On March 20, 2013, Ariston Quirmit Marcena (“Marcena”) and his wife jaywalked across a street to their car after attending a medical appointment.  Mrs. Marcena was hit by a motorcycle and suffered serious injuries.  Marcena witnessed the accident and was diagnosed as suffering from nervous shock.  A B.C. Supreme Court judge awarded Marcena $98,794.86 in damages for the psychological injuries that he suffered as a result of observing his wife’s accident.


On the morning of March 20, 2013, Mr. and Mrs. Marcena were jaywalking across Yates Street in Victoria when Barry Robert Thomson (“Thomson”) hit Mrs. Marcena with his motorcycle. 

Mrs. Marcena filed a separate lawsuit regarding the damages she suffered as a result of the accident and her case has settled. 


Marcena sued Thomson for damages for nervous shock, which he alleges to suffer as a result of witnessing his wife being hit by Thomson’s motorcycle. Thomson adamantly denied liability at the trial.

B.C. Supreme Court Justice Jennifer Power ruled that Marcena was partially liable for the injuries he suffered.  Marcena initiated the jaywalking and his behaviour was found to be negligent and in breach of British Columbia’s Motor Vehicle Act

Justice Power also found the motorcyclist, Barry Robert Thomson, responsible for the accident as there was a hazard to be seen, nothing was obstructing his view and Ms. Marcena was wearing a bright yellow sweater.  Furthermore, the judge found that there was no evidence of any precautions taken by Thomson. 

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.

Justice Power concluded that because Thomson failed to keep a look out, failed to see what there was to be seen, and failed to take appropriate evasive action, he should therefore bear 25% liability for the collision.


At trial, Marcena alleged that he suffered psychological injuries as a result of seeing his wife struck and injured by the motorcycle accident.  The onus is on Marcena to show there is a “nexus” between the injuries that he sustained and Thomson’s negligent act or omission.  The question that the court was asked was “but for the defendant’s negligence, would the plaintiff have suffered the injuries?”

Justice Power agreed with Marcena’s allegations and concluded that the medical evidence established that Marcena suffered a psychiatric injury as a result of witnessing Thomson’s negligent conduct in running over Mrs. Marcena with his motorcycle.  Justice Power stated:

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.  …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.


Justice Power concluded that Marcena suffered a psychiatric injury and was diagnosed with major depression as a result of witnessing his wife being struck by a motorcycle.  Since the accident, Marcena was also found to suffer from poor concentration, inadequate sleep, decreased energy levels, lack of motivation, headaches and forgetfulness.  The evidence before the court also established that Marcena had been unable to work since 2014 and has had ongoing trouble maintaining his relationships with his wife and son as a result of the accident.

In determining an assessment of non-pecuniary damages (damages which are not readily quantified or valued in money), the court considered the following factors:

  1. Age of the plaintiff;
  2. Nature of the injury;
  3. Severity and duration of pain;
  4. Disability;
  5. Emotional suffering;
  6. Loss or impairment of life;
  7. Impairment of family, marital and social relationships;
  8. Impairment of physical and mental abilities;
  9. Loss of lifestyle; and
  10. The plaintiff’s stoicism.

At the conclusion of the trial, Justice Power awarded Marcena the following:

  1. Non-pecuniary damages      $125,000
  2. Gross past wage loss             $140,000
  3. Loss of future income           $120,000
  4. Cost of future care                $10,000
  5. Special damages                    $179.45

Marcena was awarded $395,179.45 in total damages.  This damage award was reduced to 25% in light of the judge’s findings on liability. 

At Cuming Gillespie Lawyers, we are committed to helping you and your loved ones.  If you or a loved one have been injured in a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages.  Please contact the award winning lawyers at Cuming & Gillespie LLP either online or by calling 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.