Rizzolo v. Brett, (2010) 292 B.C.A.C. 33 (CA)

• Judge: Frankel, Tysoe and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 28, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 292 B.C.A.C. 33 (CA);2010 BCCA 398

Rizzolo v. Brett (2010), 292 B.C.A.C. 33 (CA);

    493 W.A.C. 33

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. SE.013

Dennis Michael Rizzolo (respondent/plaintiff) v. Josephine Clara Brett (appellant/defendant)

(CA037253; 2010 BCCA 398)

Indexed As: Rizzolo v. Brett

British Columbia Court of Appeal

Frankel, Tysoe and Garson, JJ.A.

September 14, 2010.

Summary:

The plaintiff sued the defendant for damages for injuries he sustained after he was struck by the defendant's vehicle. The plaintiff was driving a motorcycle. His left leg was struck, and his tibia and fibula were fractured.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 732, allowed the action and awarded $562,103.30 in damages, including $125,000 non-pecuniary damages and $250,000 for loss of earning capacity. The defendant appealed liability and damages.

The British Columbia Court of Appeal dismissed the appeal.

Damage Awards - Topic 11

Injury and death - Continuing pain - The plaintiff sued the defendant for damages for injuries he sustained after he was struck by the defendant's vehicle - The plaintiff was driving a motorcycle - His left leg was struck, and his tibia and fibula were fractured - The British Columbia Court of Appeal upheld an award of $125,000 non-pecuniary damages - The trial judge did not assess damages on the basis of a well-resolved fracture - Rather, the award for non-pecuniary damages was largely based on the trial judge's conclusions that the plaintiff suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life - See paragraphs 26 to 40.

Damage Awards - Topic 142

Injury and death - Leg injuries - Fracture - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The plaintiff's left leg was struck and his tibia and fibula were fractured in a motor vehicle accident - The trial judge awarded $106,574 for the future care costs, including $30,000 for physiotherapy - The British Columbia Court of Appeal upheld the future care award - The court held, inter alia, that "It was open to the trial judge to conclude that even if the [plaintiff] did not need physiotherapy for strengthening or for his range of motion, he may nonetheless need it for balance, pain and inflammation control, particularly if he was remaining active. It was also open to her to simply prefer the evidence of Dr. Low and Ms. Boniface, who both gave evidence supporting physiotherapy. On either basis, the trial judge's finding cannot be described as an error in fact or law" - See paragraph 78.

Damage Awards - Topic 489.1

Injury and death - General damage awards - Cost of future household and property maintenance - The plaintiff's left leg was struck and his tibia and fibula were fractured in a motor vehicle accident - He suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life - A trial judge awarded $106,574 for the cost of future care - This amount was intended to cover: ongoing medication, including Celebrex, Amitriptyline, Advil, Tylenol 3, periodic cortisone injections ($18,000); physiotherapy ($30,000); psychological intervention ($2,350); occupational therapy follow-up and vocational support ($3,500); some home management assistance ($50,000); heat and ice packs ($24); and orthotics ($2,700) - The defendant said that there was no evidence to support the trial judge's assessment of future care costs except for: Celebrex ($15,622); cortisone shots ($2,934); orthotics for work and home ($4,818) (total: $23,374) - The British Columbia Court of Appeal upheld the future care award - The trial judge found, inter alia, that the awards for home management, psychological intervention and occupational therapy were supported by the evidence - See paragraphs 79 to 83.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff's left leg was struck and his tibia and fibula were fractured in a motor vehicle accident - He suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life - The trial judge awarded him $250,000 for loss of earning capacity - The British Columbia Court of Appeal held that the judge made no palpable or overriding error in making the award - She did not err by basing her assessment on the assumption that the defendant would have continued both his full-time and part-time jobs until age 70 - Her reasons reflected the evidentiary possibilities that the plaintiff, aged 47 at trial, might have continued working in some capacity beyond age 65 - The trial judge seemed to have accepted that the plaintiff could not continue his part-time work and, indeed, he had not - The annual loss associated with the part-time employment was estimated at $11,150 - Using the multiplier, the loss of just his part-time work to age 65 was about $170,000 - There were positive and negative contingencies - See paragraphs 47 to 71.

Practice - Topic 4558

Discovery - Production and inspection of documents - General - Jurisdiction of judge or court respecting - [See Practice - Topic 9031 ].

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact by a trial judge - The plaintiff was proceeding straight through an intersection - The defendant, coming from the opposite direction, turned left into him - The plaintiff and defendant testified that the plaintiff proceeded into the intersection on a green light, as did the independent witness who was behind the plaintiff - The other independent witness (Hancock), who was behind the defendant before she entered the intersection, testified that the plaintiff entered the intersection on a yellow light - The trial judge allowed the action, holding that the plaintiff entered the intersection on a green light - On appeal, the plaintiff submitted that Hancock's evidence should have been accepted - The British Columbia Court of Appeal disagreed - There was ample evidence to support the trial judge's findings of fact - It was remarkable that the defendant would rest her appeal on an argument that relied upon a finding that she was mistaken in her own testimony - See paragraphs 11 to 25.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiff sued the defendant for damages for injuries he sustained after he was struck by the defendant's vehicle - The trial judge awarded the defendant $250,000 for loss of earning capacity, inter alia - The defendant appealed - At the outset of the hearing, she applied for an order that the plaintiff disclose documents pertaining to his employment since the trial - If that order was granted, she would then apply to adjourn the appeal in order to obtain the documents and apply to have them admitted as evidence - The British Columbia Court of Appeal dismissed the production application where the conclusions that the defendant contended should be drawn from her proposed new evidence were clearly and persuasively refuted by the plaintiff in an affidavit and, in any event, did not rise to the necessary factual standard that would properly form the basis for a successful application for admission of new evidence - As the post-trial developments were not outside the possibilities anticipated by the judge in her reasons, the documents would not have been admissible - Accordingly, there was no basis on which to order their disclosure - See paragraphs 41 to 46.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Forsyth v. Pender Harbour Golf Club Society, [2006] B.C.T.C. 1108; 2006 BCSC 1108, refd to. [para. 30].

McGrath v. Meise et al., [2005] B.C.T.C. 1333; 2005 BCSC 1333, refd to. [para. 30].

Blake v. Buy-Low Foods Ltd. et al., [2002] B.C.T.C. 1647; 2002 BCSC 1647, refd to. [para. 30].

Wilson v. Ham, [2004] B.C.T.C. Uned. 358; 2004 BCSC 842, refd to. [para. 30].

Klassen v. Canada (Attorney General) et al., [2004] B.C.T.C. 479; 2004 BCSC 479, refd to. [para. 30].

Kralik v. Mount Seymour Resorts Ltd. et al., [2007] B.C.T.C. Uned. 126; 2007 BCSC 258, revd. in part (2008), 252 B.C.A.C. 95; 422 W.A.C. 95; 78 B.C.L.R.(4th) 313; 2008 BCCA 97, refd to. [para. 30].

Wormell v. Hagen, [2009] B.C.T.C. Uned. 1166; 2009 BCSC 1166; 2009 BCSC 1530, refd to. [para. 30].

Nicoll v. Strata Plan 1611, Owners, [2005] B.C.T.C. 770; 2005 BCSC 770, refd to. [para. 30].

Graham v. Lee, [2004] B.C.T.C. 1287; 2004 BCSC 1287, refd to. [para. 30].

Bertrand et al. v. Bertrand (1999), 20 B.C.T.C. 22; 1999 CarswellBC 2018 (S.C.), refd to. [para. 30].

O'Connor v. James, [2009] B.C.T.C. Uned. 1119; 2009 BCSC 1119, refd to. [para. 30].

Meise v. Whiting, [2002] B.C.T.C. 352; 2002 BCSC 352, refd to. [para. 30].

Moses v. Kim et al., [2007] B.C.T.C. Uned. 771; 2007 BCSC 1388, refd to. [para. 32].

Funk v. Carter, [2004] B.C.T.C. 866; 2004 BCSC 866, refd to. [para. 33].

Moore v. Brown, [2009] B.C.T.C. Uned. 190; 2009 BCSC 190, refd to. [para. 34].

Dufault v. Kathed Holdings Ltd. et al., [2007] B.C.T.C. Uned. 84; 2007 BCSC 186, refd to. [para. 35].

Mosher v. Bitonti - see Mosher v. Ferrari et al.

Mosher v. Ferrari et al., [1998] B.C.T.C. Uned. 134; 1998 CanLII 5186 (S.C.), refd to. [para. 36].

Moskaleva v. Laurie (2009), 272 B.C.A.C. 164; 459 W.A.C. 164; 2009 BCCA 260, refd to. [para. 38].

Nance v. British Columbia Electric Railway, [1951] A.C. 601 (P.C.), refd to. [para. 38].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 2008 BCCA 392, refd to. [para. 43].

North Vancouver (District) v. Lunde - see North Vancouver (District) v. Fawcett et al.

North Vancouver (District) v. Fawcett et al. (1998), 110 B.C.A.C. 137; 178 W.A.C. 137; 60 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 43].

Perren v. Lalari (2010), 285 B.C.A.C. 98; 482 W.A.C. 98; 2010 BCCA 140, refd to. [para. 49].

Pett v. Pett (2009), 271 B.C.A.C. 149; 458 W.A.C. 149; 2009 BCCA 232, refd to. [para. 55].

Counsel:

M-H. Wright and J.W. Joudrey, for the appellant;

D.G. Cowper, Q.C., and M.A. Kazimirski, for the respondent.

This appeal was heard at Vancouver, B.C., on May 28, 2010, by Frankel, Tysoe and Garson, JJ.A., of the British Columbia Court of Appeal. Garson, J.A., delivered the following reasons for decision for the court on September 14, 2010.