Victoria jaywalker who witnessed accident gets $98,000 in damages for "nervous shock"
Credit to Author: Keith Fraser| Date: Fri, 09 Aug 2019 14:00:08 +0000
A Victoria man who jaywalked with his wife has been awarded $98,000 in damages for “nervous shock” after he witnessed his wife being hit by a motorcycle.
On the day of the incident, on March 20, 2013, Ariston Quirimit Marcena, 48, and his wife had been at a medical appointment for Ms. Marcena.
As they were returning to their parked car, they decided to jaywalk to get to the car and while they were crossing Yates Street, Ms. Marcena was hit by a motorcycle being driven by Barry Robert Thomson and seriously injured.
Ms. Marcena filed a separate lawsuit for damages as a result of her injuries and had her case settled but Marcena sued for “nervous shock” he claimed he’d suffered as a result of witnessing the traumatic event.
The case went to trial and in her ruling, B.C. Supreme Court Justice Jennifer Power found that there was “no question” that Marcena was partially liable for the injury he suffered.
“Mr. Marcena initiated the jaywalking that was a substantial cause of the accident,” said the judge.
“The Marcenas chose to jaywalk across a multi-lane street instead of walking some metres down to a light-controlled intersection. They moved quickly across the lanes, and entered lane two without looking left for oncoming traffic.”
The behaviour of the couple was clearly negligent and in breach of the Motor Vehicle Act but Thomson was also liable for the accident, added the judge.
The road Thomson was travelling down was clear and straight, there was nothing obstructing his view and Ms. Marcena was wearing a bright yellow sweater, she said.
“I find that once Mr. and Ms. Marcena started jaywalking, they were there to be seen. Even if they were not, the presence of two stopped vehicles on the road ahead should have alerted Mr. Thomson to the risk.”
While the Marcenas had created a hazardous situation, there was no evidence as to what, if any, precautions Thomson took to avoid the collision, said the judge.
“Had he slowed in response to the halted vehicles in lane one, or upon seeing the Marcenas — who were there to be seen — enter the road, he could have avoided the accident.
“I conclude that Mr. Thomson did not exercise due care to avoid colliding with a pedestrian on the highway, in violation of s. 181 (a) of the Act and his common law responsibilities. As such, he bears liability.”
The medical evidence confirmed that as a result of seeing his wife being struck by the motorcycle, Marcena suffered an actual psychiatric injury and had been diagnosed with major depression, said the judge.
“A reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident,” said Power.
“I find that Mr. Thomson’s negligence is a proximate cause for Mr. Marcena’s injuries, and the mental harm he suffered was a reasonably foreseeable outcome for a person of ordinary fortitude.”
Thomson was found to be 25 per cent liable for the collision.
Marcena’s depression had a significant impact on his well-being and following the collision he had also suffered from poor concentration, inadequate sleep, decreased energy levels, lack of motivation, headaches and forgetfulness, the trial heard.
Marcena has also been off work since 2014 and his relationships, including those with his wife and son, have also been impacted by the accident.
The judge awarded Marcena a total of $395,179 in damages but in light of the finding on liability, she determined that he was entitled to 25 per cent of that amount, or $98,794.
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