Gignac v. Rozylo (2012), 326 B.C.A.C. 299 (CA);
554 W.A.C. 299
MLB headnote and full text
Temp. Cite: [2012] B.C.A.C. TBEd. AU.025
Robert Gignac (respondent/plaintiff) v. Allen Rozylo, Henry Alexander Rozylo and The Estate of Henry Alexander Rozylo by its unknown personal representative (respondents/defendants) and Insurance Corporation of British Columbia (appellant/third party)
(CA038159; 2012 BCCA 351)
Indexed As: Gignac v. Rozylo et al.
British Columbia Court of Appeal
Kirkpatrick, Neilson and Bennett, JJ.A.
August 17, 2012.
Summary:
The plaintiff was injured in a motor vehicle accident. The defendant admitted liability. The trial judge awarded damages, including $115,975 for cost of future care. The Insurance Corp. of British Columbia appealed the award of damages for cost of future care.
The British Columbia Court of Appeal allowed the appeal and reduced the award for the costs of future care to $70,400.
Damage Awards – Topic 489
Injury and death – General damage awards – Cost of future care and treatment – The plaintiff was injured in a motor vehicle accident – The defendant admitted liability – The trial judge awarded damages, including $115,975 for cost of future care – The Insurance Corp. of British Columbia appealed the award of damages for costs of future care – It argued that the evidentiary link between the medical evidence and the reasonable necessity of most of the items claimed was absent, and that the award should be substantially reduced – The British Columbia Court of Appeal found that the trial judge erred in his assessment under this head of damages – The court allowed the appeal and reduced the award for the cost of future care to $70,400 – The court found that part or all of the awards for bathroom safety aids, pain management aids, rehabilitation aids, certain medical/professional services, household accessories, devices to assist with hobbies and home renovations were not “reasonably necessary on the medical evidence” – See paragraphs 27 to 47 – Contingencies had been taken into consideration already for general age-related dysfunction – There was no error in not applying an additional reduction for general contingencies – The evidence supported a specific contingency reduction for the psychological counselling as the plaintiff was only “considering” going to counselling, despite the fact the evidence was clear that it would be of considerable assistance to him – The court applied a 20% reduction to this award only – See paragraphs 48 to 54.
Damages – Topic 1556
General damages – General damages for personal injury – Calculation and method of assessment – Contingencies – Deduction for – [See
Damage Awards – Topic 489
].
Cases Noticed:
Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 28].
Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), affd. (1987), 49 B.C.L.R.(2d) 99 (C.A.), refd to. [para. 30].
Aberdeen v. Langley (Township) et al. (2008), 261 B.C.A.C. 116; 440 W.A.C. 116; 2008 BCCA 420, refd to. [para. 30].
Gregory v. Insurance Corp. of British Columbia et al. (2011), 303 B.C.A.C. 92; 512 W.A.C. 92; 2011 BCCA 144, refd to. [para. 31].
Coulter v. Ball et al. (2005), 211 B.C.A.C. 110; 349 W.A.C. 110; 2005 BCCA 199, refd to. [para. 40].
Graham et al. v. Rourke (1990), 40 O.A.C. 301; 74 D.L.R.(4th) 1 (C.A.), refd to. [para. 52].
Counsel:
M.-H. Wright, for the appellant;
M.A. Sheane and C.D. Starkey, for the respondent.
This appeal was heard at Vancouver, B.C., on March 23, 2012, by Kirkpatrick, Neilson and Bennett, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bennett, J.A., on August 17, 2012.
