Ongoing digestive disorders including gastroesophageal reflux disease (GERD)

10. Ongoing severe sleep disorder

11. Ongoing drug dependence

12. Ongoing psychological disorders including anxiety and depression

18The plaintiff provided me with a summary of a number of reported cases involving plaintiffs who had suffered similar injuries to Krystyna’s injuries and submits that the range of damage awards (adjusted for inflation) in those cases is from $60,000 for single less severe injuries to approximately $250,000 for similar longer lasting injuries. It is submitted that because Krystyna suffered multiple injuries over a large portion of her body her general damages should be assessed at the upper end of the range.

19The plaintiff submits that the Ontario Court of Appeal’s decision in the case of Koukounakis et al. v. Stainrod et al. 1995 CanLII 621 (ON CA), 23 O.R. (3d) 299, involves the assessment of general damages in respect of a plaintiff whose injuries most closely resemble Krystyna’s injuries. In Koukounakis the plaintiff injured her right mandibular joint leading to temporomadiblar joint dysfunction. As a result, she suffered intense and continuous pain, could not work, sleep or eat properly and developed chronic stress, depression, headaches, codeine dependency and required dental treatment for the rest of her life. The Court of Appeal upheld a jury award of $180,000 for general damages. According to the plaintiff this amount, adjusted for inflation, amounts to roughly $250,000.today.

20In Koukounakis, Doherty J.A. stated that in assessing the factors which combine to yield an award for general non-pecuniary damages “the jury must compare the individual plaintiff’s anticipated lot in life after the accident with that which the plaintiff would have enjoyed but for the accident” I must do the same in assessing Krystyna’s general damages. I must also “consider real and substantial future possibilities, both positive and negative, which could impact on the plaintiff’s quality of life” (Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 at p. 644 (C.A.))

21Krystyna testified that before Dr. Ragnitz’s treatments she “was a happy camper health wise” and enjoyed swimming, skating, skiing and tennis. As a result of his treatments her social life has been seriously affected and her ability to enjoy life as she previously did has been greatly diminished. I find on her evidence that her quality of life has been seriously affected by her injuries. Her inability to look after her husband and her special needs child is extremely upsetting for her. Her constant pain and difficulty eating and sleeping have a serious negative impact on her quality of life. When her current situation is compared to her life before she was treated by Dr. Ragnitz, it is apparent that her quality of life has deteriorated most significantly. In my view, she should be awarded substantial non-pecuniary general damages to compensate her for this. I agree with the plaintiff that Krystyna’s injuries are similar to the injuries suffered by Mrs. Koukounakis, although, in my view, an award of $200,000.00 as suggested by the plaintiff is excessive, notwithstanding her serious injuries. I find that an assessment of her non- pecuniary general damages in the amount of $150,000.00 would be appropriate in the circumstances of this case. This is at the upper end of the appropriate range for her injuries, but, in my view, Krystyna’s quality of life has been severely affected by her injuries.

22For the reasons outlined above, the plaintiff is awarded special damages in the amount of $163,484.01 and non-pecuniary general damages in the amount of $150,000.00 for a total of $313,484.01 plus pre-judgment interest in accordance with the Courts of Justice Act.

23The plaintiff seeks costs on a partial indemnity basis in the amount $19,874.26. This amount includes legal fees of $14,787.46, disbursements of $3900.30 and a counsel fee for the hearing before me of $1186.50. In my view costs should be awarded to the plaintiff on a partial indemnity basis. I have carefully reviewed the plaintiff’s Costs Outline and I find it to be fair and reasonable. In my view the amount of costs sought by the plaintiff is appropriate in light of the complexity of this action and the amount of work required to be done by counsel. Accordingly, the plaintiff is awarded costs of $19,875.00 inclusive of disbursements and tax.

24I wish to thank counsel for their assistance.