IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111205

Docket: S19079

Registry: Chilliwack

Between:

Cindy Marie Reilander

Plaintiff

And:

Colin Campbell

Defendant

Before: The Honourable Mr. Justice
Leask

Oral Reasons for Judgment

[1]            
THE COURT: Ms. Reilander was driving her
motor vehicle on July 29, 2006. She was stopped, waiting to make a left turn
into a parking lot, when her vehicle was struck from behind by a motor vehicle
driven by Mr. Campbell. The defendant has admitted liability for the accident.
A trial was held to determine the quantum of damages.

[2]            
The defendant
readily conceded that Ms. Reilander suffered soft tissue injury as a
result of the accident. The principal issue at the trial related to a
persistent and debilitating cough that Ms. Reilander developed following
the accident. The plaintiff’s position was that the cough was caused by the
accident. The defendant’s position was that the cough was not caused by the
accident. There was no real dispute between the parties that the persistent
coughing attacks had serious adverse consequences for Ms. Reilander.

EVIDENCE

[3]            
Here I will
summarize the evidence of the plaintiff and her family members. Other relevant
evidence is discussed in the analysis section of these reasons.

[4]            
Ms. Reilander
is 47 years old, was born in Calgary, and moved to British Columbia when she
was 13 years old. She was married in 1985 and has three children, born in 1989,
1993 and 1997.

[5]            
Her post-secondary
education consisted of taking a course to qualify as a dental assistant/receptionist.
After completing her practicum in Burnaby, she worked for a dentist in Kamloops for one year and then for a dentist in the Burnaby/Port Coquitlam area until she
became pregnant with her first child. Her plan was to resume working in this field
after her children were old enough.

[6]            
She testified that
before the motor vehicle accident on July 29, 2006, she was a very organized
and active person. She made all the family meals, cleaned and maintained the
household, homeschooled all three children, and was an active participant in
her religious duties as a Jehovah’s Witness.

[7]            
The defendant
having admitted liability for the collision, her description of the accident is
not relevant to the issues I must resolve.

[8]            
Her recollection
of the immediate aftermath of the accident was feeling really shaky and
emotional and being anxious to get home. Her neck and shoulder were painful. Her
legs felt “milky.”  She had a headache. On her drive home, she was coughing a
lot. She did not really connect that to the motor vehicle accident, believing it
to be a recurrence of asthma. She used her mother’s Ventolin, but that night it
did not stop the coughing. During the night she coughed a lot. The next morning
she was stiff and hurt. That same morning, she went to a walk-in clinic and
reported that she had been in a car accident and had pain in her neck, left arm
and shoulder. She felt tense and achey.

[9]            
Her cough did not
go away, but she did not associate it with the accident. She thought it was
asthma, although use of the Ventolin, previously successful in reducing asthma
symptoms, did not seem to be working.

[10]        
She visited her
doctors at the clinic many times, complaining of pain in her neck and shoulder.
She recalls that when she mentioned her recurrent coughing the doctors told her
that it was not connected to her accident, and they did not want to talk about
it when they recorded accident-related symptoms.

[11]        
Mrs. Reilander
testified that she had asthma most of her life, brought on by exercise or cold.
When she used an inhaler, normally one or two puffs and the wheezing would go
away. When she used the asthma inhaler Ventolin after the accident, the
coughing did not stop. Doctors prescribed other medication. The coughing still
did not stop.

[12]        
She saw her family
physician and a specialist. Nobody found a cure for her coughing or linked it
to the motor vehicle accident until she saw Dr. Matishak on October 20,
2009. Dr. Matishak formed the opinion that she suffered disc herniation in
the motor vehicle accident and that disc protrusion, exerting pressure on her oesophagus,
was the cause of her persistent cough. Medically speaking, this was a new idea.
It will be discussed more fully later in these reasons.

[13]        
Ms. Reilander
described the effects of four years of a persistent and incurable cough, as
well as the pain and suffering in her head, neck and shoulder. She was unable
to look after her family in her customary fashion. She could not make meals,
clean the home or manage to home-school her children as she had been used to
doing. Because of her night time coughing, her husband was unable to sleep in
the same bed with her. This led to a cessation of their normal sex life and
difficulty and tension in their relationship.

[14]        
She had been a
regular attender, at least twice a week, at Kingdom Hall meetings, a
significant part of her religious life. Because her coughing fits were so
intense and disruptive, she was forced to discontinue attending these meetings.
Part of the duties of her religion included door-to-door proselytizing. This
too she had to give up because of her incessant coughing.

[15]        
The coughing
prevented her from any possible return to work as a dental assistant. She did
obtain work as a receptionist for a chiropractor. She was dismissed from this
employment after four months because of her persistent coughing fits.

[16]        
She tried to work
at various jobs because of the state of the family’s finances. The only job she
was able to maintain for any length of time was a job cleaning offices where
she was partnered with her daughter. She was only able to do “light duty”
cleaning, with her daughter doing all of the heavy lifting.

[17]        
Essentially in the
four years following the accident and prior to the operation conducted by Dr. Matishak,
the after-effects of the accident substantially diminished her capacity to
function as a wife, mother, homemaker and employee. It prevented her enjoying
the leisure activities she had previously engaged in and substantially
diminished her participation in the religious activities she had previously
considered a central aspect of her life.

[18]        
After the
operation, the changes included a drastic reduction in the amount of coughing. She
was able to sleep at night, and she began to be able to sleep with her husband
again. The coughing was not constant. She still had pain but it was much
reduced. She had more range of motion in her left arm. Her evidence was that
there was a substantial improvement in all of her accident-related symptoms
after the operation, but in the last two months or so before the trial, which
was approximately a year after the operation, things had levelled out.

[19]        
The worst
remaining symptom, in her evidence, was the cough. She was able to return to
the Jehovah’s Witness Kingdom Hall and could speak there in short speeches. She
is able to go there more. She is better able to look after her own personal
grooming, and that relates primarily to the improvement in her left arm. She
can do more cooking and more cleaning. Her evidence is that coughing spells
recur if she is nervous or tries to do too much or if she is excessively warm.

[20]        
Her daughter was
called as a witness. Her daughter confirmed that she was coughing immediately
after the accident. The daughter gave evidence about the cleaning and about her
mother’s substantial reduction in household duties and her effort as the oldest
child to take over those duties.

[21]        
Her husband also
gave evidence confirming that there was coughing in the immediate aftermath of
the accident. In the month following, his evidence was that the cough did not
go away, it got worse. His wife was unable to follow the personal routine that
she had followed previously. He testified that because of her coughing he was
unable to sleep at night, and after the first month or so they started sleeping
separately. That resulted in a cessation of their normal sex life. He also
testified about his wife being unable to attend their regular religious
meetings at Kingdom Hall. She was not able to go door to door. He gave some
evidence about her lack of ability to help in his previously owned business.

ANALYSIS

A.       The Cough

[22]        
The most important
issue in this case is the causation of Ms. Reilander’s persistent cough. To
resolve the issue, it is necessary to assess the credibility of Ms. Reilander
as well as that of her husband and daughter. It is also necessary to examine
carefully the expert opinions of the experts called by both parties.

[23]        
I found Ms. Reilander
to be credible. She gave her evidence in a straightforward, convincing manner. Her
responses to cross-examination questions were appropriate. I did not detect any
exaggeration of her symptoms nor any evasiveness. She could not remember every
detail of the accident nor every event of the five years that separated the
accident from the trial; what she remembered and what she failed to remember
were consistent with an honest person doing her best to recall the past. In
short, I believed her evidence.

[24]        
Similarly, I found
the plaintiff’s husband and daughter to be believable. Neither of them was
called upon to give extensive evidence in this trial. Defence counsel did not
attempt to suggest that they were liars, and there was no evidentiary basis for
any such suggestion. He urged the court to find that they could be mistaken in
their recollections, particularly as it related to the timing of the onset of Ms. Reilander’s
persistent cough. I was not convinced by counsel’s submissions, and I accept
the evidence of both the father and the daughter as it relates to the onset of Ms. Reilander’s
coughing fits.

[25]        
These credibility
findings enable me to find as a fact that Ms. Reilander’s coughing began
almost immediately after the accident and continued as a serious and persistent
problem until Dr. Matishak performed the operation on August 6, 2010. I am
also satisfied Ms. Reilander began experiencing pain and numbness in her
left arm shortly after the accident.

[26]        
Dr. Matishak’s
opinion was that Ms. Reilander:

…
suffered the onset of neck pain, persistent and unremitting cough, and left arm
pain and weakness following the motor vehicle accident of July 29^th,
2006. Radiological investigation revealed a central C5/6 disc herniation. Therefore,
I would opine that the C5/6 disc herniation is a direct result of the motor
vehicle accident of July 29^th, 2006.

[27]        
Dr. Gittens
on the other hand gave as his opinion:

I
am unable to explain the cough on a neurological basis, and my understanding of
the physiology of the cough mechanism would make it unlikely to be origination
[I am sure it meant to say “originated”] from a C5/6 disc herniation.

[28]        
He placed great
weight on Dr. Smith’s clinical notes, including the August 1, 2006
interview with Ms. Reilander in which Dr. Smith’s notes record a
denial of having a cough. Relying on the clinical record, he found no reference
to the cough until January 2007 and gave as his opinion:

If
the clinical data is accurate, then, irrespective of the cause of the cough, I
would find it difficult to relate it to the motor vehicle accident.

[29]        
Even after Dr. Matishak’s
operation and the post-operative changes in Ms. Reilander’s symptoms, he
maintained his view that:

The
anterior component of the disc pathology at C5/6 was not significant enough to
cause major changes in the function of the oesophagus to result in a cough.

He was
also of the view that:

The
motor vehicle accident did not cause cervical spondylosis or disc degeneration.
This clearly predated the motor vehicle accident.

[30]        
Post-operatively,
he continued to believe that Ms. Reilander “did not have an acute disc
herniation as a result of the motor vehicle accident. “  He concluded his
second opinion by saying that:

It
cannot be stated with absolute certainty that Ms. Reilander absent the
motor vehicle accident would have been asymptomatic.

[31]        
In
cross-examination, Dr. Gittens conceded that there was no clinical data
documenting cervical problems pre-accident. He agreed with Dr. Matishak’s
interpretation of the MRI scan. His most important concession was that if she
had a cough immediately following the accident, the accident could have caused
the cough. He also conceded that he did not know how much pain Ms. Reilander
had on July 30, 2006. If she had significant pain, disc herniation was
more probable. He also agreed that left arm pain immediately following the
accident usually, but not always, can be produced by trauma to the C5/6 disc.

[32]        
Taking into
account the facts that I have found based on the evidence given by the
Reilander family and the expert opinions of both Dr. Matishak and Dr. Gittens,
I am satisfied that the plaintiff has demonstrated on a balance of
probabilities that the motor vehicle accident of July 29, 2006 caused a disc
herniation at C5/6 on her cervical spine and that disc herniation was the
principal cause of her persistent and debilitating cough.

B.       DAMAGES

1. Non-Pecuniary
Damages

[33]        
I am satisfied
that the relevant legal principles applicable to this head of damage were well
summarized in the reasons for judgment of Madam Justice Kirkpatrick in Stapley
v. Hejslet, 2006 BCCA 34:

[45]      … I
think it is instructive to reiterate the underlying purpose of non-pecuniary
damages. Much, of course, has been said about this topic. However, given the
not-infrequent inclination by lawyers and judges to compare only injuries, the
following passage from Lindal v. Lindal is a helpful reminder:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation. It
therefore will not follow that in considering what part of the maximum should
be awarded the gravity of the injury alone will be determinative. An
appreciation of the individual’s loss is the key and the "need for solace
will not necessarily correlate with the seriousness of the injury"
(Cooper-Stephenson and Saunders, Personal Injury Damages in Canada
(1981), at p. 373). In dealing with an award of this nature it will
be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case"
(Thornton at p. 284 of S.C.R.).

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment of family, marital
and social relationships;

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that
should not, generally speaking, penalize the plaintiff: Giang v. Clayton).

[34]        
Plaintiff’s
counsel submitted that the award under this heading should be $125,000. The defendant’s
principal submission under this heading of damages, based on the submission
that the plaintiff had not proven that her coughing was caused by the motor
vehicle accident, was that a proper award for non-pecuniary damages was between
$35,000 and $45,000.

[35]        
Invited by the
court to make an alternative submission, assuming that the plaintiff had shown
that the disc herniation was caused by the motor vehicle accident and that the
coughing was in turn caused by the herniation, counsel for the defendant
submitted that the range between $65,000 and $75,000 would be appropriate.

[36]        
Considering the
effect on the plaintiff’s personal life, child-rearing responsibilities,
marital relationship and her ability to participate in the exercise of her
religion, I am satisfied that the plaintiff’s submission is appropriate. I
award the plaintiff $125,000 for non-pecuniary damages.

2. Past
Wage Loss

[37]        
The plaintiff’s
submission under this head of damages is for an award of $41,000. The
defendant’s position is that the award should be between $17,000 and $34,000.

[38]        
During submissions
I challenged plaintiff’s counsel to justify his approach to this head of damage.
He responded by referring me to the evidence of the chiropractor Dr. Clive
McMillan, who employed Ms. Reilander after the accident for a period of
four months as his receptionist. She worked for him 24 hours a week at $15 an
hour. He was firm in his evidence that the only reason he terminated her
employment was her coughing fits. Based on his evidence, I am satisfied that a
proper award under this heading is $40,000.

3. Future
Loss of Earning Capacity

[39]        
I found two cases
cited to me to be helpful. First, Rosvold v. Dunlop, 2001 BCCA 1:

[9]        Because
damage awards are made as lump sums, an award for loss of future earning
capacity must deal to some extent with the unknowable. The standard of proof to
be applied when evaluating hypothetical events that may affect an award is
simple probability, not the balance of probabilities: Athey v. Leonati,
[1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities,
and risks must all be considered, so long as they are a real and substantial
possibility and not mere speculation. These possibilities are to be given
weight according to the percentage chance they would have happened or will
happen.

[10]      The
trial judge’s task is to assess the loss on a judgmental basis, taking into
consideration all the relevant factors arising from the evidence: Mazzuca v.
Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121,
aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors
may be relevant can be found in Parypa v. Wickware, supra, at para. 31;
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

[1]        whether the plaintiff has
been rendered less capable overall from earning income from all types of
employment;

[2]        whether the plaintiff is
less marketable or attractive as an employee to potential employers;

[3]        whether the plaintiff has
lost the ability to take advantage of all job opportunities which might
otherwise have been open to him, had he not been injured; and

[4]        whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market.

[40]        
Second, Perren
v. Lalari, 2010 BCCA 140 at para. 32:

A
plaintiff must always prove, as was noted by Donald J.A. in Steward,
by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[41]        
Under this heading
the plaintiff seeks $250,000.

[42]        
Counsel for the
defendant says that even fully accepting Dr. Matishak’s evidence, the
proper award under this heading should be zero. His submission is based on Dr. Matishak’s
opinion letter of July 5, 2010, prior to performing the operation on Ms. Reilander.
In that letter Dr. Matishak predicted that it would take between three to
six months after surgery for her to “obtain complete resolution of her
symptoms.” Counsel for the defendant reasons that since approximately 15 months
having elapsed between the completion of Dr. Matishak’s successful
operation and the trial of this matter, any continuing symptoms of coughing
must be unrelated to the disc herniation and hence not caused by the motor
vehicle accident.

[43]        
Dr. Matishak’s
opinion on this question was provided in his second opinion letter, dated
August 29, 2011. In that letter he stated:

But
for the accident of July 29, 2006, Ms. Reilander would still be employed
as a dental assistant, would not suffer a chronic cough, and would be pain free.
My prognosis with regards to her situation is guarded. She has made significant
improvement with respect to her neck pain and left arm pain and weakness and
her chronic cough is reduced. Nonetheless, she harbours a partial disability
with regards to this. I do not think she will become completely symptom free
from injuries she suffered in the motor vehicle accident of July 29, 2006.

[44]        
Knowing the
importance of this question, I carefully observed Ms. Reilander during the
two trial days that she attended court. During the first day, in which she sat
in the gallery observing the court proceeding, she did not cough at all. During
the second day, while giving her own evidence, she coughed first at 11:45 in
the morning; ten minutes later she coughed again; at noon she coughed for the
third time; court broke for lunch at 12:15 while the plaintiff was experiencing
a mild bout of coughing; at 2:20 in the afternoon she coughed again. I consider
that what I observed in the courtroom was completely consistent with the
plaintiff’s evidence concerning her post-operative situation:  her coughing is
substantially reduced but recurs when she is nervous or overheated.

[45]        
In the
circumstances, I accept Dr. Matishak’s opinion and prognosis as accurate. Ms. Reilander
has suffered a real loss of future earning capacity. In particular I find that
she will never be able to work as a dental assistant again. In my view the
proper assessment of this head of damage is an award of $150,000.

4. Special
Damages

[46]        
Counsel agreed
that there were special damages of $250.

5. Summary
of Award

C.       Costs

[Submissions on Costs]

[47]        
THE COURT:  The
plaintiff should have her costs up to the date of the formal offer on Scale B. After
careful consideration, although it is a close question, I think this is one of
those cases where the plaintiff is also entitled to double costs after the
offer. I do not mean that as any criticism of counsel who conducted the case
for the defence. I cannot remember if I said this at the time, but I thought
both counsel did an excellent job of presenting a case fairly and expeditiously,
so thank you both.

[48]        
MR. PICI: 
Thank you, My Lord.

P.
LEASK, J.