Oswald v. Canada, docket T-2440-85

     T-2440-85

BETWEEN:

RONALD M. OSWALD

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR JUDGMENT

MacKAY J.:

     By the statement of claim in this action the plaintiff, Ronald M. Oswald, seeks general and special damages, prejudgment interest and costs against Her Majesty the Queen (the "Crown" or the defendant). The claim arises essentially in relation to pain and suffering, discomfort, and subsequent incapacity, at least for a time, said to have been caused as a result of unusual oral surgery performed on the plaintiff in 1985, and subsequent inadequate care and treatment of his condition, while he was incarcerated at Warkworth Institution. The institution is a medium security correctional facility for accommodating prisoners, operated by the Correctional Service of Canada at or near Campbellford, Ontario.

     The surgery was performed on the plaintiff by Dr. Richard Binder, D.D.S. a dental surgeon, and it was done at the health care centre at Warkworth. At that time Dr. Binder had been associated in dental practice with Dr. D. L. Derumaux at Campbellford, Ontario for a few months, since October 1994. Dr. Derumaux had a contract with the Correctional Service to provide dental services for inmates housed at Warkworth. Those services were rendered primarily at the health care centre in the institution. At the time in question, in January 1985, there was no formal written contract between the Crown, for the Correctional Service, and Dr. Binder. Apparently there was no written agreement between the two dentists, but in their association Dr. Binder shared with Dr. Derumaux in the latter's office practice and in providing services at the institution. Until April 1985, when he signed a contract with the Crown for his services, Dr. Binder attended at Warkworth, up to two days each week, acting for and as a delegate or subcontractor of Dr. Derumaux. The relationship of Dr. Binder to the Crown, as a subcontractor under the contract for services between the Crown and Dr. Derumaux was not disputed at trial.

The issues

     The action raises several issues to be considered in turn:

1)      Whether there was negligence on the part of Dr. Binder in performing the surgery, and in the post operation care provided to the plaintiff under direction of Dr. Binder, and of Dr. Dosaj, the medical doctor responsible for health care at the institution.

2)      Whether the Crown is responsible in damages for any negligence in services rendered by the doctors.

3)      What damages, if any, are established by the plaintiff's evidence?

     Judgment is now entered dismissing the plaintiff's action. While I find there was negligence which caused harm to the plaintiff, on the part of Dr. Binder, who is not a party defendant in this action, the dentist was at all material times an independent contractor retained to provide services at Warkworth Institution. Her Majesty the Queen is not liable, in the circumstances of this case, for damages arising from negligent acts of an independent contractor, in light of general principles under the common law and under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended (the "Act").

     In the event I am wrong in that conclusion, damages are here dealt with, on a provisional basis. If damages are here to be awarded, I assess general damages for pain and suffering to go to the plaintiff in the amount of $15,000.00, with prejudgment interest in accord with s. 31 of the Act.

     These reasons review the background circumstances, including the dental/medical concerns of and the treatment provided to Mr. Oswald, before turning to the issues of negligence, of liability of the Crown and of damages.

The background

     The plaintiff was forty one years of age in January, 1985. In March 1983 he had been arrested with others and charged with bank robbery. While held in jail in Toronto pending trial, he decided to testify against his co-accused; he did so, and he pleaded guilty himself and he was sentenced for a term up to eight years. Because of his testimony against others he was sent to Kingston penitentiary in protective custody for a time, then he requested and he was transferred to Warkworth Institution in the fall of 1983.

     He claims to have gained much from living in the disciplined society of the prison system. He resumed school studies, which he had left in grade 9; he successfully completed high school studies and by 1985 was looking forward to taking some university courses. In addition, he had renewed his interest in music, playing the guitar, singing and composing music; and by late 1984 he had begun to perform with a small group from Warkworth on escorted temporary absences at nursing homes and other institutions in the area. In addition, he was engaged in a regular program of weight training.

     In the fall of 1984 the plaintiff had requested a dental appointment because of a toothache. He had a history of dental problems, with considerable tooth decay and having lost a few teeth. On November 21 he was called to the Warkworth health care centre where he met Dr. Richard Binder for the first time.

     Dr. Binder was a doctor of dental surgery, authorized to practice in Ontario following completion of his university studies in 1983. Thereafter, he spent a year in a general dental internship at Toronto General Hospital, then he spent a few months working in a public health program for native people and others in remote areas of Ontario. In October 1984 he joined Dr. Derumaux in Campbellford. As part of his work with Dr. Derumaux he undertook services for the inmate population at Warkworth Institution. His understanding was that he was to provide general dental care for inmates. He does not recall any specific instruction or direction about the nature of the care and service to be provided, either from Dr. Derumaux or from anyone on behalf of the Correctional Service.

     By the terms of the contract with Dr. Derumaux, as by the terms of the standard form contract later concluded with Dr. Binder in April 1985, the dentist was designated as the "Contractor". In each case a standard term of Government of Canada contracts concerning General Conditions - Consulting and Professional Services, was included, as follows:

GC13      Contractor Status

13.1          This is a contract for the performance of a service and the Contractor is engaged under the contract as an independent contractor for the sole purpose of providing a service. Neither the Contractor nor any of the Contractor's personnel is engaged by the contract as an employee, servant or agent of Her Majesty. The Contractor agrees to be solely responsible for any and all payments and/or deductions required to be made including those required for Canada or Quebec Pension Plans, Unemployment Insurance, Workmen's Compensation, or Income Tax.

The general terms also provided for indemnification, as follows:

GC5      Indemnification

5.1          The contractor shall indemnify and save harmless Her Majesty and the Minister from and against all claims, losses, damages, costs, expenses, actions and other proceedings, made, sustained, brought, prosecuted, threatened to be brought or prosecuted, in any manner based upon, occasioned by or attributable to any injury to or death of a person or damage to or loss of property arising from any wilful or negligent act, omission or delay on the part of the Contractor, the Contractor's servants or agents in performing the work or as a result of the work.

     The work to be performed under the contract is described similarly in the contract of Dr. Derumaux and the later one with Dr. Binder, thus:

-      He diagnoses and reports on the dental conditions of inmates committed to the institution and he provides complete dental health by:

-      conducting periodic clinics at the institution dependant upon the case load;

-      examining patients, diagnosing oral conditions, formulating treatment plans, charting dental conditions and taking X-rays;

-      performing indicated dental treatments;

-      treating gums and abnormal dental conditions;

-      extracting some impacted teeth, and/or teeth beyond saving;

-      performing activities necessary for the provision of dental prosthetic appliances;

-      referring patients to Dental Specialists for specialized treatment if necessary;

-      [In Dr. Derumaux's contract of April 1, 1984, provision is made for five 3-hour sessions per week, 52 weeks per year, but no analogous provision was included in Dr. Binder's contract of April 1, 1985.].

     In the course of Mr. Oswald's first appointment in November, the plaintiff mentioned to Dr. Binder his interest and activity in singing, and he told the dentist that he had some difficulty singing certain notes or sounds because he couldn't seem to extend his tongue very far. Dr. Binder examined his tongue and told him that it looked as though he was somewhat tongue tied, that is, that his tongue was tied down more than might be expected and that the condition could be improved by a fairly simple procedure. Oswald's evidence is that he was told the procedure was fairly simple, involving some cutting but that it would probably not cause difficulty for more than three days and that it should relieve his problem. He says that he advised Dr. Binder he would have to think about the matter, that he was afraid of needles, presumably referring to local anaesthetics, and that he was not anxious to have the procedure done at that stage because of anticipated opportunities to sing outside the prison in the new year. Dr. Binder filled a cavity during that first appointment. He noted that, and he also entered on a record of dental treatment affixed to Oswald's chart at the time, that the patient was "to be called back for tongue tie".

     On January 7, 1985 the plaintiff was again called to the health care centre for a dental appointment. He had not requested this appointment and he assumed it was for a further filling left to be done after the first appointment. To his surprise, Dr. Binder told him he had been called back so that the surgery could be performed to relieve his tongue tie. The plaintiff's evidence is that he again said at that time that he would have to think about it further, that he was afraid of needles. They talked about the procedure briefly, and Mr. Oswald then agreed they might proceed.

     The surgery performed is known as lingual frenectomy. As described by Dr. Binder in cross-examination, it involves making an incision by scalpel, under local anesthetic, in the tissue between the tongue and the base of the mouth, to increase mobility of the tongue, and then the placement of sutures to close the wound properly and promote healing.

     In this case the procedure took between 30 and 40 minutes, by Dr. Binder's estimate. After administering local anesthetic, he used an instrument known as a mouth prop to keep the patient's mouth open so that the procedure could be conducted without interruption and to permit adequate access to the site of the surgery. About halfway through the procedure, when Mr. Oswald complained of soreness in his jaw muscles, Dr. Binder interrupted the process, apparently removing the mouth prop for five minutes or so before replacing it and continuing. The only other observation Dr. Binder could recall was that at one point, in the course of his inserting sutures, Mr. Oswald complained of pain from the surgery and the dentist administered more local anesthetic before completing the 14 sutures which were ultimately inserted to close the surgical site.

     Dr. Binder admits he had not performed the procedure before. He had observed it during the course of his general internship and he believes that he had made the incision in accord with what he had observed during his internship experience. Mr. Oswald's testimony about the occasion, in addition to comments concerning the pain he experienced from the surgical procedure, is that he heard a popping in the area of his left jaw during the process when Dr. Binder was inserting stitches. Dr. Binder did not recall this in the course of his testimony at trial, but he did acknowledge noting in the record, as a result of his palpitation of the jaw joint following surgery, that there was grinding in the joints which appeared to be the cause of some pain experienced by Mr. Oswald. A memorandum from Dr. Binder to the Warden on May 30, 1985, records that the procedure was undertaken "to free up his tongue for speech purposes. Subsequently, unforeseen scarring under his tongue lead [sic] to obstruction and infection of a salivary gland", for which he had been referred to a specialist in oral surgery, and another in ear, nose and throat problems. Notes made on October 15, 1985 by the then Warden, Mr. Dan Kane, from his conversation at that time with Dr. Binder, include the following notations:

...No problem during procedure. At one point there was a poping [sic] of the jaw joint. History of jaw problem.

During procedures a nerve was severed and a gland was severed

...

Referred to Dr. Sutka [sic] (specialist). Dr. Sutka documents numbness of tongue & problem with jaw joint. Sutka referred to Dr. Fong [sic] (ear, nose, throat)

Dr. Fong saw him several times and opened up duct. ...

Oswald sent back to see Dr. Sutka who is doing treatment and fitting a "nightguard". He may require surgery.

     Following the surgery there were complications which neither Dr. Binder nor Mr. Oswald anticipated. One problem was the condition of his mouth, with more bleeding, swelling and pain than anticipated, and with extended infection and numbness of the tongue which were not expected. I find these conditions were a direct consequence of the surgery. Infection of a saliva gland resulted after the surgery, from no other suggested source, following closure of a duct by scar tissue from the surgery. I do not accept the warden's note of severance of a nerve and a gland, which Dr. Binder refuted at trial when he testified that he had not said that to the warden, but there is no dispute that a nerve was affected at least for a time and the left submandibular salivary gland was seriously and lastingly affected adversely.

     The second problem concerns difficulties and pain arising from the jaw joints, with TMJ or temporomandibular joint problems, particularly of the left jaw. This condition was not accepted by Dr. Binder or by the Crown as a consequence of the surgery. There is evidence in institutional medical and dental records that the plaintiff had problems with his jaw joints prior to the surgery. Though they are not precise, records include entries in March 1983 from the Toronto East Detention Centre reporting that Mr. Oswald reported a "Sore jaw" and that "Both TMJ crack. Can open mouth fully". In completing his medical history on or soon after arrival at Kingston Penitentiary, on November 3, 1983, the plaintiff checked a box indicating affirmatively "Serious head injury or concussion" and he added a note "Kick boxing numerous concussions"; he also checked a box indicating "Numerous headaches" and added a note "caused by jaws". In a record of dental treatment attached to his Dental Record, begun while he was at Kingston Penitentiary and carried on when he moved to Warkworth, there is a note by Dr. Derumaux dated September 17, 1994 "Tylenol #2 ... 3 days for jaw/TMJ problem which arises every month or two due to kick boxing experience". That was the last entry on the record preceding Mr. Oswald's first appointment with Dr. Binder and it may be the source of the latter's belief that the plaintiff's TMJ problems were the result of kick boxing. At trial Mr. Oswald stated that he had never taken part in kick boxing but he said that while he was held at the Toronto East Detention Centre he had demonstrated a few manoeuvres of the martial arts that had helped to promote a reputation that he was an experienced kick boxer, a reputation that travelled with him, conveyed by others moving on from the detention centre to Kingston and to Warkworth. That reputation he did not then seek to downplay for it seemed to him to provide an appearance that he was one to be treated with some respect, as a person with a reputation of ability to physically defend himself.

     I note there is also reference in medical records, of history reported by Mr. Oswald prior to the surgery in 1985, that he had broken his jaw in 1973 and 1983. Dr. Psutka, one of the specialists treating him after the surgery, reported that the plaintiff had told him of previous fractures, and Dr. Psutka reported x-ray evidence of signs of an earlier fracture having healed. In 1984 Mr. Oswald was missing a number of teeth and had a partial plate which he did not wear consistently because of discomfort. A broken jaw, if it had occurred, his missing a number of teeth, and the fact that Mr. Oswald reportedly showed evidence of grinding his teeth, were said at trial by dentist witnesses to be possible causes of TMJ problems generally, but there is not clear evidence of the basic causes of the TMJ problems of the plaintiff.

     I am not persuaded that Mr. Oswald's TMJ problems began as a result of the surgery by Dr. Binder, although they have continued since then to cause pain, headaches and discomfort, long after the problems with tongue, with infection and salivary gland complications were addressed or had receded. Indeed, the TMJ problems are said to still cause discomfort and pain.

     Nevertheless, I find that his TMJ problems, while not caused by, were aggravated as a result of, the surgery, in particular by use of the mouth prop for an extended period, up to 40 minutes, with a brief break in the middle. There was testimony at trial from another dentist that TMJ problems are not always appreciated, in their presence or in the necessity to minimize their impact, by dentists in general practice and there is no evidence that Dr. Binder took cognizance of Mr. Oswald's pre-existing TMJ problems until after the surgery was completed, although, as we have seen, the last note on his dental record before the visit on November 21, made by Dr. Derumaux, included reference to TMJ problems. Although Dr. Binder's practice was to review that record before each appointment, there is no evidence that aggravation of such problems was considered a risk by Dr. Binder or was mentioned to the plaintiff in advance, or that steps were taken to address it. True, the "time-out" taken in the course of the procedure was a result of a complaint by Mr. Oswald that his jaw muscles were sore, but that stopping in the procedure resulted from his complaint during the course of the procedure, not from a planned respite because of pre-existing jaw problems of the plaintiff.

     In my opinion, the evidence of the plaintiff's post-operation complaints, and of the efforts made to treat those, clearly support the conclusion that even if he had TMJ problems before January 7, 1985, those problems were aggravated and required more immediate and extensive attention and treatment as a result of the surgical procedure followed by Dr. Binder. Treatment of those problems was in fact rendered through specialists' services arranged on Dr. Binder's initiative and paid for by the Correctional Service. The only matter outstanding at trial was whether further specialist services may be required. On the basis of the evidence before me I can only conclude that the services of specialists to treat TMJ problems of the plaintiff, thus far provided or that are determined to be required within the near term, say two or three years, will have been required at the time they are rendered, as a result of the surgical procedure of Dr. Binder on January 7, 1985. Whether they might otherwise have been required at a later time is a matter of speculation.

     I turn to the post-operative care provided to the plaintiff after surgery on the afternoon of January 7, 1985. Dr. Binder prescribed Tylenol #3 for pain relief and Mr. Oswald returned to his cell following the surgery. Then before the afternoon was over, he returned to the health care centre because bleeding did not stop and he had extensive pain. Dr. Binder was still there and he saw Mr. Oswald, prescribed a sleeping or relaxing medicine, and noted on his dental record: "Head and neck pain. TMJ Creptus" [which I understand meant there was cracking noise in the temporomandibular joints]. "Complains of neck swelling but able to swallow and breathe normally - will keep in hospital overnight.".

     Mr. Oswald remained in the infirmary unit at the health care centre in Warkworth from then until the 18th of January, under the care of Dr. Binder, assisted by the nurses at the centre. Dr. Binder returned to Warkworth to see him on January 8 and he saw him again when he was at the institution on January 15; in the interim Dr. Binder had directed medication through the nursing staff. Mr. Oswald was administered drugs for relief of pain, for relaxation and sleep, and for infection which became a concern with some swelling in the face and the underside of the jaw. He had difficulty talking and eating initially. On January 11, a weekend, the nursing staff arranged for him to be taken to the Campbellford Hospital where he was examined by the physician on duty in the emergency service who noted: "floor of mouth swollen - glandular enlargement & fever. ears ok.". Mr. Oswald was returned to Warkworth with medication prescribed and with a hospital discharge diagnosis of "Infection - floor of mouth". He remained in the health care centre until January 18, 1985 when he was returned to his cell, apparently on instruction or advice of Dr. A. K. Dosaj, a medical doctor, who was retained on a continuing part-time basis by Correctional Services to provide medical care at Warkworth. Dr. Dosaj was the institutional physician responsible under contract for medical services. He was on holiday, not in attendance at the institution on January 7 and he returned from holidays on the 18th. He did not thereafter assume responsibility for treatment of the plaintiff in respect of his problems arising from Dr. Binder's surgery, though he did thereafter provide medical services for any other health conditions of the plaintiff.

     Dr. Dosaj's absence when, and for some ten days after, the surgery was performed, and his leaving Oswald's mouth and jaw problems to be treated by Dr. Binder, and under the latter's direction, are the bases for the plaintiff's claim in relation to Dr. Dosaj, that there was negligence in the after-operation care provided to the plaintiff by those responsible for medical care under the defendant's direction. In my opinion, there is no fault on the part of Dr. Dosaj for leaving treatment of the conditions following surgery to Dr. Binder. He was not responsible for services rendered by Dr. Binder or any other dentist at Warkworth, and the dentist concerned had a professional responsibility and competence, unless otherwise demonstrated, to care for his own patients in relation to the after effects of treatment rendered.

     The plaintiff also claimed there was negligence on the part of the two wardens responsible for the institution in succession in 1985 and against the deputy to the warden responsible for administration of health care services. The claims against those persons, arise in essence as aspects of the plaintiff's claim that there was delay in providing post operative care by specialists, a matter for which Dr. Binder had the primary responsibility.

     In the result, the post-operative care of Mr. Oswald's condition was provided and arranged for by Dr. Binder. The records show that Dr. Binder did see Mr. Oswald when the latter remained in the health care centre, on January 8 and 15, and thereafter he saw him on January 22, 24 and 31 and on February 5, 7, 12, and after he had resumed routine dental work for the plaintiff on February 19, 26, 28 and in March. Dr. Binder prescribed drugs to alleviate his pain and infection. He initiated the arrangements for consultation with an outside specialist, an oral surgeon, at the end of February or beginning of March. He continued to see him thereafter, to monitor his condition and to look after additional dental work. Mr. Oswald's condition seemed to improve through January and February, but when swelling and apparent infection had not disappeared by March, Dr. Binder arranged for Oswald to see an oral surgeon in Peterborough, Dr. D. J. Psutka. That first appointment was obtained for mid-April and the day of that session Dr. Psutka arranged for him to see Dr. I. C. Fung, an ear, nose and throat specialist, about the apparent infection of Mr. Oswald's left submandibular gland.

     Thereafter, in May under Dr. Fung's direction a sialogram of the gland was attempted at the Peterborough hospital, but was not completed since no duct opening for the gland was found in the floor of the mouth. On July 26, Dr. Fung completed surgical examination of the left submandibular gland. He found no swelling of the gland but no saliva could be expressed from it and no duct opening from it was found. By incision he opened a duct and still found no saliva could be produced. The gland was slightly atrophic.

     In the course of treatment by Dr. Fung, at least two of his appointments for Mr. Oswald were cancelled because no escort was available to accompany him. At the end of that treatment, on September 3, Dr. Fung followed up with an examination that indicated no swelling of the gland, which was inactive and did not require removal. Thus by September 3 or earlier, the problems of the plaintiff's mouth, but not of his jaw joints, resulting from the January surgery could be said to be remedied in a clinical sense, that is bleeding, swelling, pain, infection and numbness of the tongue, were no longer medical problems for Mr. Oswald. While there was some suggestion the infection problem might have recurred, there was no clear evidence of that. A subsequent examination by another specialist in February 1986 indicated that at some time in future the gland would probably require removal but that appears not to have been done thus far.

     Following Dr. Fung's treatment, on Dr. Binder's initiative, Dr. Psutka commenced treatment to provide relief for continuing TMJ problems of Mr. Oswald, first by developing and fitting a removable brace or splint to be worn principally at night to hold the jaw and re-establish proper positioning of it. Later, in April 1986, Dr. Psutka performed surgery on the plaintiff's jaw joints to restore proper positioning of discs and cartilage.

     Following that surgery Dr. Psutka referred Oswald to Dr. Warren Hellen, a dentist in general practice in Scarborough, who saw the plaintiff on a number of occasions, and undertook a program to fill cavities, do extensive scaling, and to stabilize his bite by use of a further splint. The work extended over several months commencing in July 1986. Aware of the background of the TMJ problems from Dr. Psutka, the work on Mr. Oswald's teeth was undertaken with frequent rest periods in the procedure. The treatment rendered by Dr. Hellen, as earlier by Dr. Fung and Dr. Psutka, was paid for by the Correctional Service. At trial, Dr. Hellen reported he had last seen Mr. Oswald in March 1992. At that time his oral health was substantially improved over its condition when he first saw the plaintiff some six years earlier. Moreover, the apparent grinding of his teeth, observed from signs of wear on the teeth at this first visit in 1986, showed no sign of continuing as a problem in 1992.

     Apparently, Mr. Oswald continued to have problems with his jaw from time to time. Dr. Ray Mulrooney, a dentist with a special interest in TMJ problems and a fellow of the International College of Craniomandibular Orthopaedics, testified that the plaintiff was referred to him in August 1994. He had assessed Mr. Oswald's problem and had done some restorative work on fillings. In his view, a thorough assessment of the problem presented by symptoms of recurring headaches, pain and spasm in the jaw joints, would require further services at a cost of about $2,500. Further, perhaps $3,500. or $4,000. would be required if, at a later stage, additional work was found to be necessary. In his view, at that later stage, some restorative work on the lower jaw by fixed prosthetics might be required to improve alignment of the upper and lower jaws, and thus relieve tension and stress on the jaw muscles and joints.

     So far as the medical concerns arose from the surgery of January 1985, in my opinion they were substantially remedied before trial. Mr. Oswald's mouth problems, excluding the jaw or TMJ problems, were essentially addressed by the work of Dr. Fung in 1985 and completed by September of that year. It is true that Mr. Oswald sought advice of other medical doctors in 1986 and 1994 about the left submandibular gland where earlier Dr. Fung had found signs the gland had atrophied. It was reported from the 1994 examination that the glands had atrophied on both the left and right sides; there was no visible duct from these glands, and no saliva could be expressed on either side. But there is no evidence that any further atrophy after 1985 was a result of the surgery in January 1985.

     I find that work on Mr. Oswald's jaw was substantially completed by Dr. Psutka and Dr. Hellen in 1986 and 1987. Nevertheless, in my view, the further assessment proposed by Dr. Mulrooney ought to be provided for, and if it proves necessary, further restorative work on the lower jaw should be completed. The previous work required as a result of the surgery has apparently been paid for by the Crown. If further work is required I would hope its costs would be met by Her Majesty, if necessary on an ex gratia basis. In my opinion if that work is considered necessary, it should be considered as caused, in terms of its timing now rather than at a more advanced age, as a result of the January 1985 surgery of Dr. Binder.

     Two other aspects of Mr. Oswald's circumstances in the months following that surgery were raised at trial. They concerned alleged delay in the provision of treatment and care, and the complications for the plaintiff arising from the arrival at Warkworth in June of 1985 of his co-accused from their criminal trials in 1983.

     I am satisfied that delays in providing care did exacerbate the circumstances at the time for the plaintiff. In particular, in my opinion, there was delay on the part of Dr. Binder in seeking advice of outside specialists. The surgery was performed in early January 1985, yet it was not until the end of February that his concern over apparent continuing infection led to his seeking an appointment for Mr. Oswald with Dr. Psutka, and the latter's referral of the patient to Dr. Fung. Then, after some delays as a result of cancelled appointments, it was not until September that Dr. Fung could confirm that the surgical procedure he had followed in July to examine the left submandibular gland area had resolved the possible need for further treatment of that problem. Only thereafter was the work on the plaintiff's TMJ problems begun by Dr. Psutka. In my opinion, Dr. Binder failed in his duty to provide reasonable care after the surgery, but only in respect of delay, of a month or more, in seeking to refer Mr. Oswald to specialists for consultation and, as it turned out, for necessary treatment.

     There is evidence that on at least three occasions scheduled visits for Oswald to see the specialists, particularly Dr. Fung, were cancelled, apparently because an escort was not available to accompany him out of the institution. That problem was said not to be unique to the plaintiff's condition. At least for him it was not a problem after he, and his father, had brought the matter of cancelled appointments directly to the attention of the warden. Mr. Kane, the warden, who arrived at Warkworth in the spring of 1985, in August directed an administrative inquiry be made about the circumstances of the surgery and its subsequent treatment and procedures. In part as a result of that he issued directions to ensure that thereafter appropriate assessment was made of the priority of any outside medical referral appointment for the plaintiff, in light of available manpower, and apparently no appointment thereafter was cancelled.

     For the Crown it is urged that cancellation of appointments resulting in delays was a result of a policy decision on behalf of Her Majesty, to maintain security of the institution at the expense of external escort services where available staff on any shift was inadequate for both purposes. Without resolving whether the decision on each occasion was operational rather than a policy decision, my conclusion about the matter of delay from cancelled appointments is that it is not established that delay complicated or worsened the medical condition of Mr. Oswald, although it may have extended unnecessarily his distressing experience and his frustration at the slow progress in treating his case. In any event, that delay is not established to have been the result of negligence on the part of the keeper of the institution on any of the occasions when appointments were cancelled.

     The second aspect of concern to the plaintiff in his post operative period was the arrival of one of his co-accused at Warkworth in the spring of 1985, one against whom he had testified at trial. This created real concern on Mr. Oswald's part, since he had understood efforts would be made to ensure they were not housed in the same institution. Following a meeting with his co-accused, the plaintiff took refuge in his cell and refused to leave it for prolonged periods in the late spring and summer of 1985, while his unhappy experience from pain following surgery continued, and his frustration with missed appointments with specialists mounted. No doubt it presented a special problem for Mr. Oswald but it is not a basis for any claim, in negligence or otherwise, in this case against the Crown.

Negligence

     I turn to consider the basis of any claim for negligence. In my opinion there is no evidence of negligence on the part of Dr. Dosaj. While he acknowledged some general responsibility for oversight of the care provided to Mr. Oswald following the surgery in January 1985, he left, properly in my opinion, the responsibility of managing care for the plaintiff's mouth and jaw problems to Dr. Binder, whose patient the plaintiff was in regard to dental and oral surgery in January 1985 and in succeeding months.

     I find no fault or negligence on the part of designated staff or employees of the Crown, that is, the wardens and the administrative director of health services, in regard to cancellation of appointments with outside specialists when escorts were not available to accompany the plaintiff. Nor were they at fault in arrangements for the care and for referrals to specialists of Mr. Oswald, a matter left to be supervised and arranged by Dr. Binder.

     I do not suggest that delayed initial contact with specialists was a cause of the medical conditions associated with Mr. Oswald's mouth or jaw problems following the January 1985 surgery. Nevertheless, I do find that this delay caused the plaintiff's pain and suffering, and his frustration about relief, to be extended over a longer time than was necessary. Failure by Dr. Binder to ensure timely external advice is not, in my opinion reasonably explained. It was only at the end of February, long after it was clear that unanticipated complications were continuing, that he referred the plaintiff for examination by specialists.

     That, however, is not the main ground for finding there was negligence in this case. Rather, the principle element of negligence, in my opinion, was that of Dr. Binder in performance of the surgery. My conclusion is based on the following factors: i.e., the lack of appropriate professional judgment in deciding upon the procedure, the failure to provide adequate information in advance of surgery to ensure informed consent, and the procedure followed. These faults I find in addition to the failure to seek advice and assistance of specialists when unexpected difficulties persisted after the operation.

     It is awkward to assess negligence in relation to the conduct of Dr. Binder who was not a defendant in this action, though he appeared and testified voluntarily at trial. In the circumstances of this case, I see no alternative to assessing his conduct. It must be borne in mind that any adverse assessment has significance only for this case. The result might be different, depending on evidence adduced in an action where Dr. Binder was a party and free to adduce his own evidence and to cross-examine witnesses.

     The fact that something has gone wrong as a result of medical procedures is not in itself evidence of negligence (Challand v. Bell (1959),18 D.L.R. (2d) 150, 27 W.W.R. 182 (Alta. S.C.)). In her text on Legal Liability of Doctors and Hospitals in Canada, 2nd Ed., (Carswell, Toronto 1984) at p. 150, Ellen Picard, now Madam Justice Picard of the Alberta Court of Appeal, summarizes requirements the plaintiff must meet in a negligence action of this sort.

     Those key requirements are met in the circumstances of this case, in my opinion. I am satisfied that the Crown owed the plaintiff a duty to provide reasonable medical and dental care. That duty in this case was contracted to be provided by Dr. Binder, who himself owed a professional duty of care to Mr. Oswald. That duty was to exercise reasonable skill and competence, in diagnosis and treatment of, and to give reasonable information and advice to, the plaintiff. Further, I find that the plaintiff suffered injury or loss and that the cause of that injury was the conduct or negligence of Dr. Binder. The principle question here, in relation to a finding of negligence, relates to the issue whether Dr. Binder can be said to have breached the standard of care which by law was owed by him as a duty to the plaintiff.

     In my opinion, the evidence clearly supports the conclusions previously set out about failings of Dr. Binder. In my view he did not exercise appropriate professional judgment in deciding to proceed with a lingual frenectomy. It was not essential; at most it was an elective procedure. The Correctional Service purported to provide only essential dental and medical care. Mr. Kane, who arrived as warden at Warkworth in the spring of 1985 after the surgery, at trial described as "bizarre" the circumstances of the surgery and complications arising from it, at a time when the whole Correctional Service was under restraint to ensure that expenditures were devoted only to essential matters.

     There was no medical record of any previous observation of Mr. Oswald's tongue tie; there was only his oral reference in discussion with the dentist to a difficulty in singing certain notes or sounds, not in his speech. It was admitted by Dr. Binder that he performed the surgery, to correct or facilitate speech capacity, without clinical assessment other than his brief examination of the plaintiff's tongue, on November 21, 1984 and again as he commenced surgery on January 7, 1985. He accepted the plaintiff's own expressed concern over difficulty in singing certain notes as the basis for his conclusion that Mr. Oswald had a problem because of a tongue tie condition which affected his singing. Dr. Binder acknowledged he did not notice the problem from the plaintiff's speech, and he had not heard him sing. Further, he had not performed the procedure before, even under supervision of an experienced dental or oral surgeon, though he had observed it during his general internship year. It was not a routine dental procedure, yet it would be surprising if all routine dental procedures known and practiced by Dr. Binder had not been observed, and also practiced under supervision, in his undergraduate dental clinical training and in his general internship.

     In advance, he did not anticipate any serious complications from the process. It is true that Mr. Oswald consented to the procedure before it was begun and that Dr. Binder believed he had the plaintiff's consent to proceed. I do not accept this as informed consent, about the nature of the procedure or of its possible effects. Moreover, consent of the plaintiff would not excuse negligence of the dentist so as to provide a defence in this action. There is evidence that Dr. Binder did speak in advance of the possibility of some pain, bleeding and swelling, and of some possibility of infection from the surgery. There was no reference to possible nerve damage which affected Mr. Oswald, or of possible infection of the submandibular gland and interruption of saliva production by closing of a duct, or of possible TMJ complications. None of these were apparently foreseen by Dr. Binder. Yet his duty was to inform the plaintiff in advance of surgery, not merely of the likely consequences, but also of the possibility of serious risks. The standard of care in this regard, as settled by the Supreme Court of Canada in [1980] 2 S.C.R. 192">Hopp v. Lepp, [1980] 2 S.C.R. 192; (1980) 4 W.W.R. 645; 32 N.R. 145, 112 D.L.R. (3d) 67, is that the medical or dental person is obliged to disclose, without being questioned, "the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation" (per Dickson C.J. at p. 210 of S.C.R.). An "3unusual3 or improbable risk should be disclosed if its effects are serious. Conversely, a minor result should be disclosed if it is inherent in or a probable result of the process", per McLachlin J. in Rawlings v. Lindsay (1982), 20 C.C.L.T. 301 at 306 (B.C.S.C.). In my opinion, the standard of care concerning disclosure of possible effects of the surgery was not here met by Dr. Binder.

     In any event, for the consent of the plaintiff to be relied upon as a defence, there must be some evidence of how the standard of care in the circumstances would be applied by members of the profession. Here no evidence was adduced by the defendant to show what the professional standard for disclosure was, or that it was met by Dr. Binder.

     For the defendant it is urged there is no clear evidence offered about the standard of care owed to the plaintiff in regard to the surgery. I am content to rely on evidence of Dr. Hellen and of Dr. Mulrooney, both engaged in the practice of general dentistry, neither of whom offered direct criticism of Dr. Binder's decision or his work, but both of whom said they had not and would not perform a lingual frenectomy, they would refer a patient with a need for one to a specialist, they would not be comfortable to, or would not because of inexperience with the procedure, undertake such surgery, even though each considered that as a dental surgeon he was authorized in law to undertake it. It is urged that the standard of care is that of the reasonable man in the position of Dr. Binder, with his experience and knowledge at the time. But neither ignorance of risk, nor inexperience, is a factor that lowers the professional's standard of care. Rather, if anything the professional person, more so than others, should be conscious of the limits of his or her knowledge and experience and in effect should consciously take greater care as his work extends to the limits of his or her experience and knowledge. In short, Dr. Binder's inexperience at the time does not lower the standard of care he owed to Mr. Oswald. The only evidence before me is that two practitioners of general dentistry would not have undertaken the procedure. Indeed, at trial Dr. Binder himself acknowledged that if he knew at the time of the surgery what he now does, he would have dealt with the plaintiff differently.

     What of the surgery itself? Is there evidence of negligence in the performance of the work? I find there is, in the apparent failure to undertake a thorough clinical assessment in advance, a factor that in my view contributed to the closing of the salivary duct and the infection and atrophy of the left submandibular gland and to nerve damage that brought numbness to the tongue. Further, the use of the mouth prop for an extended period, though intended to provide access to the surgical site while taking some pressure off the jaw muscles, in my opinion aggravated the plaintiff's existing TMJ problems. In the result, these problems were found to require addressing, by splints and surgery by Dr. Psutka and by further treatment by Dr. Hellen following Dr. Psutka's remedial surgery.

     As earlier noted, the plaintiff faults Dr. Binder and others for failure to provide appropriate care following surgery. In my opinion, except in one respect Dr. Binder did provide reasonable post operative care and supervision of Mr. Oswald's subsequent treatment until he withdrew from rendering service, then leaving the plaintiff to be dealt with by Dr. Derumaux for routine dental needs, after Mr. Oswald initiated action in the Ontario Courts against Dr. Binder. Nevertheless, as I have noted, I find that Dr. Binder failed in his professional duty of care to the plaintiff, after the surgery in January 1985, by failing to refer him, for consultation and treatment, to specialists when it was apparent at least by early February 1985, that complications from the surgery persisted. Mr. Oswald continued to experience pain, the problem of infection of the gland continued and TMJ problems bothered him, despite the continued administration of medicines to relieve pain and to counter the infection. Yet it was about another month before steps were taken by Dr. Binder to refer the plaintiff to Dr. Psutka, an oral surgeon, for examination. The process of treatment by specialists was thus delayed at a time when the plaintiff was in continuing distress and was seeking to have some action taken to alleviate his symptoms. That delay, in my opinion, did not cause the problems but it did contribute to their continuing longer than would have been the case if the same services of specialists had been accessed earlier.

Liability of the Crown

     Even if, as I find, there was negligence on the part of Dr. Binder which caused harm to the plaintiff, it is said for Her Majesty the Queen that the Crown is not liable in damages for this. That position is based upon submissions that the Crown is not vicariously liable for negligence of one who is retained as an independent contractor to provide a service, and further it is said the Crown cannot be liable for negligent acts by such a contractor that are outside the scope of the contract of service.

     Those submissions are based upon the established principle that a principal is not ordinarily responsible for negligence of one retained as an independent contractor. Moreover, the Crown is liable in actions for alleged torts or civil wrongs only to the extent provided by statute, and here there is no liability for such negligence under the Crown Liability and Proceedings Act, supra. The Act provides for liability in tort, relevant in this case, in the following terms:

3. The Crown is liable in tort for the damages for which if it were a private person of full age and capacity, it would be liable

(a) in respect of a tort committed by a servant of the Crown; ...

10. No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative.

Under s. 2 of the Act "servant" is defined in the following terms:

"servant" includes agent, but does not include any person appointed or employed by or under the authority of an ordinance of the Yukon Territory or the Northwest Territories.

     The Act does not include a specific provision like that found in the Crown Proceedings Act, R.S.B.C. 1979, c. 86 as amended, and the Proceedings Against the Crown Act, R.S.O. 1990, c. P-27 as amended, which define "agent" when used in relation to the Crown, in right of British Columbia and in right of Ontario respectively, as including an independent contractor employed by the Crown. Both those acts also specify that the Crown is not subject to greater liability for acts and omissions of such a contractor than that to which it would be subject if it were a person (see R.S.B.C., c. 86, para. 3(2)(b); R.S.O. 1979, c. P-27, para. 2(2)(a)).

     In this case there are no statutory provisions that modify the application of the common law that one, who contracts with an independent contractor to perform services, is not liable for the acts or omissions of the contractor, unless the principal owes an independent duty of care that cannot be delegated or assigned to be undertaken by an independent contractor, which duty is found not to be met in circumstances where that failure causes or contributes to the loss in question.

     In my opinion, even if the Crown may be liable for damages caused by negligence of an independent contractor in certain cases, this is not one of the exceptions to the common law principle. The duty of the Crown owed to Mr. Oswald as an inmate at Warkworth was to take reasonable care for his health and safety while he was in custody ([1973] S.C.R. 2">MacLean v. The Queen, [1973] S.C.R. 2 at 7). In terms of medical and dental services that duty is reflected in s. 16 of the Penitentiary Service Regulations, C.R.C. 1978, c. 1251, as applicable in 1985, which provided:

16. Every inmate, shall be provided, in accordance with directives, with the essential medical and dental care that he requires.

     The Crown's duty to provide essential medical and dental care can only be met by arranging for services of qualified members of the medical and dental professions, among others, either by employing them or by contracting for their services. That duty may well be one the Crown cannot delegate, but the actual provision of the care on a reasonable basis does not render the Crown liable, vicariously, for the acts or negligence of health personnel unless they are "servants" within the meaning of the Act.

     Here, in my opinion, the duty of the Crown to Mr. Oswald was reasonably met by contracts with qualified medical and dental doctors for their professional services, both within Warkworth and outside, and by provision of care, in the institution's health care centre and services within the institution or outside in the wider community.

     The duty of Dr. Binder, as of Dr. Dosaj and of the others who treated Mr. Oswald, e.g., Drs. Fung, Psutka and Hellen, was to render reasonable care with the skill, knowledge and judgment of the reasonable and prudent practitioner with the same special skills and knowledge. That is a different duty than that owed to Mr. Oswald by the Crown. Unless the person rendering the service is a servant of Her Majesty, the Crown is not vicariously liable for negligent acts of the doctor concerned. For all of those who render service as independent contractors, in this case that is all of the doctors concerned, whether that care was rendered in or outside Warkworth, their personal liability for any negligence does not also involve liability of the Crown.

     To put matters another way, the Crown is not exposed to greater liability for negligence of independent contracting doctors and dentists who render their services to inmates within the institution, e.g. Drs. Binder and Dosaj, than it would be for negligence of others similarly retained who render services outside the institution, e.g. Drs. Fung, Psutka and Hellen.

     To impose upon the Crown a general duty to ensure professional medical or dental services are rendered without negligence would place the Crown in the position of an insurer of medical services provided by independent contractors. I have great sympathy for the predicament of Mr. Oswald as a result of the surgery in January 1985, but it is not possible to construe the circumstances as establishing the Crown's liability as an insurer. It is not liable in damages for every failure of a contracting physician or dentist to render reasonable care. The Crown's duty to Mr. Oswald was to use reasonable efforts to provide qualified medical and dental personnel to meet the essential health needs of the plaintiff, as of other inmates. This duty was met by retaining qualified medical and dental practitioners who owed their own general professional duty of care to the plaintiff.

     In this case there was no evidence that authorities at Warkworth, or elsewhere within the Penitentiary Service, or Dr. Dosaj or Dr. Derumaux had advised Dr. Binder in any detail about his responsibilities at Warkworth, at least before he signed his own contract in April following the surgery involving Mr. Oswald. It might be considered that those acting for Her Majesty did not take reasonable care in defining Dr. Binder's responsibilities in advance of his commencing service, but in this case any such failure did not violate the Crown's duty to Mr. Oswald for there is no question Dr. Binder was a qualified dental surgeon and the Crown's tacit acceptance of his services under the contract with Dr. Derumaux fulfilled its duty to provide qualified personnel.

     The lack of evidence of any instruction or advice about Dr. Binder's responsibilities at Warkworth is, however, sufficient basis to dispose of the Crown's other argument against its liability, that is, that the surgery performed was outside his duties because it is not considered to have been essential. That assessment is made in hindsight and without regard to any assessment made by Dr. Binder himself at the time. While I find his judgment to have been in error, he clearly considered at the time that the procedure he undertook was appropriate and within his understanding of his responsibilities.

     In the result, I conclude that under the Act the defendant is not liable in damages for the harm caused to Mr. Oswald by reason of the negligence of Dr. Binder.

     Nevertheless, in case I am in error in that finding I turn briefly to the issues of damages raised by the plaintiff.

Damages

     At the beginning of these reasons I noted that by the statement of claim the plaintiff seeks general and special damages, pre-judgment interest and costs.

     The statement of claim was filed in November 1985. I understand that following the surgery in January 1985, subsequent treatment of Mr. Oswald while he was at Warkworth or otherwise serving his sentence, was provided by Dr. Fung, Dr. Psutka, and Dr. Hellen, as well as Drs. Binder, Derumaux and Dosaj, all at the expense of the defendant. In any event, no evidence of any special damages was presented at trial or in post-trial submissions. There is no basis to consider any special damages.

     General damages pleaded in the statement of claim are in the amount of $100,000.00, an amount urged in written post-trial submissions "to address the area of pain and suffering for eleven years and continuing". Another aspect of general damages, not specifically pleaded but referred to in the plaintiff's testimony at trial and in written submissions after trial, concerns a claim for loss of income. Further, but only in written submissions after trial, a claim for punitive damages is raised.

     As for general damages, the claim for pain and suffering, if damages were to be awarded, in light of awards in other cases for injury to the mouth, and to the jaw, especially TMJ problems, in my opinion should be fixed in the amount of $15,000.00. That includes the pain and suffering in the following respects. First, is that in relation to the mouth, arising from the surgery which was not necessary for dental purposes, including the swelling and numbness of the tongue, and the infection of the submandibular gland and its atrophic condition after the duct from the gland was obstructed by scar tissue, all of which was addressed, so far as it could be, by September 1985. There is not evidence of continuing pain from these sources thereafter. Second, is the continuing pain and difficulties including that from resulting surgery and dental work to address the glandular infection in July 1985, and later, in 1986, to stabilize the jaw as a result of aggravated TMJ problems. The TMJ problems were substantially addressed by Drs. Psutka and Hellen in 1985-86-87, but the plaintiff has continued to have pain, and further work by Dr. Mulrooney or another specialist in TMJ problems may still prove to be advisable. As I have already commented, if further work of this sort is advised by specialists I would urge that would be paid for by Her Majesty on an ex gratia basis.

     As for the claim for loss of earnings, at trial the plaintiff spoke of the interruption to his life, in his studies, in music, in weight training, interruptions which arose from the operation and ensuing pain and suffering, and he spoke of his inability after his release from Warkworth to renew his earlier experience in driving in the trucking industry. The last activity he considered foreclosed to him by the inevitable roughness from highway driving of tractor trailers which he anticipated would aggravate his continuing TMJ problems and pain. Of his possible loss of earnings the claimant in written submissions says:

...At the very least...I've lost potential income as a tractor trailer driver, in the amount of 300,000 dollars net income based on, on a further working career, after my release from prison of (15) to (20) years.

No other evidence of such loss is adduced. In my opinion, that is insufficient to establish this as a probable loss. It is an estimated potential which is merely speculative and cannot provide the basis for an award of lost income attributable to any negligence in connection with the surgery of January 1985.

     In written submissions the plaintiff also urged that punitive damages be awarded to ensure that the defendant and her agents are made aware that treatment of this sort for any inmate is clearly unacceptable. Punitive damages are suggested in the sum of "200,000 thousand dollars". No mention is made of punitive damages in the pleadings, nor were such damages specifically referred to at trial. There is no basis in evidence for the award of any punitive damages. As I noted in Babyn v. Canada, [1993] F.C.J. No 1336, 71 F.T.R. 176, punitive damages are not awarded against the Crown unless there be extraordinary circumstances (see MacGuigan J.A., Canada v. Peeters, (1993) Court file A-721-92, [1993] F.C.J. No. 1146 (F.C.A.)). As defined by McIntyre J. in Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085 at 1107-8; 94 N.R. 321 at 344, speaking for the majority of the Supreme Court of Canada:

...punitive damages may only be awarded in respect of conduct which is of such a nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. ...the conduct must be extreme in its nature and such that by any reasonable standard, it is deserving of full condemnation and punishment.

No conduct of that order is here established. Negligence here arose, from faulty judgment, not from harsh, vindictive, reprehensible and malicious action. There is no basis for punitive damages.

     As for pre-judgment interest, if damages were here awarded, interest would be in accord with s. 31 of the Crown Liability and Proceedings Act, as amended by S.C. 1990, c. 8, s. 31. By that provision, prejudgment interest would be in accord with the law applied in proceedings between subject and subject in Ontario, but applicable only from 1 February 1992 when the provision for prejudgment interest came into force.

Conclusion

     In the result, the plaintiff's action against Her Majesty is dismissed since, in the circumstances of this case, the Crown is not liable in damages under the Crown Liability and Proceedings Act for damages caused by negligence of the dentist retained as an independent contractor to provide professional dental services for inmates at Warkworth Institution.

     If I am wrong in my application of the law and Her Majesty is deemed liable for the negligence of Dr. Binder, whom I have found was negligent in undertaking the oral surgery here rendered to the plaintiff and that negligence was the cause of pain and suffering of the plaintiff, I would assess general damages in the amount of $15,000.00 Those damages relate to pain, suffering and general discomfort arising from the surgery itself, from consequent infection of the left submandibular gland and its duct, and later atrophy of the gland, from aggravated problems with regard to temporomandibular joints (TMJ), and from subsequent surgery and other treatment undertaken to examine and redress, so far as possible, the circumstances precipitated by the surgery performed by Dr. Binder in January 1985.

     No other damages are established.

     If damages were to be awarded the plaintiff would be entitled to prejudgment interest on the amount awarded in accord with s. 31 of the Crown Liability and Proceedings Act.

     Since the plaintiff has not succeeded in this action, the Crown is entitled to costs if it insists upon them. They were asked for in the Defence, filed in 1986, but the matter of costs was not addressed in submissions on behalf of the defendant. I invite the Crown to consider foregoing its claim for costs, in view of circumstances here found that, while it is not responsible in damages from negligence found on the part of a dentist retained by the Crown as an independent contractor, that negligence did cause harm to the plaintiff. Any recovery by the plaintiff, if he should be successful in his action against Dr. Binder in the Ontario Court, is not likely to include any expense he may incur for costs in this action.

     I would be remiss if I did not acknowledge the manner in which Mr. Oswald presented his case to the Court. He was acting on his own behalf, without legal training, but with intermittent advice from counsel who was not counsel of record and who played no role as a participant at trial. The assistance of Mr. Oswald and that of counsel for Her Majesty to the Court in the presentation of evidence and particularly in written submissions following trial is acknowledged.

     ____________________________________

     JUDGE

OTTAWA, Ontario

February 24, 1997.