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Victoria jaywalker who witnessed crash gets $98,000 award for ‘nervous shock’

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.
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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, identified as “Ms. Marcena” in the court ruling, had been at a medical appointment. The appointment was for his wife.

As they were returning to their parked car, they decided to jaywalk. While they were crossing Yates Street, Ms. Marcena was hit by a motorcycle 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. Marcena sued for “nervous shock” he said he suffered as a result of witnessing the collision.

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 collision, the judge said.

The road Thomson was travelling along was clear and straight, there was nothing obstructing his view and Ms. Marcena was wearing a bright yellow sweater, Power 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.”

Medical evidence presented to the court confirmed that as a result of seeing his wife being struck by the motorcycle, Marcena suffered a psychiatric injury and was diagnosed with major depression, Power said.

“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,” she said. “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 after the collision he 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 been affected by the incident.

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.