Judge dismisses pricey legal claim over fender-bender
A Coquitlam man was awarded $53,000 in damages in B.C. Supreme Court recently in connection with a minor fender-bender in Burnaby.
That's a far cry from the $1.2 million to $4.4 million he was seeking through the civil suit for lower back pain he says he suffered.
The plaintiff, Rich Zajaczkowski was driving a Dodge Ram pickup in stop-and-go traffic on Sept. 19, 2008 when he was rear-ended by a small sedan on Highway 1 in Burnaby, near the Gaglardi Way exit.
Zajaczkowski was wearing his seatbelt and the airbags did not deploy. The driver of the sedan, Breedon Grauer, testified he doesn't believe he had even hit the gas before the impact but rather, had only taken his foot off the brake.
A few days later, Zajaczkowski felt pain in his lower back which he claims has been persistent enough it has affected his earnings as a renovation contractor.
But there were serious questions about his credibility, said BC Supreme Court Justice George Macintosh in his reasons for judgment.
Zajaczkowski frequently admitted during the trial his memory is poor. For instance, he was not able to say exactly how much education he had. In court, it ranged from Grade 9 to Grade 12. But he told one of his doctors he finished Grade 8 and another that he has a college education.
And while he submitted written quotations for renovation work he says he could never take on because of the injury, lawyers for the defence found one of the clients cited. That client testified that her dealings with Zajaczkowski were typical of a client-contractor relationship and that he told her last December that he was booked up with work until March 2014.
"The Plaintiff misled the Court," Mcintosh said. "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."
Zajaczkowski had little documentation to prove his estimates of lost income, repeatedly saying his accountant is reorganizing his books.
"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."
Mcintosh also could not find medical evidence that his pain from the accident was so great that it hurt his earning capacity.
Nor did he accept Zajaczkowski's claim for $20,000 to $30,000 in damages for loss of housekeeping capacity. He had claimed that before the accident he regularly shovelled snow and washed cars as part of his chores around his home, something the injury now prevented.
"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 the Plaintiff is unable to shovel the snow that is likely to fall at his house."
Mcintosh noted Zajaczkowski had "largely failed" to do strengthening exercises as recommended by one of his professional advisors and that if he "exercises routinely and properly, his snow-shovelling duties will be manageable."
The judge did accept that the back pain has persisted and "aggravated his life" in awarding him $40,000 in non-pecuniary damages. He also awarded $10,000 towards a gym membership to launch him on a strengthening program, and $3,000 in special damages for medications and similar expenses.