IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150310

Docket: M123833

Registry:
Vancouver

Between:

Rubidia Isabel Guitierrez

Plaintiff

And

Mark Andrew Covvey

Defendant

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

Introduction

[1]            
The evening of December 7, 2010, the plaintiff Rubidia Isabel Guitierrez
had walked more than half way through a marked cross-walk when she was struck
by a cargo van driven by the defendant Mark Covvey. Liability and damages are
in issue. The defendant accepts that he bears some responsibility for the
accident, but contends that the plaintiff also bears at least equal
responsibility.

BACKGROUND

[2]            
Mrs. Guitierrez is 43 years old. The eldest of eight siblings, she was
born and raised in Guatemala. She left school to work when she was 13, but
returned for one more year of school when she was 16. In Guatemala she worked
by weaving traditional clothing using a large hand loom. She also worked at
public markets selling juices and plastic baskets that she made.

[3]            
Mrs. Guitierrez and her husband Manuel Guitierrez come from the same
town in Guatemala. In 1985 Mr. Guitierrez came to Canada. In 1996 Mr. and Mrs.
Guitierrez were married and Mrs. Guitierrez came to Vancouver where Mr.
Guitierrez lives. They have two children: a son who is now 17 and a daughter
who is 12. They live in a one-bedroom apartment near Broadway and Fraser Street
on the east side of Vancouver. They have no vehicle, and rely on public
transit.

[4]            
Since coming to Canada Mrs. Guitierrez has had no further formal
education and has limited job skills. Mr. and Mrs. Guitierrez are both hard
working and pleasant. English is obviously their second language.

[5]            
Mr. Guitierrez is 51 years old. He works on call as a custodian for the
Vancouver School Board maintenance department. He considers himself “lucky”
because he generally works five days a week on the night shift from 11:00 p.m.
to 7:00 a.m. Mr. Guitierrez also works part-time as a receiver-shipper for a
grocery store.

[6]            
Mrs. Guitierrez is not fluent in English. She speaks Spanish. She can speak
and answer in very basic English, if she is spoken to slowly. She began
testifying at trial through an interpreter, but did her best to testify in
English when she could, although she needed the assistance of the interpreter
to understand many of the questions that she was asked.

[7]            
Mrs. Guitierrez’s first job in Canada was working in a factory making
underwear trimmings. In June 1999 she began working as a food production
assistant for Creekside Custom Foods (“Creekside”) on Annacis Island. The
company produces bread, sandwiches, pastries, sushi, and other foods for
distribution to retail distributors, such as WestJet Airlines and BC Ferries.
At some point before the accident of December 7, 2010, Mrs. Guitierrez was promoted
to the position of second cook.

[8]            
Before the accident, Mrs. Guitierrez was a dedicated and committed
employee who performed her job well. She worked in the “cold room” (the
temperature is less than 10°C),
preparing and assembling sandwiches, wraps, and sushi on a conveyor belt
production line. The job requires standing for long periods, moving and
stacking trays of sandwiches, and lifting containers of food and produce weighing
up to 25 pounds. The job also involves using a meat slicing machine that needs
to be lifted, cleaned, and reassembled. During a regular eight hour shift,
there is only one break of 30 minutes for lunch and no other breaks.

[9]            
Before the accident, according to the clinical records of her family
physician, Mrs. Guitierrez had on occasions been treated for anxiety,
depression, and stress, but both Mrs. Guitierrez and her husband denied that or
seemed genuinely surprised when that was suggested to them. That may be
accounted for by language difficulties. However, any symptoms of anxiety,
stress, or depression that Mrs. Guitierrez may have suffered before the
accident never prevented her from working, or from carrying out the normal
activities of her life or household. Despite working a 40-hour week and regular
overtime, Mrs. Guitierrez was also a traditional wife. She did all of the
shopping, cooking, cleaning, laundry, and housework for the family, although
Mr. Guitierrez sometimes helped with the vacuuming.

the accident

[10]        
The accident occurred the evening of Tuesday, December 7, 2010, around
7:00 p.m. at the intersection of Cambie Street and West 8th Avenue, a busy
commercial intersection. On the southeast corner there is a Wendy’s fast food
restaurant, and on the northeast corner there is a Starbuck’s and the entrance
to Winners department store in part of The Rise building complex. Photographs
also show a BC Liquor store on the northwest corner of the intersection, and on
the southwest corner, a Milestones restaurant in a large building complex.
Cambie Street is a main arterial road with two lanes each for northbound and
southbound traffic as well as parking lanes, and a left-turn lane for
southbound traffic turning left or east onto 8th Avenue. A yellow line on 8th
Avenue where the accident occurred divides east and west bound traffic. The
intersection is well lit in the evening.

[11]        
Mrs. Guitierrez finished work at Creekside at 4:00 p.m., took two
buses, and then shopped at London Drugs on Broadway near Cambie Street. After
that she shopped at Save-on-Foods at Cambie Street and West 7th Avenue. She
then walked southbound on the east side of Cambie Street. She was headed
towards Broadway (or what would be 9th Avenue) so she could take the bus to go
home. She wore a black hat, dark pants, and a sky blue jacket with white
stripes on the sleeves. She was carrying her purse, a dark green umbrella
because it was raining, and two white plastic shopping bags.

[12]        
Mrs. Guitierrez testified that when she got to 8th Avenue she stopped
and watched for “the little man” to show up on the pedestrian signal informing her
that she could cross the street. When she saw “the doll”, she looked left and
then right to see if any cars were coming before she began walking across the
street. She was in the crosswalk, just before the yellow line or “the half-way
point”, when she again looked left and right and saw no cars. She was just past
the half-way point when she felt a car hit her around her right hip and knock
her down to the roadway where she struck her left hand and left knee. She heard
nothing before she was struck. It was only after she was struck and was on the
ground that she heard the noise of a tire. She screamed because she saw “the
car” coming on top of her. She was very frightened but stood up on her own. A
man on the street came over to help her to the corner, and someone brought her
a chair to sit on, and some ice and water. Her left knee was very painful, and
she “couldn’t stand the pain”. The palm of her left hand was also very painful.
She cannot identify the vehicle that struck her but remembers it as a large
white van: “the kind the plumbers use”.

[13]        
On cross-examination Mrs. Guitierrez was very clear that she never
turned to face the vehicle before she was struck, or slap the hood of the
vehicle before she fell onto the roadway. She was also very clear that she was
neither walking quickly or hurrying across the road. She said that she was
walking “the way I am doing usually” – which I took to mean that she was
walking neither quickly or in a hurry.

[14]        
Steven Boyce is an environmental consultant. At the time of the accident
he lived on West 8th Avenue, just east of Cambie Street. The evening of
December 7, 2010 he was walking westbound on the north side of 8th Avenue just
east of Cambie Street, when about 15 metres away, at around the 11 o’clock
position, he saw a woman walking southbound across 8th Avenue on the east side
of the intersection. She was carrying a black umbrella and at least two white
grocery bags, and she was wearing dark pants. She was approximately half-way to
three-quarters of the way through the intersection when at the same time he saw
a van making a left-hand turn onto 8th Avenue from southbound Cambie Street. At
that moment he thought it looked like the woman was going to be hit by the van.
The van continued turning as the woman continued walking, and in one or two seconds,
the van struck the woman, and she fell to the ground and lay prone. The impact was
“fairly straight on”, with the front of the van between the headlights,
striking the woman.

[15]        
Mr. Boyce went over to assist Mrs. Guitierrez. He collected her plastic
grocery bags which were on the ground, and he observed that she appeared to be
in shock. He helped her over to the north side of the street and also observed
that she was in pain. She was favouring her left knee and complaining of pain
in her left knee. When she made it clear that she wanted to sit down, he went
to Starbucks and got a chair so that she could sit down. He also applied ice to
her left knee. Either he or another bystander got the ice from a nearby grocery
store.

[16]        
Mr. Boyce was never cross-examined on his evidence that he saw Mrs. Guitierrez
walking southbound through the pedestrian crosswalk. It was never
suggested to him in cross-examination that she was walking quickly, or running
across the crosswalk.

[17]        
The defendant Mark Covvey is 38 years old. He was driving what is
described in the Notice of Civil Claim as a 1999 Ford E250 vehicle. He
testified that his vehicle is a “big” cargo van, approximately 14 feet long,
and “quite heavy”. It was dark and “sort of drizzling” at the time of the
accident. He had come from the West End and was driving home. He drove over the
Cambie Street bridge and into the left hand turn lane so that he could turn
left onto West 8th Avenue. At Cambie and West 8th Avenue, he “took possession
of the intersection” when the light was green and waited for the light to turn
amber and the traffic to clear before starting his turn. When asked how long he
had to wait, he said “some matter of seconds. I’m not certain”. A small red
motor vehicle was clearing the intersection north bound in the curb lane when
he began turning left. As he was turning left, he “saw out of the corner of my
eye a woman sort of…hurriedly running through the crosswalk with her head down
and an umbrella in her hand.” He applied his brakes “vigorously” but as he came
to a “halt”, he “made contact” with her:  she turned to face his van, touched
the hood with her hand, and fell down. She was “centered” in his lane, as was
his van, and the “only thing I could hear was her hand striking the hood of my
van.”

[18]        
In cross-examination Mr. Covvey conceded that “running might be a bit
optimistic. Instead, he said that Mrs. Guitierrez was “hurriedly moving”. He then
testified that she was jogging across the crosswalk. He admitted that he was
aware that there could be pedestrians in the crosswalk, and that the red
vehicle headed northbound and the “A” pillar of his van obstructed his view of
the crosswalk.

[19]        
In cross-examination Mr. Covvey testified that Mrs. Guitierrez “…hadn’t,
I believe, entered the pedestrian crosswalk as I began the left turn.” However,
I find that in making that statement, Mr. Covvey is either trying to avoid responsibility
for the accident, or making an assumption. I say this because he also testified:

Q    I recall
your saying at your discovery she slapped your hood.

A     Yeah, again the details when
this happens this quickly the details are a bit fuzzy.

Q    To be
fair —

A     My recollection is that she
heard the tires squeal, dropped her umbrella, put her hands on her hips. I made
contact with her and she struck my hood and fell down. I — beyond that I — I
can’t give any more detail.

Q    Given
what you just said, in those circumstances and how fast things transpired, she
wouldn’t have had a chance to avoid the impact? Do you think she could have had
— taken time to have evasive action?

A     I — I think that if — if it
— for her, perhaps not. I think somebody younger might’ve been able to, say,
take a step back, but I — it did happen awfully quick. It would be pretty
exceptional for somebody to be able —

Q    A blink
of an eye is what I put to you on discovery.

A     Yeah, I think that’s more or
less fair, you blink for a second and the distance between the sound of the
tires squeaking and the full stop of the vehicle was probably less than a
second.

Q    You
didn’t have a chance to honk your horn?

A     No.

Q    It all
happened really quick?

A     Very quickly.

[20]        
In his examination for discovery on May 14, 2014, Mr. Covvey testified:

Q    Now,
that’s a well lit intersection?

A     It was a reasonably well lit
intersection.

Q    Okay.
And you’re familiar with that intersection?

A     I am, yeah.

Q    Having
made left turns there many times coming home?

A     Several, certainly.

Q    Okay. So
you’re also familiar, Mark, would it be fair to say that it’s also a busy area
because you have what, some big-box stores there, yes?

A     There are now, yeah.

Q    There
was — the area was under construction as well but there were some stores?

A     Certainly.

Q    Meaning there’s
a lot of pedestrians in that area?

A     There are, yeah.

Q    And
having driven that route prior to December 10th, or December 2010 and
subsequent to December 2010, you’re familiar with a lot of pedestrians in that
area?

A     Yes, yeah.

Q    Okay.
Now, according to your evidence, and from what I have heard from others, the
impact happened just in the crosswalk, the pedestrian plaintiff Rubidia
Guitierrez was basically in the middle of the crosswalk between–

A     Beyond the middle of the
crosswalk she would have entered into my lane as it were, the lane I was
destined for making my left-hand turn, so she was beyond the centre of that,
opposite 8th Avenue.

Q    Okay.
Prior to you moving your van away from the impact zone what’s your recollection
of where your van had stopped just following the impact? Were you straddling
the crosswalk?

A     Uh, to the best of my
recollection I was — the nose of my vehicle was in the crosswalk, I had not
overshot the other side of the crosswalk.

Q    Okay.
And she was basically in the crosswalk laying down when you got out of the van
to help her?

A     Uh, yeah.

Q    She
hadn’t gotten up yet?

A     She was up on one hand I
believe.

Q    Okay.
You didn’t have a chance to sound your horn, did you?

A     Oh, no.

Q    It
basically just happened, blink of an eye?

A     Yeah, that’s my recollection.

[21]        
After the accident, Mrs. Guitierrez phoned her husband. By the time Mr. Guitierrez
and their two children arrived at the accident scene, an ambulance was in
attendance, and Mrs. Guitierrez was sitting on a chair on the sidewalk, people
were helping her, and she was holding ice to her knee. The ambulance took Mrs.
Guitierrez and her family to Vancouver General Hospital. While she was in the
ambulance Mrs. Guitierrez felt pain in the left side of her body, including her
neck and behind her left shoulder blade, left knee, left hand and wrist as well
as her lower back. At the hospital, she was examined and her left knee was
bandaged. After about an hour and half, she was discharged and the family took
a taxi home. At home, Mrs. Guitierrez observed swelling on her left knee, left
wrist and forearm.

[22]        
On December 9, 2010, Mr. Guitierrez took photographs of his wife’s very
swollen left knee. However, Mrs. Guitierrez suffered more than a swollen
left knee. She remained off work until November 21, 2012.

[23]        
I will first deal with the issue of liability and then turn to the issue
of damages.

liability

The Pleadings

[24]        
In her notice of civil claim, Mr. Guitierrez alleges particulars of
negligence of the defendant, including the following:

(b)   In
failing to take reasonable and proper steps to avoid a collision in the
circumstances;

(e)   In
failing to yield the right-of-way to a pedestrian contrary to s. 179 of the Motor
Vehicle Act, R.S.B.C. 1996, Chapter 318, and amendments thereto, or approached
to closely thereon that it constituted an immediate hazard;

(g)   In
driving without due care and attention or without reasonable consideration for
other persons using the said highway or at a speed that was excessive relative
to the road, traffic, visibility or weather conditions, contrary to the
provisions of section 144 of the Motor Vehicle Act, supra;

(h)   In
failing to keep a proper or any lookout;

(j)    In
failing to see the Plaintiff in the crosswalk at a reasonable time or at all;

(k)   In
failing to drive the motor vehicle in a careful and prudent manner having
regard to all the circumstances including the rate of speed, the weight and
size of the vehicle, the nature, condition, and use of the highway, the
condition of visibility pertaining at the time, and the traffic that was
actually on the highway, or that might reasonably be expected to be thereon at
the time, and so as not to endanger life or limb or the safety of property;

(l)    In traveling at an excessive or
improper rate of speed.

[25]        
Mr. Covvey, in his response to civil claim, alleges the following
particulars of negligence against Mrs. Guitierrez:

2. At the time of the collision, the Plaintiff:

(a)   Failed to keep any or, in the alternative, an adequate
lookout;

(b)   Failed
to take reasonable or proper or any precaution to avoid the collision;

(c)   Failed
to move reasonably or stop in time to avoid the Collision when the same was, or
should have appeared, imminent;

(d)   Was upon
a roadway without proper care and attention, having regard to the time and
place of the accident, the climatic conditions, the nature of the roadway, the
traffic that was on the roadway;

(e)   Failed
to give any or adequate warning to the Defendant, when the Collision was, or
should have appeared, imminent;

(f)    Left a
curb or other place of safety and walking or running into the path of a vehicle
that is so close it is impracticable for the driver to yield the right of way,
contrary to the provisions of s. 179(2) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318 and amendment thereto;

(g)   Failed
to obey the instructions of an applicable traffic control device, contrary to
the provisions of s. 125 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
and amendments thereto; and

(h)   Was upon a roadway at night
without having taken the precaution of wearing proper or adequate clothing in
the circumstances so as to be visible to motorists on the roadway.

Statutory Provisions

[26]        
Mrs. Guitierrez relies on sections 125, 128, 129, 132, 179, and 181 of
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, the relevant parts of
which provide:

125. Unless otherwise directed
by a peace officer or a person authorized by a peace officer to direct traffic,
every driver of a vehicle and every pedestrian must obey the instructions of an
applicable traffic control device.

128 (1) When a yellow light
alone is exhibited at an intersection by a traffic control signal, following
the exhibition of a green light,

(a) the driver of a vehicle
approaching the intersection and facing the yellow light must cause it to stop
before entering the marked crosswalk on the near side of the intersection, or
if there is no marked crosswalk, before entering the intersection, unless the
stop cannot be made in safety,

129 (1) Subject to subsection
(2), when a red light alone is exhibited at an intersection by a traffic
control signal, the driver of a vehicle approaching the intersection and facing
the red light must cause it to stop before entering the marked crosswalk on the
near side of the intersection, or if there is no marked crosswalk, before
entering the intersection, and subject to the provisions of subsection (3),
must not cause the vehicle to proceed until a traffic control signal instructs
the driver that he or she is permitted to do so.

(4) When a red light alone is
exhibited at an intersection by a traffic control signal,

(a) a pedestrian facing the
red light must not enter the roadway unless instructed that he or she may do so
by a pedestrian traffic control signal,

(c) a pedestrian proceeding
across the roadway and facing the red light exhibited after he or she entered
the roadway

(i) must proceed to the
sidewalk as quickly as possible, and

(ii) has the right of way for
that purpose over all vehicles.

132 (1) When the word
"walk" or an outline of a walking person is exhibited at an
intersection by a pedestrian traffic control signal, a pedestrian may proceed
across the roadway in the direction of the signal in a marked or unmarked
crosswalk and has the right of way over all vehicles in the intersection or any
adjacent crosswalk.

(3) When the word
"wait", the words "don’t walk" or an outline of a raised
hand are exhibited at an intersection or at a place other than an intersection
by a pedestrian traffic control signal,

(a) a pedestrian must not
enter the roadway, and

(b) a pedestrian proceeding
across the roadway and facing the word "wait", the words "don’t
walk", or an outline of a raised hand exhibited after he or she entered
the roadway

(i) must proceed to the
sidewalk as quickly as possible, and

(ii) has the right of way for
that purpose over all vehicles.

179 (1) Subject to section
180, the driver of a vehicle must yield the right of way to a pedestrian where
traffic control signals are not in place or not in operation when the
pedestrian is crossing the highway in a crosswalk and the pedestrian is on the
half of the highway on which the vehicle is travelling, or is approaching so
closely from the other half of the highway that he or she is in danger.

(2) A pedestrian must not
leave a curb or other place of safety and walk or run into the path of a
vehicle that is so close it is impracticable for the driver to yield the right
of way.

…

181 Despite sections 178, 179
and 180, a driver of a vehicle must

(a) exercise due care to
avoid colliding with a pedestrian who is on the highway,

(b) give warning by sounding
the horn of the vehicle when necessary.

The Duty of Care of Drivers and Pedestrians

[27]        
In Wotherspoon v. Hameluck, 2014 BCSC 2137, Chief Justice Hinkson
referred to nine cases dealing with the duty of care of drivers and pedestrians
and summarized them at paras. 17 to 28:

[17] As Mr. Justice Anderson stated for the majority in Cook
v. Teh, 45 B.C.L.R. (2d) 194 (C.A.) at 203:

…s. 181(1) and (2) does not constitute an exclusive code
relating to rights of way between pedestrians and vehicles. They are not a
substitute for the common law duty of care owed by pedestrians and drivers to
exercise due care for their own safety and the safety of others.

[20] In Hmaied v. Wilkinson, 2010 BCSC 1074, Madam
Justice Dickson discussed the relative duties of motorists and pedestrians at
paras. 22 – 24:

[22] When an accident occurs on a highway, the starting
point for analysis is a determination of who had the right of way. Generally
speaking, the party with the right of way is entitled to assume that other
highway users will obey the rules of the road: Enright v. Marwick, 2004
BCCA 259 at para. 22. In particular, drivers are ordinarily entitled to expect
that adult pedestrians will not jump out directly in front of them as they are
proceeding lawfully along their way: Enright, supra at para. 35; Ibaraki
v. Bamford, [1996] B.C.J. No. 724 at paras. 12-13.

[23] Regardless of who has the right of way, however, there
is a duty upon drivers and pedestrians alike to keep a proper lookout and take
reasonable precautions in response to apparent potential hazards

[21] Nelson (Guardian ad litem of) v. Shinske (1991),
62 B.C.L.R. (2d) 302 involved a pedestrian who had crossed almost all of five
lanes of a street in a crosswalk, against the “Wait” signal. She was struck by
the defendant’s vehicle when she was only a few steps from the curb she was
trying to reach. The defendant did not see the plaintiff before she struck her
with her vehicle. Mr. Justice Fraser apportioned liability equally between the
parties, holding that the presence of the plaintiff in the crosswalk was not an
unforeseen emergency, but rather a reasonably apparent possibility, and that
had the defendant maintained a proper lookout, she would have seen the
pedestrian and could reasonably have avoided the collision.

[23] In Claydon v. Insurance Corporation of B.C., 2009
BCSC 1077, a pedestrian was walking across 152nd Street in Surrey, B.C. when
she was struck and knocked to the ground by a vehicle driven by an unknown
person. The plaintiff contended that the unknown driver was negligent in
driving too quickly without regard for the safety of pedestrians. Madam Justice
Baker found that where a pedestrian has established prior entry at an
intersection she need not yield the right of way to a vehicle, even when not
crossing at a crosswalk. She held that the accident was primarily the result of
negligence on the part of the unknown driver in driving at an excessive rate of
speed, failing to signal her intention to make a right turn, failing to
anticipate pedestrians crossing the street, and failing to yield to pedestrians
on the street when they were there to be seen.

[26] In Niitamo v. ICBC, 2003 BCSC 608 at para. 22,
Madam Justice Ballance held that a marked crosswalk is precisely the place
where a motorist could reasonably expect to encounter another user of the road,
and that in approaching a marked crosswalk in anticipation of crossing through
it, a motorist assumes a heightened duty to take extreme care and maintain a
vigilant lookout for those who might be in the crosswalk.

[27] Niitamo was
considered by Mr. Justice Brown in Dobre v. Langley, 2011 BCSC 1315,
where, at para. 43 he stated that “[o]ne need not adopt the statement at para.
22 of Niitamo that a driver approaching a marked crosswalk must exercise
"extreme care" to concur with the gist of the point that heightened
vigilance is expected of a driver approaching a marked crosswalk, especially
one that is so clearly marked by road painting, overhead signs and flashing
lights, once activated.”

[28]        
Mrs. Guitierrez relies on Sheng v. Davis, [1998] B.C.J. No. 2932
(C.A.), which upheld the finding of the trial judge that the defendant driver
had a statutory duty to yield to the plaintiff pedestrian who wore dark
clothing on a dark night in an unmarked crosswalk. The pedestrian was there to
be seen, but was not seen by the driver. Madam Justice Newbury stated:

2  The plaintiff was a pedestrian who was crossing
Imperial Street in Burnaby at about 6:00 p.m. on a dark evening. He was wearing
dark clothes and was crossing north to south in an unmarked crosswalk which was
somewhat lit, but not brightly lit. After waiting a few moments for westbound
traffic to clear along McKay Avenue, he proceeded into the unmarked crosswalk
to the middle of the street, and then waited for eastbound traffic to clear so
that he could cross to the other side. While standing there, he did not look to
his left to check westbound traffic again, and did not hear the approach of the
defendant’s car.

3  The trial judge
accepted the defendant’s evidence that she was travelling at less than the
posted speed of 50 km/h, and did not see Mr. Sheng until he was beside her and
about to come into contact with the driver’s side or left mirror of her car.
She was unable to take evasive action, and the outside mirror struck the
plaintiff’s left hip and threw him to the ground.

4  The trial judge found that it was not
unreasonable in the circumstances for the plaintiff to have been focusing his
concentration on the eastbound traffic, and that he had been in the unmarked
crosswalk as defined in the Motor Vehicle Act. He then concluded:

The plaintiff was standing motionless in dark clothing, and
the defendant was facing the steady stream of headlights from eastbound
traffic. Nonetheless, the plaintiff was there to be seen in an unmarked
crosswalk, and the defendant did not see him. In my opinion, this is a case
that falls within the authority of Cerra v. Bragg, a decision of Mr. Justice
Fulton of this court, dated April 22, 1980, unreported. Vancouver Registry
number B790322.

The plaintiff had the statutory right-of-way pursuant to s.
181(1) of the Motor Vehicle Act, now 179(1), [1996] R.S.B.C., chapter
318.

While the plaintiff’s dark clothing rendered him harder to
see, that is not in itself contributory negligence. Having proceeded to the
middle of the intersection reasonably and looking to the eastbound traffic flow
in order to negotiate the balance of the crossing in safety, I do not think
that the plaintiff was negligent in failing to observe the approach of
westbound traffic, including the plaintiff. Had he done so, he could only have
avoided the risk which he faced by retreating back to the north curb or
attempting to dodge the traffic coming at him both ways in the middle of the
intersection.

In my view, the law does not impose that obligation upon
him. His passage across the westbound lane was safe when he made it. It may be
that the eastbound motorists are the real culprits in this case for failing to
yield the right-of-way to the plaintiff, but that does not assist the
defendant. She had the statutory duty to yield the right-of-way, and she failed
to do so.

While I sympathize with the circumstances in which the
defendant found herself, I must find her one hundred percent liable for this
accident.

7  This plaintiff had
entered the crosswalk in safety and was waiting for a gap in the traffic so
that he could complete his crossing. In general, the duty on a motorist
codified in s. 179(1) of the Motor Vehicle Act is to yield the
right-of-way to a pedestrian and permit the pedestrian to assume that duty will
be observed and traffic will yield to him.

[29]        
Mrs. Guitierrez also relies on Suedat v. Kara, 2014 BCSC 1837,
where the plaintiff had made “a substantial entry” into a marked crosswalk when
she was struck in a marked cross-walk by a motorist making a left hand turn. Justice
G.P. Weatherill summarized the applicable law at paras. 16 to 20 and stated:

[16] Once a pedestrian has safely entered a crosswalk,
absent any negligence on the pedestrian’s part that could mislead a motorist
into thinking he or she could proceed safely, the pedestrian may assume that
motorists will yield the right of way to them and will share no responsibility
if struck in the crosswalk (Miksch v. Hambleton, [1990] B.C.J. No. 1810
(S.C.)).

[17] Negligence on the part of a pedestrian in a crosswalk
must be proven by the defendant on the balance of probabilities. In Feng v.
Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), Wallace J.A. stated at page 120:

In my view the plaintiff in the circumstances of this case
was entitled to assume that the defendant was going to obey the law and yield
the right-of-way to her. Her right to rely on that assumption continued until
such time as she knew, or ought to have known, that the defendant was not going
to grant her the right-of-way, whereupon the plaintiff’s obligation to avoid
injury to herself superseded her right to exercise her right-of-way. The
onus is on the defendants to establish that the plaintiff knew or ought to have
known, that the defendant driver was not going to grant her the right-of-way,
and that, at that point of time, the plaintiff could reasonably have avoided
the accident.

[Emphasis added in Suedat.]

[18] Pedestrians in crosswalks are not required to exercise
“extreme vigilance” to ensure they won’t be struck (Jung v. Krimmer
(1990), 47 B.C.L.R. (2d) 145 (C.A.), leave to appeal ref’d 135 N.R. 201n
(S.C.C.)). To prove contributory negligence on the part of a pedestrian, the
defendant must show more than inattention. A defendant must also establish (1)
at what distance the pedestrian should have realized from the speed of the
approaching vehicle it was not going to yield; (2) it would it have been
possible for a pedestrian to avoid being impacted; and (3) that a reasonable
person in the circumstances of the plaintiff should have taken evasive action
to avoid the impact: Foreman v. Mortz, 2001 BCSC 95; Dionne v.
Romanick, 2007 BCSC 436; Farand v. Siedel, 2013 BCSC 323; Paskall
v. Scheithauer, 2014 BCCA 26.

[19] The fact that the plaintiff was wearing dark clothing
and using a dark umbrella is not evidence in and of itself that she was
contributorily negligent. She was entitled to wear whatever colour and clothes
that was appropriate that evening and there was no evidence that her failure to
wear light clothing would have prevented being struck (Achilleos v. Nix,
2000 BCSC 1422).

[20] The plaintiff was in a
marked crosswalk, although probably running. The left front of the defendant’s
vehicle struck the plaintiff who was moving from the defendant’s right to left.
The plaintiff was there to be seen.

[30]        
In support of his claim for contributory negligence, Mr. Covvey relies on
Furness v. Guest, 2010 BCSC 974, Rahal v. Bonk, [1993] B.C.J. No.
2350, Krause v. McFall, [1997] B.C.J. No. 2371. In response to the claim
for contributory negligence, Mrs. Guitierrez relies on Petijevich v. Law,
[1968] S.C.J. 95, Coso v. Poulos, [1969] S.C.R. 757, Traynor v.
Degroot, 2003 BCCA 483 at paras. 12 to 14, Ng v. Nguyen, 2008 BCSC
1830, Miksch v. Hambleton, [1990] B.C.J. No. 1810, and Balzer v.
Defreitas, [1989] B.C.J. No.1322.

[31]        
I do not propose to summarize all of the authorities, because each case
depends on its particular set of facts. What the authorities emphasize is that
the applicable statutory provisions impose a very high standard of care on drivers
approaching a marked crosswalk.

[32]        
Mrs. Guitierrez testified that she looked left and right before she
entered the crosswalk, and then left and right again before walking on the
south portion of the crosswalk. She saw no cars and continued on her way. She
was just past the half-way point when she felt a vehicle hit her and she fell
down.

[33]        
The evidence of Mr. Boyce which was unchallenged, amounts to this:  Mrs. Guitierrez
was walking and was at least half-way through the crosswalk when at the same
time Mr. Covvey continued making his left hand turn. In one or two seconds he
struck her. She was in the middle of the south side of the crosswalk and was
struck “straight on” by the front of the van between the headlights.

[34]        
Mr. Covvey testified that the details of the accident are fuzzy because
it happened in a split second or blink of an eye. He testified that Mrs.
Guitierrez dropped her umbrella, put her hands on her hips, struck his hood
with her hand and fell down. Beyond that, he cannot give any more detail.

[35]        
Mr. Covvey relies on the evidence of Winston Chow, senior traffic
engineer with the City of Vancouver, relating to the timing sequence of the
lights at the intersection. Mr. Chow testified that the walk sign is on for a
minimum of 23 seconds, the amber light for southbound traffic is 3.5 seconds,
and when the amber light is engaged, the pedestrian signal sign for the West
8th Avenue crosswalk has a do not walk sign.

[36]        
Mr. Covvey argues that the court has to decide who is “more credible”:
he or Mrs. Guitierrez. She claims that she entered the crosswalk when the pedestrian
walk sign came on, but any reasonable person could clear the crosswalk in 23
seconds. Mr. Covvey argues that he turned left on an amber light in which case
the crosswalk sign would be “do not walk”. He further argues that Mrs.
Guitierrez was crossing the road under an umbrella, looking straight ahead, and
is unable to explain why she did not see his van before she was struck. She
therefore failed to keep any lookout for her own safety.

[37]        
I do not accept Mr. Covvey’s argument that Mrs. Guitierrez ought to have
jumped backwards in order to avoid being struck. There is no such duty on her
part. I also do not accept that once she stepped into the crosswalk she somehow
had an obligation to constantly look around for oncoming traffic.

[38]        
Mr. Covvey suggests that Mrs. Guitierrez looked at him and slapped the
hood of his van before falling down. I find it is more likely that by the time
he saw Mrs. Guitierrez, it was too late for him to take evasive action. In
a blink of an eye he saw her and struck her.

[39]        
Although Mr. Covvey states that he began making his left hand turn on an
amber light, I find that many of his answers amounted to a guess or an
assumption on his part. I prefer the evidence of Mr. Boyce and Mrs. Guitierrez
and wherever there is a conflict between the evidence of Mr. Covvey and their
evidence, I prefer their evidence.

[40]        
I conclude that Mrs. Guitierrez was walking – not running or jogging –
through a marked crosswalk when the pedestrian crossing sign allowed
pedestrians to walk. She was past the middle of the crosswalk and in the middle
of the east-bound lane when she was struck straight on by Mr. Covvey’s van. She
was there to be seen, and Mr. Covvey is fully responsible for not exercising
due care and attention by failing to see her until it was too late. Accordingly,
I find him fully liable for the accident.

Damages

The Plaintiff’s Injuries

[41]        
The first month after the accident, Mrs. Guitierrez was in a lot of pain
from her neck down to the palm of her left hand and thumb. Her lower back and
her left leg and right hip hurt. She could not lie down because of the pain,
she could only sit for short periods of time, and standing was very difficult.
She only left home to see her family physician and attend physiotherapy. She could
not care for the household on her children who were then 9 and 13 years old.
Mr. Guitierrez stepped in and took care of the children by taking them to
school, picking them up, and making their lunches. He also started doing the
cooking, the dishes, the laundry, making the beds, shopping for groceries, and
nearly all of the chores that his wife did before the accident.

[42]        
Mr. Guitierrez testified that before the accident, generally every day
after work his wife would go shopping for groceries or for whatever they
needed. After the accident, he had to do the grocery shopping alone. But he
“just grabbed” whatever they needed when he was in the produce department. His
wife complained about the fruits and vegetables he brought home: they were
rotten or somehow not right. Because of the poor produce he bought, on the
weekends when he was not working, they took the bus to go shopping together so
that she could select the fruits and vegetables.

[43]        
Mr. Guitierrez continued to do the housework and to look after the
children in 2011. He accompanied Mrs. Guitierrez on all of her doctors’ appointments,
except when he worked during the day, in which case her friend Jane Cobbler
took her to her appointments.

[44]        
Within the first month of the accident Mrs. Guitierrez became afraid to
leave the house. She said that she felt her life was not safe on a street. Mr.
Guitierrez said that his wife was very sad, very worried, and felt like her
life was worthless. As a family they used to enjoy going to the park and to the
mall. After the accident, Mrs. Guitierrez was not only afraid to leave the
house, she was afraid to cross a street without him or the children. She was
afraid to take public transit.

[45]        
Mrs. Guitierrez says that she remains scared or frightened to cross a
main street.

[46]        
For the first month or two following the accident, when Mrs. Guitierrez
had any place or appointment she needed to attend, whether it was the Insurance
Corporation of British Columbia (ICBC) to make her statement, various treating
physicians or other appointments relating to her injuries, she was driven by Jane Cobbler,
who also helped her with English language difficulties.

[47]        
For the first year following the accident, Mrs. Guitierrez attended
various therapies including physiotherapy and acupuncture. She saw an
occupational therapist, and a kinesiologist who showed her how to do exercises
at home and at the community centre where she did pool exercises for her lower
back, knee, and leg. She saw the kinesiologist regularly over five and a half
months in 2011. She also saw Dr. Heather Underwood, a physiatrist, on four
occasions in 2011, and followed her advice to exercise. She continues to see
Dr. Underwood on a fairly regular basis.

[48]        
Working at Creekside, Mrs. Guitierrez was entitled to group benefits
because she worked full-time: eight hours a day, five days a week. The group
benefits include a weekly income benefit to a maximum of 17 weeks, long term
disability benefits, prescription drugs, vision care, dental plan, medication,
and other benefits for herself and her family. However, to qualify for group
benefits, Mrs. Guitierrez had to be actively at work full-time. On or
about October 31, 2011 Mrs. Guitierrez was “cut off’ from her group benefits.

[49]        
Between August 2011 and March 2012, Mrs. Guitierrez had 18 sessions with
Dr. Natacha Ferrada, a registered psychologist who speaks Spanish. According to
the report of the psychologist, Dr. William J. Koch, Dr. Ferrada helped
Mrs. Guitierrez by “develop[ing] an exposure hierarchy related to crossing
small streets, and [on] January 11, 2012, began exposure to crossing larger
streets, so that [she] was eventually able to travel to her therapy sessions on
her own in late January 2012.” Mrs. Guitierrez’s therapy with Dr. Ferrada
also included passive relaxation, breathing exercises, visualization, mood management,
and pain management. By February 2012, Dr. Ferrada wrote that Mrs. Guitierrez’s
mood was 40 percent better, she was sleeping better, and feeling less neck and
back pain.

[50]        
Before October 31, 2011, when Mrs. Guitierrez was cut off from her
fringe benefits, she, her husband, and their two children went to the dentist
every six months for regular check-ups. Without the dental benefits, the family
could not afford to see the dentist. It was only in June 2014 that Mrs.
Guitierrez took her daughter to the dentist because she was in pain. Her
daughter needed to have “some filling” but because the cost was $250, her
daughter has not had her teeth filled. When Mrs. Guitierrez had dental
benefits, her group coverage provided her with $2,000 towards her son’s braces.
Her daughter now needs braces but the family is unable to afford to pay for
them.

[51]        
ICBC paid for Mrs. Guitierrez’s physiotherapy treatments, her sessions
with Dr. Ferrada, the occupational therapist, the kinesiologist, and the cost
of the community centre where Mrs. Guitierrez did her swimming exercises.

[52]        
Despite all of the therapies and exercise, Mrs. Guitierrez still
suffered from pain, numbness, and tingling in her left hand. Her hand was weak,
and she could not even hold a cup. Her left shoulder was weak, and she was
unable to stand up or sleep properly because of the pain, particularly on her
left side. She was tired all of the time and had no energy. Her evidence about
her pain symptoms is corroborated by her husband, Jane Cobbler, and the medical
evidence which I will outline later.

[53]        
Before the accident Mrs. Guitierrez enjoyed cooking for her friends. She
no longer has friends over for dinner. She no longer socializes with her
friends as she did before the accident. She testified that she does not know
why. Sometimes her friends will call her, but she does not feel like answering their
call or talking to them. Before the accident, she and her husband took the
children to the movies, and sometimes to the aquarium, the park, or to the
malls. They usually went out every weekend. It was not until around July 2011
that Mrs. Guitierrez was able to go out to see a movie.

[54]        
On March 14, 2012, at the request of ICBC, Mrs. Guitierrez was examined
by Dr. Iain G. Dommisse, an orthopaedic surgeon. Following receipt of Dr.
Dommisse’s report dated March 22, 2012 which stated that Mrs. Guitierrez was
not disabled from working, ICBC stopped paying her wage loss benefits of
approximately $1200 a month, stopped paying for all of her various therapies, including
Dr. Ferrada, and informed her that she had to return to work by May 2012.

[55]        
Mrs. Guitierrez therefore last saw Dr. Ferrada on March 16, 2012.

[56]        
Mrs. Guitierrez said that she did not return to work in May 2012 because
she was still in a lot of pain. She returned to work in November 2012.

[57]        
Jane Cobbler and Mrs. Guitierrez have known each other for 10 years.
Their sons attend the same school, are the same age, and are now in grade 12.
Ms. Cobbler and Mrs. Guitierrez met when their sons were in grade 3 and attended
weekly catechism classes which continued for four years until their sons were
in grade 7. Neither woman has family in Vancouver and became fairly close to
each other.

[58]        
Jane Cobbler testified that she helped drive Mrs. Guitierrez to her
appointments, sometimes dropping her off and picking her up, and at other times
helping her with her English language difficulties when dealing with the ICBC
adjuster, the kinesiologist, or Dr. Underwood. The only thing Ms. Cobbler said
that she could not help Mrs. Guitierrez with after the accident was with the
cooking because she cannot cook.

[59]        
 Ms. Cobbler testified that before the accident, she never observed Mrs. Guitierrez
to have any physical problems or difficulties; she appeared healthy. After the
accident, her left side became “problematic”. She could not raise her left arm,
carry anything, and she complained about pain in the left side of her body. She
complained that she could not sleep because of the pain, and she could not lie down
on her left side. Even now, she cannot fully lift her left shoulder: “I can
boogey; she can’t boogey”.

[60]        
Ms. Cobbler testified that she was aware that the accident affected Mrs. Guitierrez
emotionally. She became fearful of what was going to happen in her life, fearful
about going outside, fearful of crossing the street or taking public transit. Ms.
Cobbler testified that in 2011 she encouraged Mrs. Guitierrez to
“gingerly” try getting back into her daily routine, and not be afraid. In 2012,
she told Mrs. Guitierrez to take her phone number, take the bus, go to
work, call her if she could not make it, and she would come and get her. She
encouraged her to practise crossing the street, not to freeze in the middle of
the street when a car was turning, and to take public transit. Ms. Cobbler said
that it was difficult for Mrs. Guitierrez, but she made the effort.

[61]        
Ms. Cobbler saw Mr. Guitierrez take over the cooking and the cleaning. She
testified that Mrs. Guitierrez could not even stand up to make dinner for
her family. When Mr. Guitierrez was at work, the children who were then 9
and 13 years old, pitched in to help.

[62]        
Ms. Cobbler testified that she was “not in agreement” when Mrs.
Guitierrez returned to work because she was still not physically strong enough,
and her left shoulder was still giving her problems. She told Mrs. Guitierrez
that if she had to return to work, she should take baby steps and not push it. She
also told Mrs. Guitierrez to tell her supervisor if she was having pain
when she was at work, so that she would not damage her shoulder any further.
Ms. Cobbler went so far as to call someone at Creekside about Mrs. Guitierrez’s
difficulties.

[63]        
Ms. Cobbler observed Mrs. Guitierrez after her return to work. Standing
at work caused pain in her knee, the pain in her knee became more intense at
night, and after work she has pain in her lower back and increased pain in her
left shoulder and wrist. The most striking difference between Mrs. Guitierrez
before and after the accident is her “physicality”. Her strength has diminished
as a result of the accident, and even now, she cannot vacuum.

[64]        
Ms. Cobbler also testified that Mrs. Guitierrez is no longer as social as
she was before the accident. When their sons were in elementary school, Ms.
Cobbler was president of the parents’ association. They had a monthly gathering
where each parent was required to bring their “cultural food” for a potluck
dinner – except for Ms. Cobbler because she cannot cook. Mrs. Guitierrez
always brought a dish for the dinner, but after the accident she no longer
brought a dish, and she could not tell Mr. Guitierrez how to prepare a
dish. After the accident, Mrs. Guitierrez no longer did volunteer work for the
school.

The Plaintiff’s Return to Work

[65]        
Mrs. Guitierrez began a graduated return to work on November 21,
2012. She worked four hours a day, three days a week, for around three months.
She then increased her hours to five hours a day, three days a week. She did
that for a couple of months before increasing her schedule to six hours a day,
three days a week. At the time of trial she was working seven hours a day, four
days a week. She claims that she has been unable to return to work full-time
because of pain.

[66]        
Mrs. Guitierrez testified that she finds her pain at work “very hard”
because she can no longer stand like she did before the accident. Standing
causes her lower back and neck to hurt even more, and wrapping the sandwiches
causes her hand to “hurt so much”. She is no longer able to pull or lift the
large trays of sandwiches, lift or carry the containers of food, or lift,
assemble, and disassemble the cutting machine. Her co-workers help her whenever
she needs help, but after standing for just one hour, she feels as if her back
is broken. She needs to walk around and work at different work stations, rather
than work as she did before the accident or as the job requires: standing for
eight hours a day in the cold room with only a 30-minute break for lunch.

[67]        
Mrs. Guitierrez says that at the end of her work schedule she cannot
leave work right away because she is so tired and her lower back, neck and
shoulder hurt so much that she must do some stretching exercises for 10 minutes
or so before she is able to start her transit ride home. To get home she takes
a bus from Annacis Island to 22nd Avenue where she catches the Sky Train to
Commercial and Broadway where she takes the Broadway bus to Fraser Street, and
walks two blocks home. It takes her at least one hour to get home, and that is
only when there is no traffic on Annacis Island. She is paid $13.61 an hour
plus an additional 15 cents an hour for working inside the cold room. Because she
is not working a full eight-hour day, she is not entitled to any group
benefits.

[68]        
Josephine Cutz has been employed by Creekside since 1993, and is
currently a production supervisor. Mrs. Cutz and Mrs. Guitierrez are married to
brothers – or as Mrs. Cutz put it, “she’s my brother-in-law’s wife”. Mrs. Cutz
visited Mrs. Guitierrez “a few times” at her home before she returned to work. Whenever
she visited, Mrs. Guitierrez sat in a chair, and she always talked about
flashbacks of the accident.

[69]        
At the time of the accident, Lilian Fajardo was Mrs. Guitierrez’s
supervisor, but Ms. Fajardo went on maternity leave, and Mrs. Cutz became and
remains Mrs. Guitierrez’s supervisor. However, Mrs. Cutz observed Mrs.
Guitierrez working in the plant before the accident of December 7, 2010.

[70]        
There are four supervisors at the same level as Mrs. Cutz. There are
other supervisors but they supervise other areas of the plant. There are four
first cooks who report to Mrs. Cutz, and Mrs. Cutz reports to the plant
manager. There are nearly 100 employees working at the Creekside plant. Approximately
30 to 40 percent of the employees work in the cold room.

[71]        
Mrs. Cutz testified that before the accident, Mrs. Guitierrez was able
to assemble, disassemble, and sanitize the heavy slicing machine, lift
containers weighing up to 25 pounds, prepare sandwich fillings, and work
standing beside the conveyer belt assembling, wrapping, and labelling the
sandwiches. There are two to seven workers working and standing by the conveyer
belt making and assembling sandwiches, and the number of workers depends on the
number of items there are in the different types of sandwiches and wraps.

[72]        
Mrs. Guitierrez worked 40 hours a week in the cold room, or eight hours
a day, with a paid 30 minute break. She worked overtime ranging from 15 minutes
to three to four hours, depending on the production day. If overtime is
required to meet the production demands, employees in the position of Mrs.
Guitierrez are required to work overtime.

[73]        
Before the accident, Mrs. Guitierrez had annual performance reviews, and
she was considered a valued employee. She was committed to her work, she was a
very happy employee who was pleasant to work with, and there were no complaints
about her from any of her co-workers. However, no performance reviews have been
carried out since she has returned to work following the accident because she
is not working full-time. After nearly two years, she has still not returned to
her regular duties or her regular 40 hours a week and overtime.

[74]        
Mrs. Cutz testified that although Mrs. Guitierrez’s hours of work have
increased, her work performance “hasn’t changed that much.” She is unable to
perform her work as she did before. She is no longer a very happy employee. She
no longer wants to talk much, and when she does talk, she always talks about
the accident, and at times she becomes very emotional.

[75]        
Mrs. Cutz testified that Mrs. Guitierrez is not able to do “much
standing”. She would normally have to stand in one place for a minimum of one
hour, but she cannot stand that long. A few times a day, she needs to walk
around before returning to her “work place”. She is also not doing all of the
work she did before the accident, but is “doing really light job”:  putting
ingredients in a sandwich, sometimes labelling the sandwiches, but she is no
longer able to keep up with the speed of production, she has problems working
with her hands, but tries her best. Her co-workers must help her to lift and
move heavy things like the sandwich trays which have 40 sandwiches on each
tray, the trays need to be stacked, and each tray weighs between 5 to 10
pounds.

[76]        
Mrs. Cutz testified that from time to time, they encourage Mrs. Guitierrez
to return to work full-time, but she cannot work more than she is currently
working, and every two months they receive a note from her doctor’s office that
she is not able to work any additional hours. It means that overtime is no
longer available to her, because she cannot work the regular eight hours a day.
Before the accident, there was opportunity for Mrs. Guitierrez to be promoted to
first cook or team leader, but that opportunity no longer exists because she is
unable to work even regular hours, let alone overtime hours.

[77]        
Mrs. Cutz said that there are many employees at Creekside who are not
working full-time, but Creekside requires full-time employees. Creekside
expects employees on a graduated return to work program to return to their
regular full-time work, and Mrs. Guitierrez is their “longest employee” who has
not returned to work full-time. I took from Mrs. Cutz’s evidence that she meant
that no other employee at Creekside has taken as long as nearly two years
before they were able to return to their regular full-time work schedule.

[78]        
What is clear from Mrs. Cutz’s evidence is that at some point Creekside
will have to determine whether they will allow Mrs. Guitierrez to continue
working only seven hours a day “and not performing as before”, or whether they will
terminate her employment. Whether she is kept on as an employee or let go
“depends on my boss”, the plant manager. I gained the impression from the tone
of Mrs. Cutz’s evidence and her demeanor, that she was concerned with whether
Mrs. Guitierrez will continue to have employment at Creekside for an
indefinite period of time, or whether she stands to lose her employment because
she is unable to perform the regular job requirements.

[79]        
Mrs. Cutz was not challenged in cross-examination about Mrs.
Guitierrez’s work performance or her observations of Mrs. Guitierrez’s
ability or inability to fully perform the normal requirements of her job.

[80]        
Mrs. Guitierrez was asked what kind of job she could do, if she lost her
job at Creekside. She answered that she did not know.

The Medical evidence

Dr. Paula L. Iriarte

[81]        
Dr. Iriarte practises family medicine and speaks Spanish. She attended
university and graduated from medical school in Buenos Aires in 1995. She has
practiced family medicine in British Columbia since 2005. She has been treating
Mrs. Guitierrez since 2006.

[82]        
Dr. Iriarte prepared a report dated September 6, 2013 and an addendum
report dated October 30, 2014. Mrs. Guitierrez attended the offices of Dr.
Iriarte on a very frequent basis following the accident, and I think it is
necessary to review the dates and some of the assessments because they relate
to Dr. Dommisse’s opinion on her ability to work.

[83]        
Mrs. Guitierrez attended Dr. Iriarte’s office on December 8, 2010, the
day following the accident. She was seen by Dr. Iriarte’s colleague Dr. Nasreen
Ismaily. The clinical records disclose that Mrs. Guitierrez was tearful and
crying and explained to Dr. Ismaily that the van stopped immediately after
striking her on the right hip and she fell onto her left side and hit her left
hip, left shoulder and left knee. She had three abrasions on her left knee and
limited range of motion in her neck, left shoulder and arm. She was diagnosed
with moderate whiplash with acute stressors. Dr. Ismaily recommended
physiotherapy, massage therapy, Naproxen, and rest.

[84]        
Mrs. Guitierrez saw Dr. Iriarte on December 14, 2010. She complained of
neck, left arm, and low back pain since the accident. She also complained of
left knee pain, numbness in her left arm and left hand which radiated into her
left digits. The range of motion of her left shoulder revealed abduction (she
could not lift her arm sideways) and internal rotation (she could not put her
arm behind her back and touch her scapula) were restricted due to pain.

[85]        
Mrs. Guitierrez was next seen by Dr. Iriarte or Dr. Ismaily on January
7, 14, 20, February 2, and February 22, 2011. On February 22 she reported that
she could move her left shoulder better, although she did not have full
functioning. She had been feeling numbness in her left arm. The pain in her
lower back and left buttock was a little better, but she noticed pain going
down her left leg when she walked. She had limited movement of her left knee
and problems straightening her leg out. She had problems sleeping, experienced
flashbacks and nightmares about the accident, and being on the road, loud
noises, and travelling by car, aggravated her anxiety. Trazodone (50 mg) was
recommended to help her sleep, and an anti-inflammatory medication Celebrex,
for her low back pain. Dr. Iriarte diagnosed Mrs. Guitierrez as suffering
from post-traumatic stress disorder.

[86]        
Mrs. Guitierrez was next seen on March 17, 24, 30, April 14, May 5, May
26, June 3, June 30, June 30, July 27, August 4, and 25, 2011. Throughout those
visits, she complained of knee pain, especially when standing, left arm pain,
and low back pain. She also complained of neck and left shoulder pain radiating
into her fingers and weakness in her hands. On August 25, 2011 Dr. Iriarte
assessed her as suffering from post-traumatic stress disorder and recommended
psychotherapy with a Spanish speaking counsellor Dr. Ferrada.

[87]        
Mrs. Guitierrez was next seen on September 10, 28, and October 17, 2011.
On October 17, 2011 she stated that she was anxious and pressured the way the
kinesiologist was relating to her. The kinesiologist was seeing her at home
twice a week, and she was seeing Dr. Ferrada once a week. She was also seeing
the occupational therapist and Dr. Underwood. Dr. Iriarte diagnosed Mrs.
Guitierrez as suffering from significant anxiety or generalized anxiety
disorder. She was counselled on stress management, and prescribed Paroxetine
for her anxiety.

[88]        
Mrs. Guitierrez saw Dr. Iriarte on October 25, November 14, and December 15,
2011. During all of her visits in 2011 her complaints were for symptoms related
to the accident. By the end of 2011 she was still having difficulty sleeping,
she was still fearful of walking on main streets, and she still had complaints
of pain relating to her left side.

[89]        
In 2012 Dr. Iriarte saw Mrs. Guitierrez on January 27, and on February 9
when she complained of left knee pain, left shoulder and arm pain, left wrist
and left thumb pain. She was seen on April 5, May 2, and May 9, 2012 and was
diagnosed as suffering from major depression with anxiety and post-traumatic
stress disorder. She was seen on May 31, June 9, 21, July 5, 17, August 1, 15,
and 27 when Dr. Iriarte diagnosed her as suffering from chronic pain,
major depression, and generalized anxiety disorder.

[90]        
She was seen on September 12, 26, October 10, 24, November 20, 27,
December 7, 2012. On November 20, Dr. Iriarte gave her a note indicating that
she could return to work. When she saw her on November 27, she was continuing
to have anxiety and was attending counselling. On December 7 she reported that
she was having neck and low back pain from standing at work for four hours. She
had left thumb pain from using her thumb at work. She also reported taking 15
minute breaks after working 2 hours. She told Dr. Iriarte that Dr. Underwood
had recommended that she use a heating pad during her breaks, and that she wear
special orthotics. When she was seen on January 22, 2013 she reported that she
felt happier, her depression was improving (likely from the medication), she
was still scared crossing busy streets, her neck, left shoulder and left arm
pain still bothered her at work, but she was coping.

[91]        
Throughout the rest of 2013, Mrs. Guitierrez saw Dr. Iriarte at least
once a month until she wrote her report of September 6, 2013. When she last saw
Mrs. Guitierrez on August 28, 2013, she had ongoing left sided neck pain
that radiated into her left arm and left wrist, low back pain from work, and
her left knee pain was aggravated when using the stairs.

[92]        
On January 24, 2014 Mrs. Guitierrez had a CT scan performed on her
lumbar spine. In her report dated October 30, 2014, Dr. Iriarte states:

Based on the review of Mrs. Guitierrez medical chart and her
Lumbar spine CT report listed herein, my previous opinion remains unchanged.
However, it is now also my view that Mrs. Guitierrez is also suffering from
lower spine spondylosis.

Spondylosis is a chronic and degenerative condition that can
be caused or aggravated by trauma.

Prior to the accident, Mrs. Guitierrez had never consistently
[complained] of low back pain. Since the accident Mrs. Guitierrez has presented
with ongoing intermittent neck, left shoulder pain, left hand, low back pain
and left knee pain.

Mrs. Guitierrez’s function remains partially impaired and she
continues to work modified duties as a result of her injuries. She continues to
suffer from low back pain which aggravates by the end of the day after standing
all day at work.

I do not expect the need for any surgical treatment in the
future and I would advocate for Mrs. Guitierrez to maintain an active approach
to her injuries with exercises consisting of stretching, strengthening and low
impact cardiovascular such as swimming in order to improve her core muscle
strength and to avoid deconditioning.

I would also recommend that she
continues to follow up with her Physiatrist, Dr. Heather Underwood for opinion
regarding further management options and long term prognosis [regarding her]
injuries.

[93]        
Dr. Iriarte testified that Mrs. Guitierrez’s symptoms are now chronic. She
did not work for two years because of pain and the “emotional component”. The
CT scan shows mild spondylosis which could be caused by the accident, but there
is no way of knowing because there was no imaging before the accident.

Dr. Heather Underwood

[94]        
Dr. Heather Underwood is a physiatrist specializing in physical medicine
and rehabilitation. She saw Mrs. Guitierrez a total of 14 times between June
29, 2011 and April 22, 2014, and prepared an expert report dated August 21,
2014. She saw Mrs. Guitierrez three times in 2011, four times in 2012, three
times in 2013, twice in 2014 before she wrote her report. After writing her
report, she also saw Mrs. Guitierrez in October 2014.

[95]        
Dr. Underwood opines that Mrs. Guitierrez suffered soft tissue injuries
of her neck and periscapular region from the December 7, 2010 accident.
Kyphotic posturing, that is, the rounding or slouching of her shoulders exacerbated
her symptoms. Her resulting low mood and anxiety likely prolonged her symptoms which
are further exacerbated by her work.

[96]        
Dr. Underwood also opines on the following injuries, which she says were
caused by the accident:

1.     left thumb pain – Mrs.
Guitierrez had no difficulties with her left hand or wrist pain before the
accident when she is reported to have fallen on her left hand. Since the
accident she has complained of discomfort in her left hand. During assessments
she has consistently reported pain in her left thumb. A thumb splint was
prescribed on December 1, 2011 and she reported improved symptoms. She could
not wear the splint when she returned to work in November 2012 because she
needs to use her hands to wrap sandwiches. Her thumb and hand symptoms worsened
when she worked in the cold room at work. Dr. Underwood states:

In my opinion [Mrs. Guitierrez] has received a soft tissue
injury involving the tendinous structures leading to de Quervain’s
tenosynovitis. De Quervain’s tenosynovitis involves a tenosynovitis of the
sheath or tunnel surrounding the two tendons abductor (pollicis longus and
extensor pollicis brevis) that control the thumb. Unfortunately Mrs. Guitierrez[’s]
occupation involves repetitive movements of the hand and exposure to cold,
which is likely further leading to continuation of her symptoms. She is
continuing to utilize her thumb spica splint with some benefit.

2.     low back pain – Mrs.
Guitierrez had no significant difficulties with low back pain before the
accident. She has reported low back pain since her initial assessment on June
29, 2011. She has myofascial pain involving the lumbar spine and buttocks as a
result of the accident. Her work, which requires her standing for prolonged
periods, exacerbates her low back pain.

3.     left knee pain – Mrs.
Guitierrez had no ongoing difficulties with her left knee before the accident.
Since the accident she has increasing discomfort with her left knee when
walking, particularly walking up stairs or kneeling at church. The patellar
grind test was positive. The testing and symptoms are in keeping with
patellofemoral syndrome: the patellar or kneecap is not tracking properly, so
it is painful for her to walk upstairs, do squats, lunges, or lean on the
kneecap.

4.     mood – Dr. Underwood states:

In my opinion her mood and anxiety did significantly impact
her musculoskeletal injuries in that she was quite fearful of reinjuring
herself. Her ability to attend therapies in an independent manner was reduced
due to her fearfulness of being in the community alone, either walking or on
public transportation. She also had the added complexity of having English as a
second language and some translation was required for understanding her
injuries. More ideally, all of her therapeutic interventions would have been
received in Spanish in order to optimize her understanding of the rehabilitative
process.

[97]        
Dr. Underwood’s prognosis for Mrs. Guitierrez is detailed:

PROGNOSIS

In my opinion, Ms. Guitierrez continued to have chronic
musculoskeletal pain. Although she has made gains when provided with a very
supportive environment and performing a regular exercise routine, she continues
to report pain in the same regions as she did during our initial assessment
(June 29, 201 I). She is having some relief with the use of a thumb spica
splint at the end of her work day, a patellar brace to assist with patellar
tracking as well as a soft lumbar support. She recognizes that these should
only be utilized on an intermittent basis. She continues to require a regular
heating and stretching regimen and use of such devices as exercise balls,
exercise rolls and attendance of a water-based exercise program.

Work – At my most recent assessment (April 22, 2014)
Ms. Gutierrez was working seven hours, four days per week in her occupation at
Creekside Custom Foods. Unfortunately this occupation requires prolonged standing
as per the occupational therapy report on workplace assessment. She is required
to work in a cold environment which she finds exacerbates her hand pain.
Intermittent overhead activities also exacerbates her neck, periscapular and
shoulder pain. She does report that her colleagues are assisting her with
particularly aggravating activities.

In my opinion it is unlikely that she will successfully
return to full-time duties five days per week. I would recommend that she have
a day off mid work week in order to have some relief of her symptoms. She is at
risk for intermittent flares of her pain, which may lead to lost work
(approximately once per year).

Counseling – She will continue to require monitoring
by her family physician with regards to her mood. She continued to be on
medications for mood and pain at the time of my most recent assessment. Pain
and mood affect each other and flares of pain will increase her risk of
decreased mood. Access to counseling for mood is recommended if she has a flare
of pain particularly if she is absent from work. Ideally a counselor would be
Spanish-speaking. I will leave full comment with regards to the frequency which
this will be required to experts in psychology or psychiatry.

Orthotics – Ms. Guitierrez has had some pain relief
with the use of orthotic devices and new shoe wear. Orthotics will be expected
to require replacing every two to three years. Shoe wear should be replaced at
least every 6 months. A patellar tracking brace has assisted with Ms. Guitierrez
knee pain. Replacement of her brace will depend on the frequency which she
wears the device.

Housekeeping/Home maintenance
– Ms. Guitierrez would likely require some assistance with heavier housekeeping
activities (e.g. spring cleaning) and household maintenance. It is my
understanding her husband is assisting her at this time.

[98]        
Dr. Underwood goes on to state that Mrs. Guitierrez does better overall
when a physician follows up with her on a regular basis, and that Mrs.
Guitierrez’s left thumb has de Quervain’s chronic tenosynovitis. Due to her
chronic symptoms, a trial of prolotherapy may improve or exacerbate her
symptoms. Dr. Underwood also recommends that Mrs. Guitierrez try to obtain and
use heated gloves at work.

[99]        
On October 8, 2013, Dr. Underwood wrote a letter to Mrs. Guitierrez’s
employer stating that her only recommendation for modified duties were that
Mrs. Guitierrez avoid reaching above shoulder level at work as she will be
at risk for reinjuring her shoulder.

[100]     In
cross-examination the defendant suggested to Dr. Underwood that in arriving at
her opinion, she relied on Mrs. Guitierrez’s history, particularly her
subjective complaints of anxiety, pain, and discomfort. In answer, Dr.
Underwood replied: “I’m not taking health care for a ride and not treating
things that aren’t there.”

[101]     In
cross-examination the defendant also suggested to Dr. Underwood that the only
things affecting Mrs. Guitierrez’s ability to work were (a) her symptoms of
physical discomfort which have been prolonged because of her mood symptoms; and
(b) her inability to life overhead. In response, Dr. Underwood indicated that
Mrs. Guitierrez’s work environment negatively affects her discomfort and
ability to work. Mrs. Guitierrez works in a cold environment and she has
muscular pain. Muscles are like elastic bands: if it is cold and you stretch
them, they snap; if it is warm, they adapt. Muscles stretch better in warm
temperatures. Muscles can do more if they work in a warm environment rather than
in a cold environment like the cold room. Another factor that negatively affects
the pain symptoms in Mrs. Guitierrez’s hand and thumb is the repetitive
nature of her work on the food assembly line. Her job requirement of constant
standing on a concrete floor also increases her back pain. Mrs. Guitierrez’s
pain symptoms would be different – and not as bad – if she worked by sitting in
a nice comfortable chair in a nice warm environment.

[102]     Although Dr.
Underwood testified that Mrs. Guitierrez is still reporting some improvement
some three and a half years after the accident, and the hope is for continued
improvement as her mood improves, she never moved from her opinion that it is
unlikely that Mrs. Guitierrez will successfully return to full-time employment
of five days a week.

Dr. William J. Koch

[103]     Dr.
William J. Koch has been a registered psychologist since 1982. He is also a
clinical full professor in the Department of Psychiatry, Faculty of Medicine,
and Adjunct Professor in the Department of Psychology at the University of
British Columbia. His resume is impressive.

[104]     Dr. Koch assessed
Mrs. Guitierrez on July 3, 2014 and prepared a detailed 34-page (excluding his
curriculum vitae) expert report dated July 25, 2014. The report was served by
defence counsel on plaintiff’s counsel 83 days before trial. Plaintiff’s
counsel requested that Dr. Koch be produced at trial for cross-examination.
Just before trial, defence counsel indicated that he no longer intended to rely
on Dr. Koch’s report because it would add nothing to Dr. Iriarte’s report that
Mrs. Guitierrez suffers from post-traumatic stress disorder, stress, and
anxiety. I nevertheless concluded that counsel for Mrs. Guitierrez was allowed
to cross-examine Dr. Koch on his report.

[105]      In
preparation for his report, Dr. Koch reviewed extensive clinical records of
various treating family physicians and specialists, mental health records of
the treating psychologist, MSP and PharmaNet records, hospital records, and the
BC Ambulance Service Report dated December 7, 2010 relating to the accident. On
July 3, 2014, with the assistance of a Spanish interpreter, he interviewed
Mrs. Guitierrez for four and a half hours, including 30 minutes of
“behavioural observation” when he, Mrs. Guitierrez, and the interpreter went
for a walk around his North Vancouver office. Because she is not sufficiently
fluent in English, Mrs. Guitierrez did not complete any psychological
tests, but Dr. Koch conducted a “semi-structured diagnostic interview”.

[106]     Dr. Koch’s
opinion is that Mrs. Guitierrez suffers from four separate mental health
conditions:

1.    post-traumatic stress disorder (PTSD);

2.    generalized anxiety disorder (GAD);

3.    persistent depressive disorder (PDD); and

4.    somatic symptoms disorder, primarily pain (SDD).

[107]     Mrs.
Guitierrez’s PTSD – including her fear of walking on the street, or what Dr.
Koch refers to as her restrictions on mobility – probably arose from the motor
vehicle accident. Her GAD likely predated the accident, but has not been
significantly influenced by the accident, except for increased financial
pressures from not working and the impact of the teachers’ strike on Mr.
Guitierrez’s ability to work at the Vancouver School Board. Her PDD was
temporarily aggravated by her soft tissue injuries and the restrictions on her
mobility from her PTSD. Her SSD likely pre-dated the accident, but her injuries
from the accident led to a broader range of pain related somatic complaints. Other
factors that may contribute to Mrs. Guitierrez’s diffuse psychological
distress include a miscarriage in early 2010, possible exposure to civil war
violence in Guatemala, and more importantly, being a non-English speaking immigrant.

[108]     Relating
to his diagnosis of PTSD, Dr. Koch states:

Diagnostic Interview

In an open-ended question about her main concern at this
time, Ms. Guitierrez responded “fear of walking in the street”, especially
those streets that are very busy with traffic. Lots of traffic noise results in
her “getting anxious and fearful.” She reported that she still has episodes of
being fearful on the street and was previously housebound from this fear.

She reported currently suffering upsetting dreams of “being
hit” by a car and will wake up distressed and take up to 1 hour to return to
sleep. Her bad dreams sometimes wake her husband. By her report, these dreams
were occurring almost nightly for some time following the subject MVA in 2010
and decreased in frequency near the end of 2013. Five to 6 times a week, when
at home, she [suffers] flashbacks of a car coming toward her. These last about
10 minutes. These flashbacks were more frequent through the end of 2013 and
have decreased in frequency since that time. She attributes her improvement in
this regard to a group therapy she attended in 2013. She reported daily
episodes of distress when crossing intersections or if near heavy car traffic.
She reportedly “feels insecure – feels like not safe.” In the past through
approximately 2012, this was more disabling with her frequently refusing to
leave the house because of this fear. When exposed to car traffic in this
fashion she reports trembling and feeling her heart race.

She reported attempting to distract herself from MVA memories
by listening to music, changing conversational topics, and distracting herself
from such thoughts. She reports being avoidant of leaving the family home by
herself (will have her husband or children with her), avoids some cross-walks,
and in particular avoids the cross-walk where the accident happened.

Although she endorsed reduced recreational interests
(shopping, hosting dinner parties), she attributed this to her fear so that she
“cannot shop by myself”, and to her physical limitations. She reported some
reduction of emotional response – “takes effort to laugh, somewhat withdrawn in
her marital relationship). Bearing in mind that this interview was conducted
through an interpreter and so may under-represent Ms. Guitierrez’s emotional
difficulties.

She is easily startled and reported startling to “shouting in
the streets”, to bells and doors closing at work, and to “squealing brakes.” It
takes about 5 minutes to calm herself after startling. She further reported
significant concentration problems noting that she “cannot read any longer”,
but indicated that this does not pose a problem in her work. She dated her
concentration problems to the subject MVA.

My estimate of her worst PTSD symptoms extending into 2012
and 2013 was a score of 69, which is a very high score and consistent of a
DSM-VI diagnosis of PTSD. It suggests some minor improvement over time.

Because of Ms. Guitierrez’s
complaints of fear of pedestrian travel, I obtained her consent to walk by and
across some local streets in the Lower Lonsdale neighbourhood of North
Vancouver. This is an urban area with both low and high traffic areas and
traffic light controlled intersections as well as uncontrolled intersections.
During these 20 to 30 minutes of walking, Ms. Guitierrez typically lagged
behind the interpreter and me, which she explained as secondary to her back
pain. As well, she was frequently hesitant to enter a crosswalk and when I
stopped briefly in the middle of a cross-walk crossing Esplanade (a moderately
busy street), she exclaimed (in Spanish) and then sped up to clear the
intersection. When I asked her to walk on the curb adjacent to car traffic
passing on Esplanade, she could not bring herself to do this. Overall, these
observational data are consistent with an individual with a significant fear of
walking near motor vehicle traffic.

[109]     Dr. Koch
explained what he meant by the word “secondary”:  Mrs. Guitierrez walked a
short distance behind him and the interpreter. When he asked her why, she said
that her back was hurting. However, he was of the impression that was not the
sole reason for her lagging behind. He was of the view that she was hesitant because
she wanted him and the interpreter to walk ahead of her and act as human
shields.

[110]     Dr. Koch
testified that the average person who has psychological therapy has around a 70
to 80 percent chance of remarkably reduced symptoms, but only 70 to 80 percent
of patients recover. Mrs. Guitierrez is less than an optimal candidate for
treatment because “she has a lot of strikes against her”: she suffers from
other mental health conditions, she has a number of physical health complaints,
she is less educated than the average person, she is living in a different
culture than what she was raised in, and she has English language difficulties.

[111]     Dr. Koch
considered the following prognostic signs in his prognosis for her recovery:

1.    The positive signs include:

(a)   she has a supportive husband;

(b)   she has partially benefited from
very competent psychological treatment by Dr. Ferrada;

(c)    she has nearly full-time employment; and

(d)   she
does not use undue or excessive amounts of analgesics or sedatives.

2.   The negative signs include:

(a)  she has very limited social
support despite having lived in Canada for 18 years; her lack of fluent English
likely contributes to her low social support;

(b)  her problems with anxiety and
somatic complaints are very long standing and therefore harder to treat; and

(c)  her
limited formal education may adversely affect her ability to benefit from
psychological treatment or education interventions.

[112]     Dr. Koch
concluded that her overall prognosis for improving is guarded if she does not
continue to receive psychological counselling, and that her prognosis for
recovering from PTSD is more positive if she continues to receive psychological
treatment from Dr. Ferrada. He recommends sending Mrs. Guitierrez back to
Dr. Ferrada for 20 more sessions of cognitive behavioural therapy for PTSD
and hopefully benefit from reduced anxiety and fear, and increased mobility.

Dr. Ian G. Dommisse

[113]     Dr.
Dommisse is an orthopaedic surgeon who was asked by ICBC in March 2012 to
examine Mrs. Guitierrez, review a number of documents, and answer a number of
specific questions. The records he reviewed were provided to him by the ICBC
adjuster and were limited to physicians’ clinical records ending in 2011, and VGH
Emergency records and ambulance crew report relating to the accident.

[114]    
In his report dated March 22, 2012 to ICBC, Dr. Dommisse states:

Examination of her left wrist and hand reveals mild puffiness
of her left thumb extensor tendons. She also had increased pain with active
left thumb extension.

Examination of her left knee
reveals no effusion. There is no jointline tenderness nor any ligament laxity.
She has a minimal patellofemoral click with knee extension movements. There is
no pain with this click.

[115]     With respect
to his examination of Mrs. Guitierrez’s left knee, Dr. Dommisse testified that
when he examined her knee, he extended her knee and applied resistance to her
knees to determine whether doing so elicited pain. In his report, he states
that there was “no pain” on knee extension movements. However, Mrs. Guitierrez
testified that when Mr. Dommisse examined her “…he was twisting my knee” and it
caused her pain. After his examination of her knee, “…I can’t walk because I
have a lot of pain”.

[116]    
Under the heading Opinion, Dr. Dommisse answers the following questions:

OPINION:

In answer to your specific questions:

a) Whether
the insured has suffered an injury and, if so, whether the insured’s injury was
caused by this motor vehicle accident.

Ms. Guitierrez sustained a Grade II
strain of her cervical and thoracolumbar spine as a result of the Accident. She
also sustained an abrasion/contusion to her left knee. Ms. Guitierrez also
sustained a soft tissue injury to her left shoulder as a result of the
Accident.

Ms. Guitierrez has clinical
evidence of left thumb extensor tendonitis. I am uncertain as to whether this
tendonitis is related to the Accident.

f) The
reasonable duration of total disability given the patient’s injury and job
duties.

I would have anticipated that Ms.
Guitierrez would have been off work for four months following her injury.

h) Recommendations
you may have with respect to current treatment and the need for any future
treatment.

In my opinion, Ms. Guitierrez
should discontinue the use of her left knee brace as soon as possible. I would
anticipate that her left wrist brace could probably be discontinued with 1-2
months from the present time.

Ms. Guitierrez should maintain her own active, independent
exercise program in order to preserve flexibility of her cervical and
thoracolumbar spine as well as to preserve strength of her cervical, shoulder
and upper extremities. Strengthening of her core, trunk and abdominal muscles
as well as lower extremity strengthening on an independent basis would be appropriate.
It would be appropriate for Ms. Guitierrez to have heat, ultrasound and
mobilization for her left wrist and thumb in particular.

[117]     Dr.
Dommisse also testified that he was not certain that Mrs. Guitierrez’s left
thumb extensor tendonitis was related to the accident. However, the evidence
establishes that Mrs. Guitierrez had no left thumb complaints until immediately
following the accident. In his report Dr. Dommisse lists the documents that he
reviewed, including the Ambulance Crew Report. According to the report of Dr. Koch,
the BC Ambulance Service report of December 7, 2010 indicates that after the
accident, Mrs. Guitierrez complained of pain in her left knee, left wrist and left
thumb.

[118]     Dr.
Dommisse’s opinion is limited by the fact that he saw Mrs. Guitierrez only once,
he conducted his assessment through an interpreter, and it does not consider
her mental health at the time of the accident or any psychological injuries she
suffered as a result of the accident, and their impact on her physical
injuries.

[119]     I disagree
with Dr. Dommisse’s opinion that Mrs. Guitierrez could have returned to work
within four months of the accident, that is, by April 7, 2011. His opinion does
not accord with Mrs. Guitierrez’s complaints of pain, does not accord with Dr.
Iriarte’s clinical findings on April 14, 2011 that Mrs. Guitierrez was
suffering symptoms of soft tissue injuries in her neck, back, and left knee,
and does not accord with Dr. Iriarte’s assessment in the spring of 2011 that
Mrs. Guitierrez was not fit to return to work.

[120]     Similarly,
the ICBC’s decision that Mrs. Guitierrez had to return to work by May 2012 does
not accord with Dr. Underwood’s assessment or with Dr. Iriarte’s assessment in
May 2012 that she continued to suffer not only from physical complaints, but from
major depression with anxiety, and post-traumatic stress disorder as a result
of the accident.

[121]     I prefer
the evidence and opinions of Drs. Iriarte and Underwood to the opinion of Dr.
Dommisse and give his opinion little weight.

Assessment of Damages

[122]     Mrs.
Guitierrez seeks the following damages:

[123]    
The defendant contends that the court should only award Mrs. Guitierrez
the following damages:

General Damages

[124]     An award
of for general or non-pecuniary damages is to compensate Mrs. Guitierrez
for her pain, suffering, loss of enjoyment of life and the amenities of life. The
factors (some overlapping) that the court should consider when assessing
general damages are outlined in Stapley v. Hejslet, 2006 BCCA 34 at
para. 46:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering;

(f) loss or impairment of life;

(g) impairment of family, marital, and social
relationships;

(h) impairment of physical or mental abilities;

(i) loss of lifestyle; and the plaintiff’s stoicism.

[125]     Mrs.
Guitierrez refers to the following case authorities where the award for general
or non-peculiar damages ranges from $50,000 to $100,000:

Lourenco v. Pham, 2013 BCSC 2090: the plaintiff was a
pedestrian crossing the street when she was hit on the left side by the
defendant’s vehicle while she was in the intersection. Her major injuries were
headaches, neck pain and back pain from the shoulders to her upper and mid
back, as well as post-traumatic stress symptoms. Despite physiotherapy and
active rehabilitation, she continues to experience pain in her neck and upper
back almost 3.5 years since the accident. Award: $50,000.

Atwater v. Reese, 2009 BCSC 370: the plaintiff was
walking when she was struck by the defendant’s vehicle. She suffered a soft
tissue injury for the next two years that caused pain in her left hip and thigh
and would occasionally radiate into her left foot and lower back. She also
suffered from interrupted sleep. Her work activities as a waitress aggravated
her discomfort. She was unable to perform her pre-accident levels of activity.
Award: $50,000.

Bulatovic v. Siebert, 2013 BCSC 240: the plaintiff was
a pedestrian crossing the street on a rainy afternoon when she was hit on the
right side by the defendant’s vehicle and knocked to the ground. She had pain
in her right arm and shoulder one week after the accident which affected her
work. Plaintiff tried several treatments such as massage therapy and
physiotherapy. At the time of trial, she continued to suffer problems with her
right hand, numbness and sometimes pain into the shoulder and arm, as well as
headaches and sleep disturbance. Award: $65,000.

Clark v. Kouba, 2012 BCSC 1607: the 49 year old
plaintiff suffered injuries to her neck and upper back that persisted from the
date of the accident up to trial. Her symptoms prevented her from completing
her homemaking tasks, and had a negative effect on her personal relationships,
especially with her children and husband. Award: $85,000.

Paller v. Regan, 2013 BCSC 1672: the 49 year old
plaintiff suffered from chronic neck and back pain, and headaches which
persisted from the time of the accident up to the trial. His injuries and
chronic pain affected his relationships and made him irritable. There was a
finding that the injuries to his neck and back were unlikely to improve and
might possibly worsen. Award: $85,000.

Szymanski v. Morin, 2010 BCSC 1: the 55 year old
plaintiff suffered from chronic neck pain that radiated to his upper left
trapezius muscle. The prognosis was guarded for complete resolution. Award: $75,000.

Kilian v. Valentin, 2012 BCSC 1434: the 28 year old
plaintiff experienced pain to her neck, shoulders, and headaches caused by her
neck pain. Her symptoms were most acute in the first six months and remained
acute for 16 months. She received chiropractic treatments, massage therapy, and
acupuncture to treat her injuries. There was a finding that the plaintiff would
continue to improve but it was not predicted to be symptom free. Award: $75,000.

Charlebois v. Vandas, 2004 BCCA 356: a jury verdict of
$110,000 was upheld. The Court of Appeal described it as on the high side, and
inferred that the jury must have found that three years after the accident the
plaintiff suffered chronic pain in the neck, shoulder blades and lower back,
tinnitus, vertigo and occasional nausea, affecting the plaintiff’s quality of
life.

Whyte v. Morin, 2007 BCSC 1329: the plaintiff was 40 years
old at the time of the accident in April 2004. She had two children. She
suffered wrist and lower back injuries from a previous motor vehicle accident.
She had recovered and was in good health at the time of the subject accident.
She suffered neck and upper back injury. She returned to work as a legal
secretary, but eventually had to take a month off work. She had not taken
significant time off work. She has continued work through the pain to bring in
an income to her family. The Court found that she will make a substantial
recovery within a few years. Award: $80,000.

Suedat v. Kara, 2014 BCSC 1837:  the 42 year old
plaintiff was struck and injured in a crosswalk. Her life before the accident
was replete with challenges, including psychological conditions, making her
vulnerable and eccentric. She was also the primary caregiver for her youngest
child who required 24 hour a day care; but she worked. The accident caused her post-traumatic
stress disorder, inability to focus or concentrate, pain in her right ankle,
pelvis and uterus, the left side of her body, back and neck. Award: $ 50,000.

[126]     The
defendant relies on the following authorities where the award of general or
non-pecuniary damages ranges between $25,000 and $31,000:

Currie v. McKinnon, 2012
BCSC 698: the plaintiff was rear-ended and sustained mild to moderate soft tissue
injuries to his neck and upper and mid back. He took three weeks to a month off
work then moved to a more sedentary job. He had substantially recovered within
a year with occasional neck and back pain to the date of trial, 5 years
post-accident. Award: $22,000.

Hussain v. Cho, 2012 BCSC
194: the plaintiff, a passenger in a motor vehicle accident, sustained multiple
soft tissue injuries and was off work for 1.5 months. She made some recovery
within one year but continued to suffer some pain and headaches for about 2½ years
before she suffered a serious injury in a slip and fall. Award: $25,000.

Boutin v. MacPherson, 2012
BCSC 1814: the plaintiff was rear-ended, suffered multiple mild to moderate
soft tissue injuries, largely recovered within six months and had some mild
intermittent ongoing symptoms. Award: $25,000.

Olianka v. Spagnol, 2011
BCSC 1013: the plaintiff sustained a moderate soft tissue injury to the neck
and mid-back and mild soft tissue injury to the lower back. He was off work for
four months. He experienced significant recovery by two and a half years after
the accident and continued with intermittent pain to the date of trial, with pain
expected to last for some unknown period. Award: $30,000.

[127]     Every case
of course depends on its own unique set of facts, and the defendant relies on
cases where the plaintiffs’ injuries and consequences of the accident were not
as serious as those sustained by Mrs. Guitierrez.

[128]     Mrs.
Guitierrez may have suffered from generalized anxiety and a persistent
depressive disorder before the accident, but she was able to function well at
home, at work, and socially. As a result of the accident she now suffers from
significant post-traumatic stress disorder and chronic pain which is
exacerbated by her work. Post-traumatic stress disorder, along with her
pre-existing psychological problems, her lack of fluent English, lack of social
support, and limited education have made the recovery from her physical
injuries much more difficult than they would in someone else, but the defendant
must take his victim as he finds her. He cannot argue that Mrs. Guitierrez
should recover or ought to have recovered like most other persons. She is, as
Dr. Koch states, less than an optimal candidate for full recovery.

[129]    
In Suedat v. Kara, the plaintiff was vulnerable and had a number
of long standing emotional health issues when she was struck in a crosswalk by
a vehicle. The accident triggered post-traumatic stress disorder. Mr. Justice
G.P. Weatherill stated at paras. 61-63 and 81-82:

[61] Due to her psychological make-up, the plaintiff was
a vulnerable individual who was extremely susceptible to decompensation after a
traumatic event such as the Accident. I find that the Accident has exacerbated
the plaintiff’s pre-Accident psychological condition. But for the Accident the
plaintiff would not likely have suffered the psychological disorders diagnosed
by Dr. Patel.

[62] She has met the onus of establishing that the
Accident triggered her psychological disorder: Yoshikawa v. Yu (1996),
21 B.C.L.R. (3d) 318 (C.A.); Andrews v. Mainster, 2014 BCSC 541.

[63] The plaintiff was described by Dr. Eichhorst as
eccentric. I agree that is an appropriate characterization of her presentation.
However, she is who she is and the fact that she has reacted to the events of
December 7, 2010 in a manner that many would consider unusual does not,
necessarily, make her claim illegitimate. If her symptoms are genuinely felt
and she is not consciously exaggerating or feigning — and I find that to be the
case — she is entitled to compensation for the losses she has suffered.

[81] The effect the Accident has had must be measured on
how it has affected her, and not how it may have affected the average
individual. The defendant is not entitled have a perfect plaintiff.

[82] Although by many standards
the Accident would be considered relatively minor, I find that the Accident has
had a significant impact on the plaintiff and will continue to have an impact
on her until her mental health issues have been addressed. Given the
long-standing pre-Accident history of mental health issues, I find that she
would have had issues with her mental health continuing into the future in any
event of the Accident. The Accident exacerbated her mental health condition and
has made her less functional than she would otherwise have been. Taking these
factors into account, I assess her damages under this head at $50,000.

[130]     Considering
all of the evidence and the authorities, I consider an award of $75,000 in general
damages for Mrs. Guitierrez to be appropriate.

Past Wage Loss

[131]     Mrs.
Guitierrez claims wage loss from the time of the accident on December 7,
2010 to her return to work on November 21, 2012. Her hourly rate was $13.68 an
hour until December 29, when it increased to $13.71, and to $13.76 an hour on
January 12, 2013. Based on a four year average, she also claims $2,500 annually
for overtime.

[132]     Her claim
for past wage loss is $88,364.76, before tax.

[133]     The
defendant argues that Mrs. Guitierrez’s wage loss claim should be limited to
four months on the basis that she ought to have returned to work within four
months of the accident. In maintaining that position, the defendant relies on
the report of Dr. Dommisse, the clinical records of Dr. Iriarte which have
repeated references to “intermittent” symptoms, and argues that Mrs. Guitierrez
is generally not a credible witness and exaggerates her complaints of anxiety
when crossing streets. The defendant also argues that the calculations for her
claim are based on a 40-hour a week work week, which is contrary to Mrs.
Guitierrez’s evidence that she worked 7.5 hours a day.

[134]     However,
Mrs. Guitierrez testified that she was paid 30 minute break, which means that
she was paid for eight hours a day.

[135]     I find
Mrs. Guitierrez to be an honest and truthful witness, and that she reasonably
could not have returned to work earlier than November 21, 2012. I therefore
award her past wage loss in the amount of $80,500 net of taxes, subject to
taxes (Jurczak v. Mauro, 2013 BCCA 507 at para. 8).

Future Wage Loss

[136]     Mrs.
Guitierrez advances a claim for future wage loss of $137,000.

[137]     The law
relating to future wage loss or loss of future earning capacity is well known: Perren
v. Lalari, 2010 BCCA 140, Jurczak v. Mauro, 2013 BCCA 507 at paras.
34 to 37, and Meghji v British Columbia (Ministry of Transportation and
Highways), 2014 BCCA 105.

[138]    
Mrs. Guitierrez bases her claim for future wage loss on a mathematical
approach using the multipliers provided by Christiane Clark of Associated
Economic Consultants Ltd. Ms. Clark prepared a report providing actuarial
income multipliers adjusted for survival, but not for other positive or
negative contingencies of life and the labour market. The survival-adjusted
present values of future income from the date of trial to Mrs. Guitierrez’s
65th, 66th, or 67th birthday is calculated at the following rates:

Trial Date to Age 65:           $18,123 per $1,000 of annual
earnings;

Trial Date to Age 67:           $19,452 per $1,000 of annual
earnings;

Trial Date to Age 70:           $21,334
per $1,000 of annual earnings.

[139]     Ms.
Clark’s report also included the approximate value of non-wage benefits,
including Canada Pension Plan, Workers’ Compensation Board, and Employment
Insurance premiums. On average, employers in the Province spend about 10.3
percent of gross payroll on non-taxable non-wage benefits.

[140]     Mrs.
Guitierrez claims for loss of fringe benefits. The defendant argues that she is
not entitled to anything for loss of fringe benefits because she has proved no
loss. As I understand the defendant’s argument, it is that Mrs. Guitierrez
could have proved her loss if she had paid for dental expenses to the extent
those expenses would have otherwise been covered by her group benefits dental
plan. But she incurred no expenses.

[141]     In my
view, Mrs. Guitierrez has suffered a loss as a result of the loss of her group
benefits. Just using the dental plan as an example: without the dental plan,
she and the eligible members of her family cannot afford to see the dentist, or
pay for the dentist, or in the case of her son, she and her husband are unable
to afford the maximum $2,000 orthodontic fees, which would be covered by the
plan.

[142]     Mrs.
Guitierrez advances her future wage loss claim on the basis that she will work
until retirement at age 67, but only be able to maintain her current work hours
at 28 hours a week. Therefore her future loss is (40 – 26 =) 12 hours a week,
or (12 x 52 =) 624 hour annually, excluding overtime. Based on her current
hourly rate rounded up to $14 an hour, the annual loss is $7,950, or $8,000
which results in an earnings approach loss of $163,000. The figure is “adjusted
for positive and negative contingencies” to arrive at $122,394, which is then
increased by $15,860 or 13 percent for fringe benefits resulting in $137,860 or
$137,000 as the amount of Mrs. Guitierrez’s future wage loss claim.

[143]     I consider
13 percent for non-wage benefits too high. Ms. Clark’s report states that the
cost of various insurance and pension plan benefits to the employer can be used
to approximate the values of the benefits to some employees. However, the
figure of 10.3 percent of gross payroll for non-taxable non-wage benefits
includes, Workers’ Compensation Board benefits, employment insurance premiums,
and Canada pension plan premiums, and the percentage of payroll cost differs by
industry, ranging from 5.8 percent in the retail trade and consumer services
industries to a high of 18.1% in the “primary product manufacturing industry”.
There is no evidence that Mrs. Guitierrez has lost her Workers’ Compensation
Board, employment insurance or Canada pension plan benefits, except to the
extent that she is working less than a 40 hour week. There is no evidence of
the cost of Creekside’s cost of the group benefits, and doing the best I can, I
award her 5 percent of the $122,394 which she claims as lost wages.

[144]     The
defendant again argues that Mrs. Guitierrez is exaggerating all of her symptoms;
she is capable of working full-time; she is not entitled to anything for lost
income earning capacity, there is no medical evidence that Mrs. Guitierrez will
not recover. I disagree. Dr. Iriarte could only go so far as to say that she
hoped Mrs. Guitierrez will recover. Dr. Underwood states that it is unlikely
that Mrs. Guitierrez can ever return to full-time work, and Dr. Koch’s
prognosis for her recovery is guarded.

[145]     I find
that Mrs. Guitierrez suffers from chronic musculoskeletal pain in her neck,
shoulder and low back, patellofemoral syndrome in her left knee, de Quervain’s
tenosynovitis in her left thumb, and post-traumatic stress disorder as a result
of the accident. Her pre-existing psychological disorders, and her post-traumatic
stress disorder have exacerbated her physical symptoms. Her prognosis for
improving her mental health problems is guarded if she does not receive
appropriate psychological treatment, which is in turn limited by her lack of
English fluency, formal education, or job skills. I find that there is a real
possibility that she will be unable to return to work a full eight hours a day
or 40 hours a week.

[146]     There is
little doubt that before the accident, Mrs. Guitierrez was limited in her
ability to obtain employment except for generally lower level unskilled jobs:
her first job in Canada was as a factory worker and her current work is as an assembly
line worker.

[147]     The
defendant argues that there is no real possibility that she will lose her
current job because Mrs. Cutz is her sister-in-law, she has a voice in the
decision making process and she will not let her sister-in-law get fired. However,
that proposition was never put to Mrs. Cutz in cross-examination and is also
contradicts Mrs. Cutz’s evidence that the decision whether Mrs. Guitierrez will
be kept in her current job is a decision that will be made by the plant manager
and that she has no role in that decision. As I stated earlier, I could not
help but gain the impression from Mrs. Cutz’s demeanour and the tone of her
voice, that there is a real and possible risk that Mrs. Guitierrez may not be
kept on with Creekside even though she has worked for the company for some 15
years.

[148]     Mrs.
Guitierrez is not a person who has voluntarily withdrawn from the workforce.
She and her husband work hard and there are financial pressures for them to
both work. There is also a possibility that she will find other employment, and
it may be in what Dr. Underwood calls a “warm environment”, but at this time
there is no way of knowing.

[149]     I do not
understand the defendant’s argument that only 30 to 40 percent of the employees
at Creekside work in the cold room, and that as the shift differential works
out to $6 a week, less than what it is Mrs. Guitierrez claims, there should be
no award under this heading. I am not certain whether the defendant is
suggesting that Mrs. Guitierrez should find work at Creekside other than
in the cold room. That was never put to her or to Mrs. Cutz. It may be that the
other employees are office workers, sales persons, truck drivers, or in other
positions for which Mrs. Guitierrez is wholly unsuited.

[150]     Mrs.
Guitierrez is to be put in a position she would have been but for the accident
as far as money can do that. Her capacity to earn income has been negatively
affected by the accident. In this case her past earnings are a factor to take
into consideration, recognizing that the assessment of damages is not simply a
matter of mathematical calculation.

[151]     Ms. Clark,
the economist, was asked questions on cross-examination relating to labour
market contingencies and retirement. She testified that retirement is a very
personal and takes into account personal circumstances.

[152]     Apart from
Canada Pension Plan, neither Mr. or Mrs. Guitierrez have a pension plan, they
are of very modest means, they both work as hard as they can, they worry about
finances, and there is a real and substantial possibility that Mrs. Guitierrez
will work to age 67, if she is able to, but for the accident. She was never
asked the question of how long she intended to work, and I am left to determine
that on the evidence before me.

[153]     For loss
of future earnings, including loss of fringe benefits, I award Mrs. Guitierrez
$128,515.

Loss of Homemaking Capacity

[154]     The
defendant contends that nothing should be awarded under this head of damages.

[155]     The
defendant contends that Mr. and Mrs. Guitierrez told different and conflicting
stories of who does what at home. He argues that Mrs. Guitierrez testified that
she did all of the housework before the accident, while Mr. Guitierrez testified
that he did some of the vacuuming. Mrs. Guitierrez testified on examination for
discovery that “…in the kitchen I prepare what can be made in the fastest time”
and that she was not using recipes but “making hotdogs or cooking an egg”. At
trial she added that she was cooking noodles. Mr. Guitierrez testified that his
wife was only preparing sandwiches and cereal. The defendant is splitting
hairs. Husbands and wives often do not see eye to eye on their respective
contribution to the cooking, housework or the care of their children. Whether
Mrs. Guitierrez is making hotdogs or sandwiches, preparing cereal or cooking an
egg: it is consistent with her evidence that she is not using recipes – meaning
that she is no longer preparing traditional “cultural dish” such as she used to
bring to the monthly parents’ association potluck dinner, or preparing meals
like she used to for the family, but preparing “what can be made in the fastest
time”.

[156]     The law
relating to loss of homemaking capacity is set out in Westbroek v. Brizuela,
2014 BCCA 48 at para. 74. What is being compensated is the loss of homemaking
capacity, and it does not matter that the work is being performed by others in
the family because of the accident. The evidence establishes that
Mrs. Guitierrez can no longer cook like she used to, or do housework like
she used to. She needs help with heavier housekeeping activities and maintenance.
I consider an award under this heading at $7,000 to be reasonable.

Future Care Costs

[157]     Mrs.
Guitierrez relies on Dr. Iriarte’s report that to avoid deconditioning, she
should maintain exercises such as stretching, strengthening and low impact
cardiovascular exercises such as swimming. She also relies on the
recommendation that she continue to follow up with Dr. Underwood, and Dr. Koch
recommends that Mrs. Guitierrez return to Dr. Ferrada for 20 more sessions of
cognitive behavioural therapy for her post-traumatic stress disorder.

[158]     Mrs.
Guitierrez claims future care costs of $10,000 based on the average of special
damages incurred over the last four years.

[159]     The list
of special damages totalling $7,884.92 includes $3,042.13 for prescriptions,
$3,235 for physiotherapy, and the balance of $1,607.79 consists of various
items, including custom orthotics ($523.97), knee brace ($114.07), Yellow Cab ($117),
and other items such as a neck pillow, foam roller, and heated gloves. There
are no amounts in her claim for special damages that relate to the cost of
exercises or attending a community centre, Dr. Ferrada, or Dr. Underwood.

[160]     I can only
assume that because Dr. Underwood is a physician, her fee would be covered by
the provincial medical services plan. The defendant argues that Mrs. Guitierrez
paid no fee to Dr. Ferrada, and that she will incur no fee for attending Change
Pain, but there was no evidence in that regard. Following closing arguments, I
invited counsel to respond to the argument of the defendant regarding the fee
of Dr. Ferrada.

[161]     I received
a written response dated February 18, 2015 from counsel for Mrs. Guitierrez
(with a copy to counsel for the defendant) that both counsel have determined
that Dr. Ferrada did not charge Mrs. Guitierrez a fee because her counselling
fees were paid by ICBC as part of Mrs. Guitierrez’s Part 7 benefits. A review
of the records of ICBC by both counsel disclose that Dr. Ferrada charged ICBC a
fee of $160 a session for a total of 21 sessions for a total cost of $3,360.
Counsel also confirmed that Dr. Ferrada is not affiliated with the Change Pain
clinic.

[162]     There is
no doubt that as a result of the accident, Mrs. Guitierrez will incur future
care costs including the cost of prescriptions, attending a community centre so
that she can swim and exercise, custom orthotics every two to three years, and
attending psychological counselling with Dr. Ferrada. Doing the best I can
with the evidence, and considering the fee charged by Dr. Ferrada, I award Mrs.
Guitierrez $7,000 under this head of damage.

In Trust Claim

[163]     Mrs.
Guitierrez advances an in trust claim of $5,000 on the basis that for the past
four years and for the foreseeable future, her husband will be providing
support to her. The defendant notes that in the trust claim it has not been
pleaded (see Star v. Ellis, 2008 BCCA 164 at para. 21).

[164]    
Both parties rely on the factors to be considered in assessing an in
trust claim as set out in Bystedt (Guardian ad litem of) v. Hay, 2001
BCSC 1735 at para. 180, aff’d 2004 BCCA 124:

(a)   the services provided must replace services necessary
for the care of the plaintiff as a result of a plaintiff’s injuries;

(b)   if the services are rendered by a family member, they
must be over and above what would be expected from the family relationship;

(c)   the maximum value of such services is the cost of
obtaining the services;

(d)   where the opportunity cost to the care-giving family
member is lower than the cost of obtaining the services independently, the
court will award the lower amount;

(e)   quantification should reflect the true and reasonable
value of the services performed taking into account the time, quality and
nature of those services. In this regard, the damages should reflect the wage
of a substitute caregiver. There should not be a discounting or undervaluation
of such services because of the nature of the relationship; and,

(f)    the family members
providing the services need not forego other income and there need not be
payment for the services rendered.

[165]     What must
also be considered is the reasonableness of the claim, and any other
compensation Mrs. Guitierrez is receiving. She is being awarded $7,000 for loss
of housekeeping capacity, and the evidence establishes that Mr. Guitierrez has
stepped in and taken care of many of the housekeeping tasks. However, Mr. Guitierrez’s
services are not necessary for the care of Mrs. Guitierrez (as opposed to the
care of the household) because of her injuries, and it cannot be said that the
services Mr. Guitierrez provides are over and above what would be expected from
a family relationship. To award Mrs. Guitierrez an in trust claim on the basis
that Mr. Guitierrez now does some of the household tasks that she did before
the accident, and at the same time, award her loss of housekeeping capacity,
amounts to double accounting. I decline to make an award under this head of
damages.

Special Damages

[166]     Special
damages are agreed at $7,884.92.

conclusion

[167]     Mrs.
Guitierrez is entitled to the following damages:

[168]    
Mrs. Guitierrez is also entitled to the costs of this action.

“Loo J.”

_______________________________

The Honourable Madam Justice Loo