Rizzolo v. Brett, 2010 BCCA 398
This was an appeal by ICBC representing the at fault driver of a $562,103.30 court award due to a fractured tibia and fibula resulting in chronic pain from a motorcycle accident. The injury case being appealed is indexed at 2009 BCSC 732. One of the arguments that was rejected by the court was that the injury claimant was at fault for not trying to get better. However the trial judge pointed out that many requests were made to ICBC to provide funding for physiotherapy but those requests had gone unanswered and, at trial, unexplained.
At trial the judge found that the injury claimant rode his motorcycle through the intersectionof 216th Avenue and the Lougheed Highway on a green light. She found that the at fault driver turned left in front of the injury claimant and, in doing so, struck the claimant on the left leg, fracturing his tibia and fibula.
ICBC lawyers on behalf of the at fault driver argued that the injury claimant should be found to be at fault because the other driver had the right of way. The court of appeal disagreed and dismissed this part of the appeal.
The Court of Appeal also found that the trial judge was not wrong in her assessment of the money award. There was evidence to support all her findings of fact and the awards of damages were not inordinately high.
The appeal in respect to the money award is against the awards for pain and suffering, loss of future earning capacity and special damages. The judge assessed damages on the basis that the injury claimant suffered from debilitating chronic pain that had a devastating impact on all aspects of his life. Notwithstanding that the injury claimant returned to his usual full-time employment after the accident, the trial judge found that there was a reasonable possibility that he would not be able to continue to work indefinitely. She also concluded that the injury claimant was unable to continue to supplement his full-time income with additional part-time jobs as he had done before the accident.
The court therefore reaffirmed the following court award:
Pain and Suffering $125,000.00
Past wage loss $ 69,368.00
Loss of earning capacity $250,000.00
Cost of future care $106,574.00
Special damages $ 11,161.30
Total $562,103.30
Posted by Mr.Renn A. Holness
Issue: Should ICBC be punished by the court for refusing to pay for recommended treatment?
