IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140425

Docket: M104065

Registry:
Vancouver

Between:

Rich
Zajaczkowski

Plaintiff

And

Breedon
Dal Grauer and
Regency Infinity Nissan Inc.

Defendants

Before:
The Honourable Mr. Justice Macintosh

Reasons for Judgment

INTRODUCTION

[1]            
The Plaintiff, Rich Zajaczkowski, seeks damages of between $1.2 million
and $4.4 million arising from a motor vehicle accident.  Liability is not in
issue.

[2]            
Mr. Zajaczkowski’s truck was rear-ended.  The resulting impact was
minor.  While the case authorities recognize that a small accident can result
in serious injury, generally, that will not be the case.

THE ACCIDENT

[3]            
On September 19, 2008, Mr. Zajaczkowski was driving his Dodge Ram
truck eastbound on Highway 1 in Burnaby, near the Gaglardi exit.  It was
between 5:00 and 6:00 p.m., and the traffic was stop-and-go.  His vehicle was
rear-ended by a small sedan driven by the Defendant, Breedon Grauer.  The
Plaintiff was wearing his seatbelt and he did not hit any part of his truck’s
interior as a result of the impact.  The air bags did not deploy.  After the
accident, the Plaintiff and Mr. Grauer got out of their vehicles and
exchanged the usual information by the side of the road.  No other vehicles
stopped and neither police nor ambulance attended.

[4]            
Mr. Zajaczkowski is unclear as to whether his truck was stopped at
the time it was hit, or whether, instead, it was moving, at perhaps up to
30K/hour.  He gave different estimates on that point to different people at
different times.

[5]            
Mr. Zajaczkowski is also unclear in recalling whether he felt any
pain or discomfort the day of the accident.  His testimony on that point as
well was inconsistent.

[6]            
The Defendant Grauer described the accident as being a very small one. 
He had been idling in the stop-and-go traffic.  He believes about two seconds
passed from the time he took his foot off the brake until impact with
Mr. Zajaczkowski’s truck.  He cannot recall for certain, but he does not
believe he had even moved his foot to the gas pedal at the time of impact. 
Mr. Grauer was uninjured from the accident and the Plaintiff did not
indicate to him that the Plaintiff suffered any injury either.

[7]            
Mr. Grauer testified that the only damage to his car was a small
indentation in the front, plastic bumper, matching the end of the trailer hitch
on the Plaintiff’s truck.  He had rented his car from the corporate defendant. 
He paid for the car repair and recalls that the bill was around $400 – $800. 
The photographic evidence shows no damage I could see to the Plaintiff’s
truck.  The available evidence indicates that the repairs to his truck cost in
the range of $1,500 – $2,000.

[8]            
A few days after the accident, Mr. Zajaczkowski did feel pain in
his low back.  His persistent lower back pain is the complaint which drives
this lawsuit.

THE PLAINTIFF’S CLAIMS

[9]            
The Plaintiff claims damages under the following headings, with the
range of damages claimed shown beside each heading:

THE
PLAINTIFF’S CREDIBILITY

[10]        
The Plaintiff admitted frequently during the trial that his memory is
poor.  He demonstrated that, in part, by his poor recollection of his earnings,
which are almost entirely undocumented, and his poor recollection of when and
to what extent he has worked or been able to work since the accident.

[11]        
When the Plaintiff spoke about his education, he gave no reliable
evidence as to how far he went in school.  In his evidence in chief, he said
more than once that he obtained the equivalent of either grade 10 or grade 12,
he was not sure which.  In cross-examination, when asked whether he in fact went
only as far as grade 9, he did not know.  On discovery, he thought it was grade
9.  He told one of his examining physicians that he had completed grade 8.  He
told another that he has a college education.  Mr. Zajaczkowski’s
education is of only indirect relevance to his claim, but I found his not
knowing what formal education he has to be of concern in the assessment of his
credibility.

[12]        
More concerning in assessing the Plaintiff’s credibility is evidence he
gave involving a prospective client, a Ms. Christina Balano, evidence
directly relevant to his claim, which more directly undermines his
credibility.  I address that evidence at the end of the discussion under the next
heading.

THE PLAINTIFF’S WORK

[13]        
As a teenager, in Canada, the Plaintiff acquired some carpentry skills. 
But he moved to Asia in 1995, when he was about 22, and while there, until
2006, he gained no further carpentry experience.  Instead, he began to participate
in marketing what are called Herbalife health products.

[14]        
In Asia, in the course of his work, Mr. Zajaczkowski met the woman
he later married.  He and Mrs. Zajaczkowski had a son, and the family of
three moved back to Canada, to the Lower Mainland, in 2006.

[15]        
Mr. Zajaczkowski started work here as a home building contractor,
and it is lost earnings from his diminished capacity to do that work which
forms the basis for his past and future lost earnings claims.

[16]        
Mr. Zajaczkowski builds, renovates and repairs floors, bathrooms,
kitchens and other rooms in people’s houses.  Tiling work is his specialty.  He
is a skilled craftsman, particularly in tiling.  He is a perfectionist, and
proud of his work.

[17]        
Mr. Zajaczkowski testified about his plans to buy houses, fix them
up, and sell them at a profit, and his plans to build houses from scratch.  He
implied that the accident frustrated those ambitions.  But a claim based on
plans alone, which were never realized in the past, needs to be scrutinized
with particular care.  Further, there was no evidence to show that such work
would have been more lucrative than the renovation work Mr. Zajaczkowski
was already doing at the time of the accident.  For those reasons, I do not
base my analysis on lost opportunities to build houses or to buy, renovate and
re-sell houses.  The claim is to be assessed based on Mr. Zajaczkowski’s
work as a home building contractor, doing the sort of work he was doing when he
was injured in the accident.

[18]        
A problem Mr. Zajaczkowski faces in advancing his claim stems from
his concession, supported by the evidence, that his business has improved, and
earned him more money since the accident than before.

[19]        
The available documentary evidence indicates that in 2007, the Plaintiff
earned gross revenue, from five contracting jobs, totalling approximately
$27,000.  He testified that he is paid in cash for as much as one-half of his
work, and such receipts are not documented.  On that basis, perhaps the
Plaintiff’s gross revenue in 2007 was approximately $54,000.

[20]        
The income and revenue figures referenced above, and below, stem from
the Plaintiff’s work as a home renovator.  They do not include his royalties
from Herbalife.  He testified that he receives between $70,000 and $80,000 U.S.
per year in Herbalife royalties.

[21]        
For 2008, the Plaintiff’s T2 return shows revenue of $71,330 from
renovation work.  For 2009, that number changed to $82,974, and to $150,098 in
2010.  In 2011, renovation work generated approximately $130,000.  His income
from that work in 2012 was $177,000 in cheques, plus an unknown but perhaps
equal amount of $177,000 for work when he was paid in cash.

[22]        
These numbers were found in the evidence, but were difficult to locate. 
The Plaintiff has no ledger or any other document organized to record his
income stream, even approximately.  His testimony was vague in the extreme. 
Repeatedly, Mr. Zajaczkowski told the Court that it is all in the hands of
his accountant, who is reorganizing his books.  His accountant was not called
to testify.

[23]        
The basis for the Plaintiff’s lost income claims is that before the
accident he earned between $400 and $1,000 a day and worked six days a week. 
Part of the difficulty is that there is no documentation whatever to back up those
estimates, and the available documentary evidence supported only the numbers
for revenue and income as set out above.

[24]        
The fact that damages may be difficult to ascertain does not absolve a
court from the responsibility of determining damages as best the evidence
allows.  However, it must be remembered, as well, that the Plaintiff bears the
onus throughout, on the balance of probabilities, of proving, in this case,
that the accident diminished his earning capacity.  I am unable to reach that
conclusion on the evidence which has been presented.

[25]        
The Plaintiff’s problem is that there is no reliable evidence from which
to conclude that business would have been even better than it is now, but for
the accident.  I accept that the Plaintiff has suffered pain from the accident,
for which he should and will receive damages for pain and suffering, but the
Plaintiff has grown the business and kept working successfully through his
difficulties, such that I cannot see where he has proved diminished earning
capacity stemming from the accident.

[26]        
The Plaintiff called three witnesses who testified about his diminished
energy and increased pain after the accident, Bill McCance, Pawel Dziekciowski
and Brent Sands.  Mr. McCance is a contractor who has employed the
Plaintiff many times.  Mr. Dziekciowski is a friend of the Plaintiff, who
has both employed him and co-ventured with him on renovation work. 
Mr. Sands hired the Plaintiff to work on his house.  I accept the thrust
of the evidence from those witnesses, that Mr. Zajaczkowski had less
energy and more pain after the accident.  Their testimony, however, did not
lead to the further conclusion, that in the result, the Plaintiff worked less
overall and earned less overall.  The Plaintiff, as I have noted, is a
perfectionist in his work, and proud of what he does.  I believe he kept at his
work successfully after the accident, even if he did endure more pain as a
result of it.

[27]        
I have spoken above about the Plaintiff’s inadequate records.  I also
mentioned above Ms. Balano, a prospective client for the Plaintiff.  As
part of his documentary evidence, the Plaintiff submitted a few written
quotations for work which, he said, he could never undertake because of his
injury.  He testified that these "virtual" quotations were prepared
by him as examples to illustrate work he cannot undertake.  Ms. Balano was
one of the clients named on one of those quotations.  However, in the course of
the trial, counsel for the Defendants located Ms. Balano and called her to
testify.  She described in detail her dealings with the Plaintiff around
Christmas time, 2013.  Every aspect of those dealings was typical of a client-contractor
relationship, for getting renovation work done in a house.  I gave the
Plaintiff the opportunity to come back to the stand to rebut Ms. Balano’s
testimony, but he chose not to.  The Plaintiff misled the Court.  The quotation
for Ms. Balano does not show the kind of work the Plaintiff can no longer
do.  It shows the kind of work the Plaintiff can do and is doing.  The
Plaintiff told Ms. Balano, around Christmas last year, that he was
generally booked up with work until March, 2014.

THE MEDICAL EVIDENCE

[28]        
Three doctors testified.  Two were called by the Plaintiff, the
Plaintiff’s GP, Dr. Ibrahim, and Dr. Maryanna Apel, who specializes
in physical medicine and rehabilitation.  Dr. John Oliver, a specialist in
orthopaedics, was called by the Defendants.

[29]        
The Plaintiff went to Dr. Ibrahim complaining primarily of lower
back pain on October 7, 2008.  The doctor’s clinical records record that the
Plaintiff was suffering from back strain.  In his report of December 14, 2013, Dr. Ibrahim
attributed Mr. Zajaczkowski’s lower back pain to the accident.  When he
saw the Plaintiff in August, 2010, Dr. Ibrahim told him that his x-rays
were normal.  Similarly, an MRI in the fall of 2010 was unremarkable.  Dr. Ibrahim
had in his records the July 6, 2009 discharge report of the CBI Health Centre,
advising that Mr. Zajaczkowski, "demonstrates the ability to continue
to safely return to pre-injury activity level."  (The CBI report was in
evidence, without objection, although no witness was called from the Centre to
testify.)

[30]        
The difficulty the Plaintiff faces regarding medical evidence in this
case is the absence of corroborative evidence to accompany his own report of
his pain.  Of course, an expert report is only as good as the facts upon which
it is based.  An expert witness, including a GP who testifies as a family
doctor in a case, is reliant on facts from which his or her conclusions are
based.  Both Dr. Ibrahim and Dr. Apel, whose evidence will be
referenced below, were largely dependent upon what the Plaintiff told them
about his pain for determining what was wrong with him.

[31]        
Dr. Apel testified as an expert witness in physical medicine and
rehabilitation.  She presented herself as a sensible and reliable witness, not
prone to overstating the case of the side who had retained her.  But as noted
above, and as she acknowledged at trial, of necessity, she had to base her
findings, to a considerable extent, on what the Plaintiff told her.  From an
MRI, she observed a cyst in the area of Mr. Zajaczkowski’s lower back.  In
her opinion, that was not the cause of pain.  At page 11 of her report, dated
July 6, 2011, she said in part, "It is the writer’s opinion that the
patient’s difficulties … have guarded prognosis for complete resolution, and
fair prognosis for improvement."

[32]        
Dr. Apel has no knowledge of the Plaintiff or his condition since
seeing him on July 6, 2011.

[33]        
Dr. Apel’s physical examination of Mr. Zajaczkowski indicated
that he had virtually no difficulties in his bodily movements, sitting or
demonstrating his exercise program.  She detected no muscle spasm during her
examination and she elicited a pain response only by pushing on a particular
place on the Plaintiff’s back.

[34]        
As I observed earlier, the Plaintiff is faced with the fact that his
pain, as assessed by Dr. Apel, was largely what he said it was.  There was
nothing remarkable she was able to observe independently of what the Plaintiff
told her.  I have already made findings against the credibility of the
Plaintiff.  He misled the Court concerning his prospective client, Ms. Balano,
and his memory was often poor, as he admitted.  I cannot find from the medical
evidence, relying as it does on what the Plaintiff said to the doctors, that the
Plaintiff’s pain from the accident was so great as to measurably impair his
earning capacity.

[35]        
Dr. Oliver, the orthopaedic specialist called by the Defendants,
presented his report dated August 27, 2013, in which he opined that the
Plaintiff will have no permanent disability, that he will not require surgery
and that he will be able to work as a renovator and tiler.

OTHER EXPERT EVIDENCE

[36]        
The Plaintiff also called Russell McNeil, an occupational therapist, and
Dean Powers, an expert in vocational rehabilitation.

[37]        
Mr. McNeil tested the Plaintiff for 2 1/2 hours (150.93 minutes
precisely) on December 12, 2011, as the basis for his assessment, described in
his primary report, dated January 8, 2012.  (He also presented a second report,
dated November 24, 2013.)  Mr. McNeil’s work assessed the Plaintiff’s
diminished working capacity as a result of the accident.  He was highly
dependent, of necessity, on the Plaintiff’s own description of his working
capacity before the accident compared with afterward.

[38]        
Of additional concern in assessing the opinion of Mr. McNeil is
that he classified the Plaintiff as a construction labourer rather than a
renovation carpenter when he measured Mr. Zajaczkowski’s capacity.  Mr. Zajaczkowski
is a renovation carpenter, not a construction labourer.  The significance in
the distinction is that a construction labourer needs to be stronger.  The
testing and evaluating associated with that work category are more demanding
than for a renovation carpenter.

[39]        
In summary regarding the McNeil report, Mr. McNeil’s reliance on the
Plaintiff’s own description of his capacity, the relatively short time Mr. McNeil
had for testing the Plaintiff and Mr. McNeil’s erroneous classification of
the Plaintiff’s work category lead to me concluding that his opinions should
not form a meaningful part in this case.

[40]        
Dean Powers presented two reports addressing the Plaintiff’s vocational
abilities and opined that the Plaintiff is not competitively employable, as he
put it, in his work as a renovator.  His reports are dated August 31, 2011 and
October 21, 2013 respectively.  The Plaintiff’s earnings history as a
renovator, discussed earlier in these Reasons, indicates that he is
competitively employable in his work.  The main point in assessing the Powers’
opinions is the recurring point in this case, which is that the expert was
significantly dependent upon the reporting by the Plaintiff of his
incapacities.  Dr. Powers acknowledged that his reliance on what the
Plaintiff told him was a very important component of his work.  Given my
earlier findings about the reliability of the Plaintiff as a witness, I am not
in a position to place much weight on the Powers’ reports.

RETURNING TO THE PLAINTIFF’S
CLAIMS

Non-pecuniary damages

[41]        
The Plaintiff seeks non-pecuniary damages in the range between $125,000
and $150,000.

[42]        
It was in 1978 that Dickson J., writing for the Court in Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, set $100,000 as the
upper limit, for all intents and purposes, as compensation for non-pecuniary
losses.  I am advised that the present day adjustment of the upper limit for non-pecuniary
damages is approximately $345,000.

[43]        
A decision frequently cited in this Court for providing guidance in the
assessment of non-pecuniary loss is Stapley v. Hejslet, 2006 BCCA 34. 
There, Kirkpatrick J.A. set out factors, from an earlier decision, which ought
to influence such an award.  Those listed included the age of the plaintiff,
the nature of the injury, the severity and duration of the pain, and other
factors.

[44]        
Not surprisingly, in any analysis of non-pecuniary loss, a plaintiff proceeds
from citing Stapley, or comparable authority, to citing cases containing
relatively high awards, and a defendant brings forth cases where the awards
appear to be on the low side.  Each award in each case is of course heavily
dependent on the facts of that case, with the result that it is of little value
to cite particular cases and awards as if they could serve as anything more
than very rough guides.

[45]        
The approach to take in assessing general damages for an injury, where,
as here, the finding of the injury is based largely on subjective reports of
pain, was discussed by McEachern C.J., in Price v. Kostryba (1982), 70
B.C.L.R. 397 (S.C.), quoted with approval in Edmondson v. Payer, 2012
BCCA 114 at para. 2, where he said:

In Butler v. Blaylock, [1981]
B.C.J. No. 31, decided 7th October 1981, Vancouver No. B781505, I
referred to counsel’s argument that a defendant is often at the mercy of a
plaintiff in actions for damages for personal injuries because complaints of
pain cannot easily be disproved.  I then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer.  But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[46]        
In the case at bar, the Plaintiff was in a minor accident and he
suffered injury to his lower back.  I do not accept that the lower back pain
has been as debilitating as the Plaintiff has described, but I do accept that
it has persisted, and has aggravated his life.  The fact that he has literally
worked through the pain, and thus avoided income losses, obviously does not
mean that the pain has not been present and persisted to some extent.  Mrs. Zajaczkowski
corroborated her husband’s complaints of irritability, and difficulty in
sleeping, stemming from the pain, which continues, and I accept that evidence.

[47]        
On that basis, I award the Plaintiff $40,000 in non-pecuniary damages.

Past and future loss of
earning capacity

[48]        
Under these two heads, the Plaintiff seeks damages between the ranges of
$300,000 and $450,000 for past loss of earning capacity, and $700,000 and
$3,684,880 for future loss of earning capacity.

[49]        
The construct for advancing both of these claims was the Plaintiff’s
assertion that before the accident he was earning between $400 and $1,000 a
day, six days per week, whereas, despite the admitted growth of his renovation
business post-accident, he was unable to grow his earnings as he would have but
for the accident.

[50]        
The Plaintiff’s claims for lost earning capacity run into difficulties
at several stages.

[51]        
The documentary evidence, such as it is, does not corroborate the
Plaintiff’s statement that he was earning between $400 and $1,000 a day, six
days a week.  The Plaintiff demonstrated the ability to work through his back
pain after the accident, growing his business in the course of doing so.  The
Plaintiff has not proven diminished earning capacity, either from the accident
date to trial or going forward.  I pause to acknowledge that the law is well-settled,
with respect to proving loss of future earning capacity, that a plaintiff need
only show a real and substantial possibility of a future event leading to an
income loss, in accordance with Perren v. Lalari, 2010 BCCA 140.

[52]        
The problem in the Plaintiff’s case is that there is an insufficient
factual underpinning for any compensation for loss of earning capacity, past or
future, whether the normal civil burden is applied, for past loss, or what
might be regarded as the lesser burden is applied for future loss.  Under both
tests, it remains that the Plaintiff must prove a case, and that has not been
done here with respect to earnings.

Loss of housekeeping
capacity

[53]        
The Plaintiff claims damages under this head in the range between
$20,000 and $30,000.

[54]        
Before the accident, Mr. Zajaczkowski regularly made two
contributions around the home, one shovelling snow and the other washing the
cars.  While this is probably not the best place in Canada to advance a claim
associated with diminished snow-shovelling capacity, the Plaintiff says that the
area in the Lower Mainland where he lives, in Coquitlam, gets more snow than
the surrounding areas do.  Be that as it may, I am not satisfied that the
Plaintiff is unable to shovel the snow that is likely to fall at his house. 
Although I am making no finding in this case that the Plaintiff has failed to
mitigate his losses, I observe that more than one of his professional advisors
told him to undertake strengthening exercises which he has largely failed to
do.  From the expert evidence presented at trial, I expect that if the
Plaintiff exercises routinely and properly, his snow-shovelling duties will be
manageable.

[55]        
It is much the same with respect to washing the cars, except I expect that
the car washing is less arduous than the snow shovelling.

Cost of future care

[56]        
The Plaintiff claims for the cost of future care in the range of $75,000
and $80,000.

[57]        
The Supreme Court of Canada addressed the quantification of future care
costs in Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205,
at para. 21, stressing that courts are to rely on the evidence of what
care is likely to be in the injured person’s best interests.

[58]        
Mr. McNeil in his evidence made a number of recommendations under
this head, including care under the sub-headings of pain management,
ergonomics/ ergonomic devices, rehabilitation/health-related expenses and
medications.

[59]        
With respect, I have a concern from the evidence that rather than
helping the Plaintiff, most of those recommended treatments and devices would
serve primarily to make him feel like he requires treatment more than he does,
with the result that his recovery could be impeded rather than assisted.  From
the recommendations of the medical doctors, the Plaintiff requires, as I noted
above, a strengthening regime.  That would probably be enhanced by a gym
membership and a qualified trainer helping the Plaintiff.  Under this head, I
am awarding the Plaintiff $10,000 toward such programs.  I confess that I am
selecting that number randomly, without evidence, as an amount to get the
Plaintiff properly launched on a strengthening program.

Special damages

[60]        
The Plaintiff filed documentary evidence, including invoices totalling
approximately $1,300, for pain and other medications, and similar expenses.  The
Plaintiff testified that he has spent probably twice that amount under this
head.  I award the Plaintiff $3,000 as special damages.

CONCLUSION

[61]        
For the reasons above, the damages I award are as follows:

[62]        
Costs were not spoken to before me.  There may be facts I am not aware
of regarding costs, and I make no order as to costs, but the parties are at
liberty to apply concerning them.

MACINTOSH J.