IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Valencia-Palaciao v. KCP Heavy  
Industries Co. Ltd.  
2022 BCSC 1171  
Date: 20220711  
Docket: S180906  
Registry: Vancouver  
Between:  
Gerson Alvarado, Robert Clegg, Henry Brizuela,  
Steven Sandhu, and Mariana Valencia-Palaciao Personal  
Representative of the Estate of Sebastian Gomez  
Obando, deceased, on her own behalf and for the  
benefit of Juan Gomez Valencia and  
Alicia Gomez Valencia  
Plaintiffs  
And  
KCP Heavy Industries Co. Ltd., Mario Silva and POSCO  
Defendants  
Before: The Honourable Justice Kirchner  
Reasons for Judgment  
Counsel for the Plaintiff, Mariana Valencia-  
Palaciao:  
L.E. Jones  
A.L. Johnson  
No other appearances  
Place and Dates of Trial:  
Vancouver, B.C.  
May 16-18, and June 22, 2022  
Place and Date of Judgment:  
Vancouver, B.C.  
July 11, 2022  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 3  
BACKGROUND......................................................................................................... 4  
THE FAMILY COMPENSATION ACT....................................................................... 7  
LOSS OF FINANCIAL SUPPORT............................................................................. 9  
Legal Principles...................................................................................................... 9  
Analysis................................................................................................................ 10  
Mr. Gomez’s Likely Career Path....................................................................... 10  
Economist’s Analysis and Evidence ................................................................. 14  
Contingencies................................................................................................... 22  
Assessment ...................................................................................................... 25  
LOSS OF GUIDANCE ............................................................................................. 28  
Legal Principles.................................................................................................... 28  
Analysis................................................................................................................ 29  
LOSS OF INHERITANCE........................................................................................ 30  
Legal Principles.................................................................................................... 30  
Analysis................................................................................................................ 31  
LOSS OF HOUSEHOLD SERVICES ...................................................................... 32  
Legal Principles.................................................................................................... 32  
Analysis................................................................................................................ 32  
SPECIAL DAMAGES.............................................................................................. 34  
TAX GROSS UP AND INTEREST .......................................................................... 36  
CONCLUDING REMARKS AND COSTS ............................................................... 37  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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Introduction  
[1]  
This action was brought by victims and survivors of a tragic construction  
accident that left one worker dead, another paralyzed, and three others claiming  
psychological trauma. KCP Heavy Industries Co. Ltd. (“KCP”) is the sole remaining  
defendant. It is the manufacturer of a cement-pumping truck that collapsed while  
pumping concrete at a job site in Chilliwack, B.C, dropping its boom on two of the  
plaintiffs. KCP did not file a statement of defence and default judgment was taken  
against it on June 22, 2018. Claims against the other two defendants have been  
discontinued. Accordingly, liability is not in issue.  
[2]  
Following the default judgment, a Case Plan Order was made on October 21,  
2020 ordering that the plaintiffs’ damages claims be tried separately. Thus, this trial  
concerns only those claims brought by Mariana Valencia-Palaciao, the widow and  
personal representative of Sebastian Gomez Obando (“Mr. Gomez”), the young  
worker who was killed in the accident. She makes claims under the Family  
Compensation Act, R.S.B.C. 1996, c. 126 [Act] on her own behalf and on behalf of  
their two young children and Mr. Gomez’s parents.  
[3]  
KCP, having never filed a response to civil claim, did not appear at trial or  
defend this damages claim. Despite this, the plaintiff must still prove the damages by  
leading evidence of the family’s losses. She did so comprehensively, tendering clear  
and cogent evidence on all material points and providing thorough written and oral  
submissions. Since the evidence would not be contested, and witnesses would not  
be cross-examined, I granted leave for the plaintiff to tender much of this evidence  
by way of affidavit, which she did for most witnesses. However, three key witnesses,  
including the plaintiff herself and Mr. Gomez’s mother, gave evidence in person.  
[4]  
Ms. Valencia-Palaciao claims damages pursuant to the Act under the  
following heads: loss of financial support for herself, the children and Mr. Gomez’s  
parents; loss of guidance for the children; loss of inheritance; loss of household  
support; and special damages. At issue is what, if any, damages have been  
established under these heads.  
 
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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Background  
[5]  
Mr. Gomez was born in Pereira, Colombia in 1991. He immigrated to Canada  
with his family in 2007, settling in Sherbrooke, Québec where he completed high  
school with good grades.  
[6]  
Ms. Valencia-Palaciao was born in 1995 in Medallin, Colombia. Medallin is  
considered to be part of the same region of Colombia as Mr. Gomez’s hometown of  
Pereira. Ms. Valencia-Palaciao immigrated to Canada with her family, settling in  
Metro Vancouver. She and Mr. Gomez met in Sherbrooke over the Christmas  
holiday in 2009 when her family was visiting relatives. Mr. Gomez was 18 and  
Ms. Valencia-Palaciao was 15. Ms. Valencia-Palaciao said they immediately fell in  
love.  
[7]  
Ms. Valencia-Palaciao’s family stayed in Sherbrooke for about a month and  
she and Mr. Gomez spent considerable time together, watching movies, playing  
board games, and visiting Québec City. Ms. Valencia-Palaciao remembers it as a  
very special and intense time for both of them.  
[8]  
They continued a long-distance relationship for about five months but things  
faded until Christmas 2010 when they reconnected. In February or March 2011,  
Mr. Gomez moved to Metro Vancouver to be near Ms. Valencia-Palaciao, living in an  
apartment her family had found for him. He worked at various jobs including  
construction and landscaping.  
[9]  
In 2012, Mr. Gomez and Ms. Valencia-Palaciao moved together to Calgary  
where they lived with Mr. Gomez’s parents. Mr. Gomez again worked at various jobs  
including cleaning and warehouse work. He worked full time during this period either  
at a single job or by combining part time jobs.  
[10] In 2012, while in Calgary, Ms. Valencia-Palaciao became pregnant. Though  
both were still very young, she and Mr. Gomez were excited and pleased about  
having a baby. Ms. Valencia-Palaciao said they were “really in love and felt we were  
able to bring a family up.”  
 
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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[11] In spring 2013, they moved to Longueuil, Québec, a suburb of Montréal.  
Though Mr. Gomez talked about going back to school, he instead worked at various  
labouring jobs, eventually coming to work in demolition in the construction sector.  
This job paid the most out of any he had done in Montréal or elsewhere. Again, he  
worked full time either at a single job or by piecing together part time work. With their  
first child on the way, Mr. Gomez was working hard and saving money to provide for  
their firstborn.  
[12] The couple’s first child, Juan Diego, was born in July 2013. Ms. Valencia-  
Palaciao said Mr. Gomez was extremely proud and delighted with having a son. She  
said Juan Diego had her eyes and it made Mr. Gomez happy to say he looked like  
his mother. A collection of photos tendered as evidence illustrate Mr. Gomez’s  
happiness with becoming a father.  
[13] Mr. Gomez continued to talk about going back to school but, now with a new  
child, he focused on work to provide for his new family.  
[14] That Christmas—2013—the family took a trip to Colombia during which  
Ms. Valencia-Palaciao discovered she was pregnant again. Though a little surprised  
they could become pregnant so quickly after Juan Diego was born, and a little  
worried about having a good income to support a larger family, Mr. Gomez was very  
excited about having another child. His mother testified he had always wanted a  
large family.  
[15] While still in Colombia, Mr. Gomez began talking with friends in Vancouver  
about moving back there to work. They convinced him there would be better  
opportunities in Vancouver’s construction industry with higher pay. Thus, after they  
returned from Colombia, the family moved back with Mr. Gomez’s parents in Calgary  
and Mr. Gomez continued on to Vancouver to find work and a place to live. The  
family eventually moved to Metro Vancouver, settling in Surrey. Mr. Gomez began  
working for a concrete company called R-Four Contracting Ltd. There, he worked  
with a foreman named Gerson Alvarado, who was impressed by Mr. Gomez’s work  
ethic and skill. The two became friends.  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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[16] The couple’s second child, Alicia, was born in 2014. Ms. Valencia-Palaciao  
testified that Mr. Gomez was very excited and pleased to have a daughter. He called  
her “la reina de mi corazon” – “the queen of my heart”.  
[17] Ms. Valencia-Palaciao did not work after Juan Diego was born. Mr. Gomez  
urged her to stay at home to look after the children and the household. Thus,  
Mr. Gomez’s income was the only one the family had. It was something of a struggle  
to make ends meet but they got by and even managed to set small amounts of  
money aside from time to time. This included some modest savings in a Colombian  
bank account which they hoped to grow so they might some day buy a house in  
Colombia. Sadly, Ms. Valencia-Palaciao would eventually have to use those savings  
to pay for Mr. Gomez’s funeral in that country.  
[18] Ms. Valencia-Palaciao said Mr. Gomez often talked about ensuring they had  
enough money to allow the kids to have the opportunities they might want, including  
going to university. She said his own family struggled somewhat financially as he  
was growing up and he wanted their kids to have better opportunities than he had.  
Mr. Gomez’s mother, Norida Obando Areanas, testified she and her husband often  
encouraged Mr. Gomez and his younger brother to attend university. She believes  
Mr. Gomez would eventually have done so were it not for the accident. Pursuing  
higher education was an ethic in their family and it is not surprising that Mr. Gomez  
would want the opportunity for his children.  
[19] Mr. Gomez also gave money to his parents from time to time. The amounts  
varied but generally he gave them a $400 or $500 every few months, sometimes  
more.  
[20] In May 2015, Mr. Gomez left R-Four Contracting to start a new job with KC’s  
Pumping Service Inc, which does business under the name PSI Concrete Pumping  
(“PSI”). His friend and foreman at R-Four, Mr. Alvarado, recruited him for this move.  
Mr. Alvarado was first offered the job at PSI and was told he could select any crew  
members he wished to hire. Mr. Gomez was one of the people he chose, and  
Mr. Gomez began working for PSI on May 4, 2015.  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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[21] Tragically, the accident happened less than a year later.  
[22] In the early morning of March 11, 2016, a PSI construction crew, including  
Mr. Alvarado and Mr. Gomez, was pouring concrete at a townhouse development in  
Chilliwack. To reach the far corners of the site, concrete was pumped from a 12-  
wheeled truck through a hose attached to mobile metal boom. To counteract the  
weight of its outstretched boom, the pump truck was stabilized by four outrigger legs.  
Mr. Gomez’s task was to place the concrete as it poured out of the hose. The truck  
was manufactured by the defendant KCP.  
[23] Without warning, a steel collar-plate securing one of the legs on the truck  
fractured. The outrigger buckled and collapsed, removing a critical support from the  
boom above. The boom, laden with liquid concrete, levered the truck into the air as it  
fell until the truck balanced only on its front right tire. The boom dropped onto  
Mr. Alverado and Mr. Gomez who were working below. Mr. Alverado was paralyzed  
from the waist down and Mr. Gomez, who was just 24-years-old, was killed.  
[24] The loss was an immense tragedy for the young family. Though very young at  
the time of the accident, the children remember their dad fondly. They keep pictures  
of him in their rooms and speak often of him to Ms. Valancia-Palaciao. In the days  
after the accident, Juan Diego would continue to go to the window at the end of the  
day when he heard a car in the hopes that it would be his dad returning from work.  
The Family Compensation Act  
[25] At common law there is no action for wrongful death: Panghali v. Panghali,  
2014 BCSC 647 at para. 27 [Panghali]. In British Columbia, the Act creates a  
statutory basis for the deceased’s surviving dependents, including a spouse,  
parents, and children, to recover damages against a person who wrongfully caused  
the death. Section 2 of the Act states:  
2. If the death of a person is caused by wrongful act, neglect or default, and  
the act, neglect or default is such as would, if death had not resulted, have  
entitled the party injured to maintain an action and recover damages for it,  
any person, partnership or corporation which would have been liable if death  
had not resulted is liable in an action for damages, despite the death of the  
 
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 8  
person injured, and although the death has been caused under  
circumstances that amount in law to an indictable offence.  
[26] The Act provides that the action may be commenced by the deceased’s  
personal representative for the benefit of the deceased’s spouse, parent or child  
(s. 3(1)). The court may award “damages proportioned to the injury resulting from  
the death to the parties respectively for whose benefit the action has been brought”  
(s. 3(2)). Damages may also be awarded for “any medical or hospital expenses  
which would have been recoverable as damages by the person injured if death had  
not ensued” and for “reasonable expenses of the funeral and the disposal of the  
remains of the deceased person” (s. 3(9)).  
[27] The purpose of the Act is to place claimants in the economic position they  
would have occupied but for the wrongful death: Keizer v. Hanna and Buch [1978] 2  
S.C.R. 342 at p. 351 [Keizer]. In that case, Justice Dickson, as he then was, defined  
the ultimate objective of an award under family compensation legislation as follows:  
The appellant is entitled to an award of such amount as will assure her the  
comforts and station in life which she would have enjoyed but for the untimely  
death of her husband.  
[28] Claimants may recover pecuniary benefits they would otherwise have derived  
from their relationship with deceased but not non-pecuniary losses: Ruiz v. Bouaziz,  
2001 BCCA 207 at para. 46. Recoverable losses may include the actual financial  
benefit of which the claimant has been deprived, and the financial benefit which  
might reasonably be expected to accrue in the future if death had not occurred:  
Panghali at para. 29.  
[29] As noted, Ms. Valencia-Palaciao seeks damages for herself, her children, and  
Mr. Gomez’s parents under the following heads: loss of financial support; loss of  
guidance; loss of inheritance; loss of household services; and special damages.  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 9  
Loss of Financial Support  
Legal Principles  
[30] An award for loss of financial support (or loss of dependency) is meant to  
reflect the portion of the deceased’s earnings that would have continued to provide  
financial support to the claimant: Panghali, at para. 40. In general, the amount is  
calculated by assessing what income the deceased would have earned but for the  
death and then reducing that amount to account for the deceased’s personal  
consumption: Panghali, para. 40. Values for future losses are to be discounted to  
reflect present values.  
[31] Since, in life, the deceased would have drawn on their after-tax income to  
support others, the assessment under this head of damages is net of income tax and  
must therefore be grossed up to account for effects of income tax: Mazloom v.  
Central Mountain Air Services Ltd., 1992 1611 (B.C.C.A.).  
[32] Where the claimant is a child, additional considerations apply. First, the award  
is limited to the period in which the child would have remained dependent on the  
parent for financial support: Panghali, at para. 43. Second, the analysis must  
consider two categories of family expenses: those devoted exclusively to the  
children, and those which “constituted the lifestyle of the children as part of the  
family”: Ratansi v. Abery, 1994 1529 (B.C.S.C.). The latter are indivisible  
family expenses from which the child benefits.  
[33] While financial support most commonly flows down from parent to child, or  
horizontally between spouses, it can also flow upwards from child to parent. Where  
evidence exists to support such a claim, parents may advance claims for lost  
financial support from their child: Ayeras v. Front Runner Freight Ltd., 1998  
5455 at para. 18 (B.C.A.C.) [Ayeras].  
[34] In Keizer, Justice Dickson discussed the methodology for calculating loss of  
financial support. He said:  
   
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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An assessment must be neither punitive nor influenced by sentimentality. It is  
largely an exercise of business judgment. The question is whether a stated  
amount of capital will provide, during the period in question, having regard to  
contingencies tending to increase or decrease the award, a monthly sum at  
least equal to that which might reasonably have been expected during the  
continued life of the deceased.  
[35] In Johnson v. Carter, 2007 BCSC 622, Justice Slade outlined the following  
“conventional approach” to determining an award for loss of future earning under the  
Act, based on Coger Estate v. Central Mountain Air Services Ltd., 1992 1611  
(B.C.C.A.) [Coger Estate]:  
1. A calculation is made of the income which has been lost up to the date of  
trial.  
2. A calculation is made of the loss of future earnings.  
3. A reduction is then made for personal consumption of the deceased.  
4. Contingencies are reviewed to determine if a further reduction is required.  
[36] Coger Estate adds a fifth step, being to apply the tax gross up to the award.  
Counsel seek the opportunity to make further submissions on the appropriate tax  
gross-up after judgment. I give leave to do so.  
[37] Assessing loss of earning capacity is always an “inquiry into the unknowable”:  
Morrison v. Moore, 2009 BCSC 1656 at para. 30 [Morrison]. Courts are required to  
consider future hypothetical events, assessed on a standard of real and substantial  
possibilities and weighted “according to the percentage chance they would have  
happened or will happen.”: Rosvold v. Dunlop, 2001 BCCA 1 at para. 9. The task is  
even more challenging when the deceased is young and there is little in the way of a  
work history from which inferences might be drawn as to future events: Cox v.  
Fleming, 1995 3127 (B.C.C.A.).  
Analysis  
Mr. Gomez’s Likely Career Path  
[38] Mr. Gomez was just 24 when he was killed and thus does not have a long  
work history on which to assess his probable future earnings. Before starting at R-  
Four Industries and later at PSI, Mr. Gomez had worked at various relatively low-  
   
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 11  
paying jobs since finishing high school in 2010, including fast food work, delivery  
driving, cleaning, demolition, and construction. His income for those years is small.  
[39] Nevertheless, by the time of his death Mr. Gomez had established himself in  
the concrete industry. There is significant evidence about his strong work ethic, his  
skill as a tradesperson, and his commitment to providing financial stability and  
support for his family. Counsel argue that, while there is evidence Mr. Gomez had  
visions of retuning to school and potentially training as an architect or starting a  
business with his family, a career in the concrete industry is the best available  
benchmark for assessing his likely without-accident future earning capacity. I agree.  
As I will discuss, the evidence establishes a promising career was unfolding for him  
in that trade.  
[40] I also agree with counsel that even if Mr. Gomez were to have changed jobs  
or pursued other opportunities, his demonstrated prioritization of lucrative  
employment and his work ethic would only have driven him to higher-paying  
opportunities. In this respect, his career trajectory in the concrete industry provides a  
useful base from which to assess his future earning capacity, while his ambition to  
consider other opportunities should be considered as a positive contingency.  
[41] As noted, Mr. Gomez began working for R-Four in 2014 where he met  
Mr. Alvarado, the foreman who befriended him and recruited him to PSI.  
Mr. Alvarado, who gave both viva voce and affidavit evidence, described Mr. Gomez  
as “a great worker and team member” who listened to instructions, got along with  
colleagues, and became a trusted “right hand man”. He “could be counted on to get  
a job done” and his work ethic was “100 percent effort”.  
[42] When Mr. Gomez started at PSI on May 4, 2015, he worked as a concrete  
placer earning $27.00 per hour plus extended health benefits. He was valued by his  
employer as a skilled and effective employee who enjoyed his work. Mikaela  
Ciebien, one of the owners of PSI, speaks glowingly of Mr. Gomez’s performance.  
She said in her affidavit he exhibited excellent workmanship and delivered a high-  
quality result for PSI’s customers. She went on to say:  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 12  
My impression of Sebastian—which I believe was shared by the rest of the  
management team—was that Sebastian was a great worker. I observed that  
he worked hard, I had no concerns about his performance, and my  
impression of him was that he had a great attitude. One of the things I  
remembered about Sebastian was that he seemed to enjoy his work. He was  
especially close to the foreman of the crew that was also injured in the  
accident, Gerson. He always seemed to be having fun while doing a good  
job. I would often be involved dispatching Sebastian and his crew to job sites,  
and Sebastian was always a pleasure to deal with during the dispatch  
process. He was polite, friendly and company oriented. He was also  
extremely dependable. I knew if I asked him to take a particular job he would  
always be willing to do it.  
[43] Ms. Ciebien said Mr. Gomez was a part of PSI’s top performing crew to which  
she assigned larger, higher-profile jobs. These jobs tend to take longer so crew  
members, who are paid by the hour, can make higher earnings as part of this select  
crew.  
[44] Ms. Ciebien said Mr. Gomez was always willing to work overtime, and his  
payroll records confirm this. In his first two weeks at PSI, he worked four hours of  
regular overtime (i.e. additional time after eight regular hours) and five hours of  
double time (additional work after 12 hours). On his fifth day, he worked a total of 17  
hours. He often worked on Saturdays.  
[45] Given Mr. Gomez’s performance and positive work ethic, Ms. Ciebien expects  
he would have advanced within the company from being a concrete placer to a  
finisher, which she says is a common career path. She states PSI enjoys a steady  
work flow and there would have been work indefinitely for Mr. Gomez as a placer  
and later a finisher, had he survived and chosen to stay with the company.  
[46] She states there is no formal training for becoming a finisher, just on-the-job  
training which can take between one and two years. Finishers within her company  
start at $35.00 per hour and progress to $40.00 per hour. In addition to the higher  
wage, finishers also work longer days than placers which means they can earn  
considerably more money than placers.  
[47] Ms. Ciebien has provided three examples of income earned by finishers  
employed by PSI as follows:  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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a) A junior finisher who started placing concrete in 2003 and staring training  
to be a finisher in 2007. He has been a finisher for 15 years and works on  
smaller concrete slabs which require fewer hours. He earns $35.00 per  
hour and his annual earnings for 2021 were $89,890.55 plus benefits.  
b) A mid-level finisher who works on bigger slabs, also earning $35.00 per  
hour. His annual salary for 2021 was $79,183.30. However, he did not  
work from June 15 to October 15 so this only represents eight months of  
work. Pro-rating this to the entire year would suggest an annual income of  
$118,774 plus benefits.  
c) A senior finisher earning $40.00 per hour and working on bigger slabs. He  
earned $132,112 in 2021 but missed one month of work. Pro-rating this for  
the entire year suggests an annual income of $144,122 plus benefits.  
[48] Josh Cooper, another owner of PSI, states it takes between 2 and 4 years for  
a new finisher to progress to working on larger concrete slabs, although this varies  
by the individual’s skill and ability to understand the machinery.  
[49] Ms. Ciebien suggests that retirement ages vary in the industry, though  
placers and pump operators tend to retire earlier due to the physical demands of the  
job. However, she says PSI still has employees in their mid-sixties working both  
types of jobs.  
[50] There is no question in this case of a future loss. The evidence clearly  
establishes a positive career trajectory for Mr. Gomez and I find the kind of path  
described by Ms. Ciebien was a real and substantial possibility for Mr. Gomez with a  
very high degree of probability. I accept this is a logical hypothetical on which to  
assess Mr. Gomez’s loss of earning capacity.  
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Economist’s Analysis and Evidence  
[51] The plaintiff has tendered an expert report of Darren Benning, an economist  
with considerable experience calculating past and future loss of earnings and  
earning capacity. He is qualified to give opinion evidence on that subject.  
[52] Mr. Benning was asked to estimate the loss of support to Mr. Gomez’s family  
based on assumptions about Mr. Gomez’s potential career path as just described.  
The assumptions Mr. Benning was asked to consider are as follows:  
a) Absent the accident, Mr. Gomez would have realized earnings  
commensurate with his 2016 earnings for two years following the accident.  
I find this is a reasonable assumption given the availability of work at PSI  
and the strong endorsement of Mr. Gomez’s work from his employer and  
others. As I have said, even if Mr. Gomez had left PSI, his work ethic and  
his commitment to providing for his family satisfies me he would only have  
left to take on a more lucrative opportunity.  
b) After these two years, Mr. Gomez would have been promoted to the  
position of concrete finisher, with earnings of $80,000 per year and  
increasing to $127,000 over a five-year period. He also would have  
received extended health benefits. This assumption is well supported by  
Ms. Ciebien’s and Mr. Cooper’s evidence and I accept it as reasonable.  
c) Mr. Gomez would have advanced from placer to finisher after a further two  
years at the company after the date of the accident. This falls within the  
time Ms. Ciebien estimated for training to be a finisher. Given  
Mr. Gomez’s skill and work ethic, as well as his previous experience in  
placing concrete, which began in 2014, I find this is a reasonable  
assumption supported by the evidence.  
d) Mr. Gomez’s annual income as a developing finisher would start $10,000  
below and finish $5,000 below those of the three example finishers in  
Ms. Cieben’s affidavit. This assumption is, in fact, more conservative than  
 
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Page 15  
those examples in that Mr. Benning was not asked to adjust for time two of  
the example employees did not work. In other words, some time off from  
work is built into the assumptions. Again, having regard to Mr. Gomez’s  
skill and work ethic, I consider these assumptions to be reasonable and, if  
anything conservative.  
e) Mr. Gomez’s growth in skill and earnings as a finisher, building up to  
working on larger concrete slabs, would take place over 5 years. This is  
one year longer than the 4 years described by Mr. Cooper and thus seems  
overly conservative for Mr. Gomez, but since it is what the plaintiff has  
proposed I accept it.  
f) Mr. Gomez would have retired at 65. Again, based on Ms. Ciebien’s  
evidence I accept it as a reasonable assumption. It is perhaps a bit  
optimistic since she said it is not unusual for concrete workers to retire  
early because of the physical demand of the job, but I find this potential is  
offset by the fact, noted at paragraph (d) above, that time off during the  
year is built into Mr. Benning’s assumptions. Moreover, as a keen soccer  
player, Mr. Gomez was fit and likely would have kept himself in shape.  
[53] Mr. Benning was initially asked to assume that Ms. Valencia-Palaciao would  
not have worked in the paid workforce during her lifetime. Thus, in his first report,  
Mr. Benning considered Ms. Valencia-Palaciao would have no personal income until  
she reached 67 when she could start collecting Old Age Security.  
[54] During the trial, however, I questioned how to approach the analysis if I were  
to find there to be a real and substantial possibility that Ms. Valencia-Palaciao would  
have entered the paid workforce at some time in her life. After considering the  
matter, counsel for Ms. Valencia-Palaciao sought leave to tender a second  
supplemental report from Mr. Benning that assumes Ms. Valencia-Palaciao would  
have entered the paid workforce in 2030, when Alicia turned 16. This second  
supplemental report assumes she would have worked part time until 2034 and then  
full time to age 65. It assumes she would have earned minimum wage. As discussed  
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Page 16  
below, the addition of these assumptions reduces Mr. Benning’s assessment of the  
loss of financial support for Ms. Valencia-Palaciao and each of the two children by a  
combined total of about 2.5%. Depending on the scenario, the reduction for the  
amount attributed to Ms. Valencia-Palaciao is between 1.5% an 1.8%, the reduction  
for Juan Diego is between 4.6% and 5%, and the reduction for Alicia is between  
6.8% and 7.4%. The reduction is attributable to an adjustment in the allocation of  
personal expenditures.  
[55] I am not persuaded that Ms. Valencia-Palaciao would have stayed out of the  
workforce for her entire life had Mr. Gomez survived. Her evidence, which I accept,  
is that Mr. Gomez encouraged her to remain working in the home, raising the  
children and looking after the household. Despite financial pressures in the family, I  
am satisfied that he would have continued to encourage her in this way and she  
would have stayed at home with the children at least until they were of school age  
and potentially later.  
[56] However, I find there is a real and substantial possibility that Ms. Valencia-  
Palaciao would have entered the workforce in some capacity before the children  
completed school. I say this for two reasons. First, there was evidence of some  
financial tensions in the household just before Mr. Gomez died. According to  
Mr. Alvarado, Mr. Gomez had privately expressed some resentment about being the  
only person in the family earning an income. However, I must consider these  
sentiments in light of Mr. Gomez’s rather firm encouragements for Ms. Valencia-  
Palaciao to stay working in the home and looking after the children. In my view, an  
occasional private expression of resentment to a friend cannot wholly displace the  
plans Mr. Gomez and Ms. Valencia-Palaciao had for raising their children. Thus,  
while I consider this factor to contribute to a real and substantial possibility that, at  
some point, Ms. Valencia-Palaciao would have entered the paid workforce, I find it  
should not overwhelm the analysis.  
[57] The second reason I find there is a real and substantial possibility of  
Ms. Valencia-Palaciao entering the paid workforce is that she is working part time  
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Page 17  
now as a painter in her new partner’s business. She did not obtain the work through  
a competitive employment process and it amounts to a casual labour job with flexible  
hours and low pay. However, she has gone back to work in some capacity  
indicating, in my view, it was always a real and substantial possibility. Again, though,  
I would not permit this to overwhelm the analysis since she is now with a new  
partner in new life circumstances. It is her hypothetical without-accident life with  
Mr. Gomez that I must assess and that life was characterized by a plan for  
Ms. Valencia-Palaciao to be a stay-at-home parent.  
[58] I find the the work opportunities available to Ms. Valencia-Palaciao would  
have been limited since she did not complete high school and has almost no  
experience in the paid workforce. It seems unlikely she would find work in anything  
but a minimum-wage job and I accept that assumption as reasonable.  
[59] As noted, Mr. Benning’s second supplemental report assumes Ms. Valencia-  
Palaciao would have entered the paid workforce when Alicia turned 16 and treats  
this as a certainty. I do not consider it to be a certainty, although it is a good  
possibility. I also find there is a real and substantial possibility that she would have  
started work earlier and moved to full time sooner than Mr. Benning was asked to  
assume, although the relative likelihood of this diminishes the younger the children  
are.  
[60] Mr. Benning was also asked to assume that Mr. Gomez would have provided  
his parents with financial support of either $300 or $3,000 annually. This assumption  
is based on the fact Mr. Gomez regularly provided money to his parents and that this  
is a cultural practice of many Colombians. Indeed, Mr. Gomez’s mother, Ms. Arenas,  
testified it was common for her and her husband, both of whom are Colombian, to  
provide money to their parents. She said her parents did the same for her  
grandparents and she confirmed it is a common cultural practice in Colombia.  
[61] The amounts Mr. Gomez provided to his parents varied over the years.  
Ms. Arenas testified that Mr. Gomez sometimes provided $500 or $600 and did so a  
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Page 18  
few times a year, perhaps as much as eight times in a year, maybe more. At  
Christmas in 2015 he gave them $1,000 to spend on a trip to Colombia.  
[62] Courts in British Columbia have recognized that some cultures have traditions  
of filial piety in which children are expected to provide ongoing financial support to  
their parents, either as a symbol of respect and gratitude, or as a practical means of  
providing retirement security in the absence of pensions: Ayeras, at paras. 20-21;  
Cox v. Flemming, 1995 3127 at paras. 69 (B.C.C.A.) [Cox] and cases cited  
therein. As Finch J.A. (as he then was) noted in Cox, these cases are fact specific  
and depend not only on the cultural tradition but on the particular family  
expectations.  
[63] The evidence satisfies me this is a custom at least with some families in  
Colombia and certainly an important cultural tradition that Mr. Gomez and his  
parents lived by. I thus find the assumption that Mr. Gomez would have continued to  
support his parents in this manner is supported by the evidence. It is reasonable to  
have asked Mr. Benning to factor it into his calculation and I find there is a basis in  
fact and law to make an award for Mr. Gomez’s parents in this respect.  
[64] With these instructions and assumptions, Mr. Benning first calculated the  
assumed without-accident value of Mr. Gomez’s income to age 65 plus the value of  
extended health benefits. He adjusted this value to account for income taxes and  
payroll deductions. He also applied general negative labour market contingencies,  
including risk of unemployment, propensity for part time work, and risk of disability.  
[65] Mr. Benning then calculated Ms. Valencia-Palaciao’s income which, as noted,  
was initially confined to Old Age Security benefits after she reached 67 but in a  
further report factored in the previously-mentioned assumptions about her entering  
the paid workforce.  
[66] Mr. Benning then calculated the past and future loss of financial support to  
Mr. Gomez’s parents on the two scenarios of him paying them $500 per year and  
$3,000 per year. He applied survival contingencies for Mr. Gomez and his parents.  
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Page 19  
Mr. Benning assumed Mr. Gomez would provide this support as long as at least one  
of his parents was still living, which I find to be a reasonable assumption, supported  
by the evidence.  
[67] Mr. Benning then accounted for family consumption (food, shelter, clothing,  
household operation etc.) and allocated a share of those expenses to each of  
Mr. Gomez’s family members, including Mr. Gomez himself. Data for this calculation  
is from Statistics Canada’s Survey of Household Spending in 2000. This approach,  
when the evidence of the family’s actual expenditures is limited, has been accepted  
by this court: Panghali, para. 47.  
[68] Mr. Benning then calculated Mr. Gomez’s estimated past and future without-  
accident financial support for Ms. Valencia-Palacio and the children. These  
calculations considered the family’s disposable income and Mr. Gomez’s personal  
expenses (calculated as a share of the family disposable income) and arrived at a  
total annual financial support for each of the immediate family members. The  
calculation assumes that Mr. Gomez would support the children to age 20 and so his  
share of personal expenses increases when the children reach that age.  
[69] Mr. Benning did this calculation under two different scenarios: one where  
Mr. Gomez provided $500 per year in support to his parents and one where he  
provided $3,000 per year in support. The calculation is important because making  
payments to Mr. Gomez’s parents would necessarily reduce his contribution from his  
income to his immediate family.  
[70] One might think that accounting for these two different scenarios would  
simply mean the total support available for Ms. Valencia-Palaciao and the children  
would be $2,500 less in the $3,000/year scenario than under the $500/year  
scenario. However, the calculation is more nuanced than this because Mr. Benning  
assumes that if Mr. Gomez was making higher contributions to his parents, he would  
spend less on his own personal consumption. In other words, Mr. Gomez would  
sacrifice his personal expenditures at a higher rate to support his parents in a larger  
amount than if he was supporting them at a lower amount. I find this assumption to  
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Page 20  
be reasonable, having regard to the evidence of Mr. Gomez’s concerns to provide  
for his immediate family.  
[71] Mr. Benning was also asked to consider the fact that Ms. Valencia-Palaciao  
has entered into a common law relationship with Mateo Valez Bedova as of July 1,  
2021 and that she and the children receive financial support from that relationship.  
Ms. Valencia-Palaciao has re-partnered with Mr. Bedova and she and the children  
are benefitting from his income. Mr. Benning was asked to assume Mr. Bedova  
earned $25,000 in 2021 but that his earnings would increase to $100,000 over a ten-  
year period.  
[72] This accords with Mr. Bedova’s evidence. He is self-employed with a  
residential painting business using unusual, specialized paints. It is a new business  
and at the time of trial he had not yet completed his tax return for 2021. However, he  
states in his affidavit that he received $25,000 in business income that year. Based  
on how his business is progressing, he believes it realistic to expect his business  
income will rise to $100,000 over the next 10 years. I accept that evidence.  
[73] Mr. Benning then calculated the past and future financial support that  
Ms. Valencia-Palaciao and the children are expected to receive from Mr. Bedova  
calculated over the same time period and the same methodology used to assess  
Mr. Gomez’s past and future without-accident financial support, but using the income  
assumptions for Mr. Bedova.  
[74] Notably, Mr. Benning was asked to consider Ms. Valencia-Palacio’s re-  
partnering as a certainty, not just a contingency as might typically be done when a  
claimant has not re-partnered. Moreover, he was asked to treat the financial benefit  
of this relationship as enduring through Mr. Bedova’s retirement age. That is, it was  
considered to be a certainty that the relationship would last through Ms. Valencia-  
Palaciao’s lifetime.  
[75] Finally, Mr. Benning assessed the past and future loss of financial support to  
Ms. Valencia-Palaciao and the children by taking the difference between the  
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Page 21  
estimates of past and future financial support Ms. Valencia-Palaciao and the children  
would have received from Mr. Gomez under the without accident scenario and his  
calculation of the support they expect to receive from Mr. Valez Bedova.  
[76] I note that Mr. Benning discounted all future values to express them as  
present-day values.  
[77] Mr. Benning’s analysis results in the following tables (which include an  
amount for loss of household support, which I will discuss later).  
a) Original table, assuming Ms. Valencia-Palaciao would not enter the paid  
workforce:  
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Page 22  
b) Supplementary table, with assumptions of Ms. Valencia-Palaciao entering  
the paid workforce:  
Contingencies  
[78] The next step in the analysis is to account for positive and negative  
contingencies to determine if a further adjustment to the award is required. While  
Coger Estate directs us to consider a potential reduction in the award based on  
those contingencies, Keizer reminds us that allowance must also be made for any  
positive contingencies.  
[79] As noted, Mr. Benning has already accounted for a number of general labour  
market and survival contingencies in his analysis.  
[80] Mr. Benning did not account for the potential for divorce as a negative  
contingency in his primary report. However, in a supplementary report he applied a  
 
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Page 23  
standard divorce contingency which assumes, as of the date of the accident, the  
probability of Mr. Gomez and Ms. Valencia-Palacio ending their relationship was  
equivalent to the average contingency of divorce applicable to males in British  
Columbia as derived from Statistics Canada’s 2001 divorce tables. The effect of this,  
when factoring in Ms. Valencia-Palaciao’s re-partnering with Mr. Bedova, reduces  
the quantum for the future loss of financial support to zero. This is due in part to the  
cumulative risk of divorce being compounded over a long life because of  
Mr. Gomez’s young age when he died.  
[81] Counsel argue the application of the divorce contingency in this case would  
generate an absurd and unjust result. They say this is an outcome Justice  
McFarlane warned against in Cox v. Takahashi, 1977 690 (B.C.C.A.) when  
he said arithmetic is “a good servant, but a bad master” and no substitute for  
common sense. The absurd result, counsel argues, is that the family would be just  
as well off, or better off, with Mr. Gomez’s death than had he survived: Daniels v.  
Jones, [1961] 3 All E.R. 24 at p. 28. They argue this is contrary to common sense.  
These points found favour with the Court of Appeal in Brown v. Finch (1997), 42  
B.C.L.R. (3d) 116 at para. 16 (C.A.). Counsel also urge me to take note of the  
evidence of a strong marriage between Mr. Gomez and Ms. Valencia-Palaciao and a  
substantial unlikelihood of them ending their relationship.  
[82] I agree the evidence indicates a strong relationship. However, the evidence is  
not of a perfect relationship. Particularly in the months before Mr. Gomez’s death,  
there were some tensions in the relationship, evidently due to some financial  
concerns and perhaps some resentment that Ms. Valencia-Palaciao was not in the  
paid workforce, even though Mr. Gomez strongly encouraged her to stay at home  
with the children. In my view, though, this evidence does not suggest a failing  
relationship but rather amounts to the ordinary stresses most relationships  
encounter. Further, this tension likely would have eased as Mr. Gomez advanced in  
his work to a higher-paid position.  
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Page 24  
[83] Further, Mr. Gomez’s parents had moved to Vancouver just weeks before his  
death and were living with Mr. Gomez and Ms. Valencia-Palaciao. Neither parent  
was working at the time, although Ms. Arenas was lining up work with the local  
branch of the company she had worked for in Calgary. Despite that, and despite the  
fact the parents moved in at Mr. Gomez’s invitation, I find Mr. Gomez was feeling  
added financial pressure with the need to support his parents and this likely  
contributed to a strain on the relationship at the time. However, this was expected to  
be temporary and I do not find it increased the likelihood that Ms. Gomez and  
Ms. Valencia-Palacio might split up. I find these tensions are not greater than those  
that undoubtedly exist even in good marriages.  
[84] That said, it would be wrong, in my view, to say there is no possibility of this  
relationship ending at some point. However, the potential for a relationship  
breakdown can be no more than a general contingency, offset by the positive  
contingency that this was a strong relationship, grounded in a cultural ethic of two  
people who came from the same region of Colombia and strengthened by  
Mr. Gomez’s personal commitment to support his family.  
[85] Ultimately, I conclude that the general divorce contingency as analyzed by  
Mr. Benning should not be applied in this case. Apart from the absurd and indeed  
unjust result it would generate, the divorce contingency accounts only for age and  
province of residency. It does not consider child support or spousal support  
obligations that would follow a breakdown in the relationship as a matter of law.  
Child support could be substantial, depending on when, hypothetically, the  
relationship might have ended; and spousal support would likely also have been  
substantial given that Ms. Valencia-Palaciao, at Mr. Gomez’s encouragement,  
stayed home with the children and managed the household. In those circumstances,  
compensatory spousal support would undoubtedly be ordered had the relationship  
broken down at any stage.  
[86] Moreover, Mr. Benning does not consider as a contingency that Ms. Valencia-  
Palaciao’s relationship with Mr. Bedova might end, leaving her without the benefit of  
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Page 25  
his income. As noted, he treated that relationship as a certainty without a  
contingency for it ending. It would be unfair to apply a divorce contingency to  
Ms. Valencia-Palaciao’s relationship with Mr. Gomez but not to her relationship with  
Mr. Bedova.  
[87] In the absence of considering all these factors, I find the divorce contingency  
is unhelpful in this case. For that reason, along with the absurd and unjust result it  
generates and the particular strength of Mr. Gomez and Ms. Valencia-Palaciao’s  
relationship, I decline to apply it.  
[88] I also consider the potential that Mr. Gomez may not have stayed working or  
may not have advanced in his relatively lucrative trade in the cement industry. As I  
have said earlier, I find there is a high probability that he would have stayed in that  
industry and advanced. To the extent I must consider there is some chance he  
would not have, I find this potential negative contingency is more than offset by the  
positive contingency that, if he left the industry, he would have done so for more  
lucrative opportunities. As I have said earlier, I find the positive contingency is  
supported on the evidence of his strong work ethic and his personal drive to support  
his family.  
Assessment  
[89] Based on the evidence and Mr. Benning’s analysis, counsel argue the loss of  
support claim should be awarded as follows:  
$375,000 to Ms. Valencia-Palaciao, which is in the middle of Mr. Benning’s  
estimated range of $350,000-$400,000 for past and future support;  
$80,000 to Mr. Gomez’s son, Juan Diego, which is the high end of a very  
small range of $75,000-$80,000 assessed by Mr. Benning;  
$81,000 to Mr. Gomez’s daughter, Alicia, which is also in the high end of a  
small range of $76,000 to $81,000 assessed by Mr. Benning; and  
 
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Page 26  
$60,000 to Mr. Gomez’s parents, which is roughly in the middle of the range  
of $17,000 to $100,000 assessed by Mr. Benning who, as mentioned,  
considered two different scenarios.  
[90] As I have found above, the assumptions on which Mr. Benning based his  
analysis are reasonable and supported by the evidence and my findings of fact, with  
the exception of the real and substantial possibility that Ms. Valencia-Palaciao would  
have moved into paid employment at some stage in her life. I prefer to use a range  
based on Mr. Benning’s second supplemental report that considers Ms. Valencia-  
Palaciao returning to the paid workforce when Alicia reaches 16. In that scenario,  
the ranges (rounded) are:  
for Ms. Valencia-Palaciao, $348,00 to $396,000;  
for Juan Diego, $73,500 to $78,500; and  
for Alicia, $73,500 to $79,000.  
[91] While there is a real and substantial possibility that Ms. Valencia-Palaciao  
would have entered the paid workforce earlier than Mr. Benning was asked to  
assume, this is offset to a degree by the fact Mr. Benning treated her return to the  
paid workforce as a certainty. I find it highly probable that she would have entered  
the paid workforce, but not a certainty. I acknowledge she has in fact entered the  
paid workforce, painting with her partner’s business, but given the unique  
circumstances of that work, I do not consider it to represent a certainty that she  
would have entered the mainstream, competitive paid workforce. The prospects of  
her returning to paid work earlier than Mr. Benning assumed are also real and  
substantial but the relative likelihood is much less when the children are younger  
than when they were older. Thus, there is some offset between this contingency and  
the contingency that she never would have entered the paid workforce.  
[92] Moreover, as indicated by the two tables from Mr. Benning’s primary and  
second supplementary reports, the effect of Ms. Valencia-Palaciao entering the paid  
workforce on the loss of financial support is relatively small, and a further adjustment  
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Page 27  
to account for the potential of her entering the paid workforce earlier than  
Mr. Benning assumed would even smaller.  
[93] I am therefore satisfied the contingency of Ms. Valencia-Palaciao entering the  
paid workforce earlier than Mr. Benning assumed is significantly offset by the  
contingency that she would never have entered the paid workforce. To the extent it  
does not amount to a full offset, I find the difference is insignificant when one  
considers the conservative assumptions Mr. Benning was asked to make on other  
matters, the positive contingency of Mr. Gomez’s ambition and the potential for him  
to pursue more lucrative opportunities outside the concrete industry, and the fact  
Ms. Valencia-Palaciao’s relationship with Mr. Bedova, and the economic benefit  
derived from that relationship, is treated as a certainty, equal in strength to her  
relationship with Mr. Gomez which was unique for its depth of history and common  
experience. Thus, I consider the range from Mr. Benning’s second supplemental  
report to be an appropriate basis for the assessment of loss of financial support.  
[94] I therefore assess the loss of financial support for Ms. Valencia-Palaciao to be  
$372,000 which is in the middle of the range in Mr. Benning’s second supplemental  
report, and $78,000 for Juan Diego and $79,000 for Alicia which is at the higher end  
of the relatively small range in that same report.  
[95] With respect to support for Mr. Gomez’s parents, I find the middle range of  
Mr. Benning’s assessment to be reasonable. The evidence of the actual amounts  
Mr. Gomez provided to his parents was not specific but I am satisfied on the basis of  
Ms. Arenas’ evidence that, on average, Mr. Gomez provided his parents with at least  
$1,250 annually, which is the midrange of the $500 per annum and $3,000 per  
annum scenarios Mr. Benning was asked to assess.  
[96] I therefore make the following awards for loss of financial support:  
$372,000 to Ms. Valencia-Palaciao;  
$78,000 to Juan Diego;  
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Page 28  
$79,000 to Alicia; and  
$60,000 collectively to Mr. Gomez’s parents.  
Loss of Guidance  
Legal Principles  
[97] A claim for loss of guidance seeks to compensate a claimant, usually a child,  
for the loss of the pecuniary advantage they would have derived from the continuing  
guidance of the deceased had the deceased lived. It has been variously referred to  
as loss of “care, guidance and affection” (McVea v. B.(T.), 2002 BCSC 1407  
[McVea]), “care, guidance, training and affection” (Plant v. Chadwick, 1986  
951 (B.C.C.A.)) “love and guidance” (Collins v. Savovich, 1996 1080  
(B.C.S.C.)); and “care, guidance, training and encouragement” (Coe Estate v.  
Tennant, 1988 3165 (B.C.S.C.) [Coe Estate]). As counsel point out,  
“guidance” is the common element in all these. As with all damages under the Act,  
this must be assessed as, and limited to, a pecuniary loss: Roberts v. Morgan, 2019  
BCSC 2313 at para. 34.  
[98] Acknowledging that money cannot replace a parent and declining to quantify  
the benefits of “one parent’s love and another’s”, courts have generally awarded  
nominal or conventional figures for this head of damages: McVea at para. 75. In  
Plant v. Chadwick, 1986 951 (B.C.C.A.) the B.C. Court of Appeal held that  
conventional figures should be adjusted for inflation and, in that year, suggested the  
conventional figure for loss of guidance should be $20,000 per child. In 2005, Justice  
Pitfield concluded that the conventional figure had risen to $35,000 with inflation:  
Foster v. Perry and VSA Highway Maintenance Ltd., 2005 BCSC 1214.  
[99] In Morrison at para. 125, Justice Verhoeven held that larger awards should be  
given to younger children and smaller awards to older, presumably on the basis that  
older children are deprived of the benefit of the deceased’s guidance for a shorter  
period of their life. He awarded $35,000 for each of the younger children (who were  
   
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Page 29  
8 and 6 at the time of the accident) and $30,000 for the older children (who were 14  
and 12).  
[100] According to Mr. Benning, the $20,000 identified by the Court of Appeal in  
1986 is equivalent to $42,442 in 2022 dollars. The $35,000 identified by Pitfield J. in  
2005 is equivalent to $46,604 in 2022 dollars. The plaintiff submits the inflation-  
adjusted conventional award in 2022 should be set at $50,000. However, applying  
the two calculations provided by Mr. Benning, and considering that Verhoeven J.  
awarded $35,000 in 2009, I would suggest $45,000 is now appropriate as the  
conventional award.  
Analysis  
[101] I accept that each of Juan Diego and Alicia should be awarded the  
conventional amount. The evidence is clear that Mr. Gomez wanted to have a family,  
was excited each time Ms. Valencia-Palaciao became pregnant, and was actively  
involved in the lives of his children. He dedicated himself to his work to provide for  
his children but he made time to play with them after work, taking them to the park or  
playing at home. Ms. Valencia-Palaciao described how Juan Diego looked forward  
each day to the time Mr. Gomez would return from work and watched at the window  
for him to drive up.  
[102] Mr. Gomez also expressed a goal of giving his children the ability to pursue  
post-secondary education without fear of where they would live or how they would  
pay for it. Ms. Arenas testified this was a value she and her husband instilled in their  
kids, including Mr. Gomez, although Mr. Gomez did not have the opportunity to  
pursue higher education in his shortened life.  
[103] The care, attention, and gifts Mr. Gomez gave to his younger brother, who  
was about 10 years his junior, provides further support for Mr. Gomez’s propensity to  
provide care and guidance to younger persons in his family.  
[104] I am satisfied Mr. Gomez was a source of emotional support and guidance for  
the children in his all-too-short time with them, and he would have continued to do  
 
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Page 30  
had he survived. I therefore award $45,000 to each of Juan Diego and Alicia under  
this head.  
Loss of Inheritance  
Legal Principles  
[105] In Panghali at para. 75, Justice Punnett noted that an inheritance, or the  
expectation of one, can play two roles in a wrongful death claim:  
…first, as a head of damages, known as “loss of inheritance,” and second, as  
a deduction from the overall award made to account for any benefits received  
by the claimant in the deceased’s estate.  
The second refers to an accelerated inheritance and has no application to this case.  
[106] Like loss of guidance, courts have generally awarded conventional sums, or  
used them as a basis, for awards of loss of inheritance when there is difficulty in  
predicting what assets a person might have accumulated over a lifespan: Panghali,  
para. 77. That sum was set as a nominal $5,000 per child in 1988 (Coe) and  
repeated without adjustment in 2009 (Morrison) for children. In Morrison, Verhoeven  
J. also awarded $10,000 as a nominal amount to the surviving spouse. In 2002,  
Justice L. Smith made a nominal award of $10,000 to each of two children in McVea  
v. T.B. et al., 2002 BCSC 1407. She observed the evidence in that case did not  
support the premise that the deceased would have accumulated significant assets  
but considered that some award under the heading ought to be made.  
[107] Counsel argue that the nominal amount should be set at $10,000 to account  
for inflation from 1988. I agree that is appropriate for children, but, having regard to  
Verhoeven J.’s higher nominal award to a surviving spouse, I would suggest the  
nominal award for a surviving spouse is more appropriately set at $15,000.  
[108] In cases where there is evidence establishing a pattern of income and  
savings that support the potential for a significant estate remaining at the end of the  
deceased natural lifespan, higher awards have been ordered: Panghali, para. 81.  
   
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Page 31  
Analysis  
[109] At 24 years of age with a young family and a relatively new career,  
Mr. Gomez had little opportunity to save money. However, the young couple had  
managed to put aside a modest amount in the Colombian bank account, earmarked  
for a potential home purchase in that country. Unfortunately, Ms. Valencia-Palaciao  
had to use that money for funeral expenses in Columbia. Nevertheless, it indicates  
an intention to save money and accumulate an asset. There was other evidence of  
Mr. Gomez at least having the intention of saving money, including through RESPs  
for the children. He and Ms. Valencia Palacio would also put small amounts of  
money aside from time to time to cover future unexpected expenses. The evidence  
shows Mr. Gomez was not carefree with his money. An indulgence was an  
occasional soccer jersey.  
[110] The nominal award is made when there is little evidence of a practice of  
saving money. Here, at 24 years of age, Mr. Gomez had no significant opportunity to  
develop a practice but I am satisfied that he had both the intention to save money  
and the took personal responsibility to manage his money carefully. It would be  
unjust to disregard the demonstrated potential that Mr. Gomez would have  
accumulated savings over his lifetime simply because there was not ample time in  
his short life to demonstrate this as a practice. The evidence of him being money  
conscious and having made efforts for some modest savings at his young age is  
compelling. Further, Mr. Gomez was also on the path at a very young age to earning  
a good living in a trade he was skilled at. In my view, this is a case where fairness  
requires more than the nominal amount.  
[111] Counsel argue that an appropriate award for loss of inheritance would be  
$20,000 for each of the children. Further, given the age difference between  
Mr. Gomez and Ms. Valencia-Palaciao, it is likely he would have predeceased her  
and counsel argues an award of $20,000 is also reasonable for her. I largely agree  
with these submissions but I note that a somewhat higher amount would be  
appropriate for Ms. Valencia-Palaciao based on my finding that the nominal award  
for a spouse should be somewhat higher than children. However, I consider the  
 
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proposed $20,000 to be reasonable to account for the contingency that  
Ms. Valencia-Palaciao may have predeceased Mr. Gomez.  
[112] I therefore award $20,000 to each of Ms. Valencia-Palaciao, Juan Diego, and  
Alicia for loss of inheritance.  
Loss of Household Services  
Legal Principles  
[113] An award for loss of household services compensates claimants for the lost  
pecuniary benefit of household services provided to them in life by the deceased.  
The value of the award may be determined by the cost of hiring replacement  
services: McTavish v. MacGillivray et al., 2000 BCCA 164. There are two case-  
specific factual considerations: the level of services that the deceased would have  
provided and the chance that the claimant may replace those lost services with a  
new spouse: McVea at para. 63.  
Analysis  
[114] As I have discussed, Ms. Valencia-Palaciao worked in the home, looking after  
the children. She was the primary caretaker for the children and primarily  
responsible for maintaining the house. However, she testified that Mr. Gomez made  
some contribution to this, including by doing some of the cooking on weekends and  
on special occasions, helping her with tidying the house, dealing with the garbage  
and recycling, and helping her with the laundry. She noted in particular he had a  
propensity for sorting laundry by colour and he took it upon himself to do that task,  
as well as help with folding clean laundry. He also took care of paying the household  
bills, managed the family finances, and drove and refueled the family car.  
[115] Several witnesses spoke of the time Ms. Gomez spent caring for the children.  
Ms. Valencia-Palaciao provided the most detailed evidence of this, describing that  
Mr. Gomez would set aside time after work and on weekends to be with the kids.  
Mr. Gomez’s good friend, Erley Velez, deposed that he saw Mr. Gomez most days  
and often saw him at the park playing soccer with the children or taking them to the  
     
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beach. Mr. Alvarado also deposed that he would see Mr. Gomez playing soccer at  
Bear Creek Park in Surrey and he frequently brought the kids with him. He said  
Mr. Gomez had “lots of energy to play with his children.” He also described  
excursions he and Mr. Gomez went on with their kids to the park for barbecues and  
to the Aldergrove Fair. These times gave Ms. Valancia-Palaciao the opportunity for  
downtime, away from the kids if she chose.  
[116] Ms. Valencia-Palaciao seeks an award of $50,000 to herself for loss of  
housekeeping services and $25,000 to each of Juan Diego and Alicia. This is based  
on Mr. Benning’s analysis which drew on statistical information about the amount  
and time of domestic work, childcare, shopping, and other services that employed  
males with a spouse and children typically perform. This approach was accepted in  
Panghali at paras. 55-63. On the basis of the evidence just described, I find no  
reason to depart from that statistical average and consider it to be a fair way to  
measure the loss in this case. Even if there was a reason to suggest the average is  
too generous in the context of this relationship, I find this would be offset by the fact  
Mr. Benning only calculated the loss to 2021 when Ms. Valencia-Palaciao re-  
partnered and did not provide a contingency for the potential breakdown of her new  
relationship or that Mr. Bedova may not spend the same amount of time with the  
kids that Mr. Gomez did.  
[117] As to the value of the services, Mr. Benning has provided a range of hourly  
rates for different types of cleaners and domestic support workers and ultimately  
analyzed the loss using a replacement value of $22.00 per hour. The Court of  
Appeal recently upheld an award for loss of housekeeping capacity that assessed  
the loss using a replacement value for the services of $20.00 per hour: Steinlauf v.  
Deol, 2022 BCCA 96 at para. 117. Speaking for the Court, Grauer J.A. found that  
amount was not unreasonable and said, “[i]f anything, it seems to me to be a  
conservative one.” I note that the loss of housekeeping capacity in that case did not  
include childcare costs.  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
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[118] Having regard to Grauer J.A.’s comments in Steinlauf and the fact  
Mr. Benning’s analysis includes consideration of time spent caring for the children, I  
consider Mr. Benning’s use of $22.00 per hour as a replacement cost to be  
reasonable.  
[119] Mr. Benning analyzed the loss up to 2021, which is when Ms. Valencia-  
Palaciao re-partnered. He assessed a cumulative loss for Ms. Valencia-Palaciao at  
$48,442 and $25,092 for each of the children. He allocated all the childcare costs to  
the children and the household costs to Ms. Valencia-Palaciao. It seems to me that  
childcare costs might have properly been attributed to Ms. Valencia-Palaciao since  
she is the one responsible for finding or providing replacement services. However, I  
do not understand that apportioning them in this way would change the final result,  
except as to how the damages are allocated as between Ms. Valencia-Palaciao and  
the children and thus I accept it.  
[120] I note Mr. Benning’s analysis includes a discount to account for services that  
Ms. Valencia-Palaciao would have provided to Mr. Gomez had he survived. He also  
provided for a contingency of premature death for Mr. Gomez.  
[121] As noted, Mr. Benning’s analysis goes from the date of death to 2021 when  
Ms. Valencia-Palaciao re-partnered. He did not account for a contingency of a  
potential breakdown in that relationship. With that in mind, I find the amounts sought  
by the plaintiff are relatively conservative and certainly reasonable. I award them the  
the following amounts for loss of household services: $50,000 for Ms. Valencia-  
Palaciao, $25,000 for Juan Diego, and $25,000 for Alicia.  
Special Damages  
[122] The plaintiff claims special damages for funeral and burial costs, grief  
counselling, and emergency childcare services.  
[123] Funeral and burial expenses expressly fall within recoverable expenses under  
s. 3(9) of the Act. In Park v. VW Credit Canada Inc., 2017 BCSC 1733, at paras. 72-  
73, Grauer J. (as he then was) held that funeral expenses under the Act should be  
 
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 35  
given a broad interpretation and include the deceased’s family’s travel and  
accommodation expenses associated with the funeral, as well as food, gasoline, and  
taxi expenses while attending a funeral out-of-town.  
[124] Here, there was a small funeral in British Columbia and then Ms. Valencia-  
Palaciao took Mr. Gomez’s remains to Colombia for a second funeral and to have  
his remains interred. There was an additional cost when it became necessary to  
relocate his ashes. She also paid for the costs of flying her family and Mr. Gomez’s  
parents and brother to Colombia for the funeral.  
[125] Mr. Gomez immigrated to Canada but kept strong ties to Colombia. As noted,  
he and Ms. Valencia-Palaciao visited there and had hoped to buy a home there  
some day. In my view, the expenses of a funeral in both British Columbia and  
Colombia, as well as the travel, accommodation, and other expenses for both, are  
reasonable in the circumstances.  
[126] I also find the need for grief counselling was reasonable and has been found  
to be justified as part of a claim for special damages in Uri Estate v. Pahal, 1994  
380 (B.C.S.C.). I would make that award here.  
[127] I would also award the plaintiff’s modest claim for child care expenses in the  
immediate aftermath of the accident. They are not captured by the loss of  
housekeeping claim as they were extraordinary and necessary in the circumstances.  
[128] Laura Hoffard, legal assistant to the Director of Claims at the Workers  
Compensation Board, summarized the costs incurred by the Board on Ms. Valencia-  
Palaciao’s behalf before trial as follows:  
$1,605 in health care costs, comprised of grief counselling sessions for the  
deceased’s spouse and the services of an Outreach & Transition Services  
social worker for his parents, who resided with the deceased at the time of his  
death;  
Valencia-Palaciao v. KCP Heavy Industries Co. Ltd.  
Page 36  
$10,037.60 in childcare expenses for the deceased’s children in the  
immediate aftermath of his death; and  
$10,000.85 in burial expenses.  
[129] The burial expenses covered the Vancouver funeral. Ms. Valencia-Palaciao  
said costs associated with the Colombian funeral and with repatriating Mr. Gomez’s  
remains to Colombia were in addition to that. These included return-trip airline fares  
for herself, her two children, and Mr. Gomez’s parents and brother. She also had to  
obtain a special container to preserve the remains for air transport and a traditional  
casket for the Colombian ceremony. She estimated these costs, as well as the cost  
of the Colombian ceremony itself, to be between $10,000 - $15,000. However, when  
she gave this estimate she forgot to include the additional cost of having to relocate  
his remains, which she estimated to be $2,500.  
[130] I consider all these amounts to be reasonable and, given the initial error in  
omitting the cost of relocating the remains, I find that $15,000 is reasonable and  
appropriate for the costs for the Colombian funeral.  
[131] Totalling these amounts, I award $36,643.45 for special damages.  
Tax Gross Up and Interest  
[132] The plaintiff asked for leave to make submissions on her entitlement to pre  
and post-judgment interest, tax gross-up, and interest following delivery of reasons  
for judgment as those amounts are dependant on the awards made. I give her leave  
to do so and invite counsel to make those submissions in writing. If counsel wish to  
speak to the matter as well, they may arrange to do so through trial scheduling.  
 
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Page 37  
Concluding Remarks and Costs  
[133] By way of summary, I award damages as follows:  
Loss of financial support  
Ms. Valencia-Palaciao  
$372,000  
Juan Diego Gomez  
Alicia Gomez  
Noridia Obando Arena and Arbey Gomez  
Soto (Mr. Gomez’s parents)  
$78,000  
$78,000  
$60,000  
Loss of guidance  
Juan Diego Gomez  
Alicia Gomez  
$45,000  
$45,000  
Loss of inheritance  
Ms. Valencia-Palaciao  
Juan Diego Gomez  
Alicia Gomez  
$20,000  
$20,000  
$20,000  
Loss of household services  
Ms. Valencia-Palaciao  
Juan Diego Gomez  
Alicia Gomez  
$50,000  
$25,000  
$25,000  
$36,643.45  
Special Damages  
[134] With the exception of a deduction to account for the contingency of  
Ms. Valencia-Palaciao returning to work and a deduction in the loss of guidance  
claimed by the plaintiff, I have largely accepted the amounts the plaintiff has claimed  
under each head of damage. I believe these reasons for judgment explain a rational  
basis for doing, grounded in the evidence, findings of fact, and applicable law.  
[135] I would add, though, that despite this claim being undefended, counsel for the  
plaintiff did not take undue advantage of that circumstance. They provided thorough  
evidence on all material points, and fair and comprehensive submissions on the  
applicable legal principles. They did not overreach on the heads of damages claimed  
and, if anything, were conservative in many respects. Thus, while I have  
substantially accepted the amounts claimed, I am satisfied they are reasonable and  
justified by the evidence and the law.  
[136] Subject to further submissions counsel might wish to make on the issue, I  
would award costs to the plaintiff at scale B. While this matter was undefended, thus  
making the plaintiff’s task less onerous than a disputed trial, counsel diligently  
 
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Page 38  
prepared and presented this case. They tendered evidence on all aspects in strict  
compliance with the rules of evidence and provided detailed and very helpful written  
and oral submissions. I see no reason to award costs on a lower scale.  
“Kirchner J.”  


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