We often think of the physical damage caused by collisions but what about the mental harm? The case of Marcena v Thomson involves a court action for the psychological injuries suffered by a husband who watched his wife being injured in a crash as they crossed the road together and were struck by a motorcycle.
The Collision
Ariston Marcena and his wife decided to cross Yates Street just east of Cook Street in Victoria. When two vehicles in the lane closest to them stopped for his wife, Mr. Marcena urged her to cross the two lanes (not in a crosswalk) at a jog as he assumed that traffic was going to wait. Barry Thomson was riding his motorcycle in the next lane over and did not stop. He struck and injured both Marcenas.
Damages for Mental Shock
Mr. Marcena sued Mr. Thomson for the mental shock that he suffered witnessing his wife being injured in the collision.
Justice Power found that his mental shock did result from the collision:
[73] I agree with the plaintiff that these factors support the plaintiff’s claim. Mr. Marcena’s relational proximity to Ms. Marcena (her spouse) and his locational proximity (immediately beside the collision) are very close. The evidence has established that Mr. Marcena was distraught in the immediate aftermath of the collision, and his psychological disturbances began soon after.
[74] As stated, the medical evidence confirms that Mr. Marcena suffered an actual psychiatric injury and has been diagnosed with major depression as a result of Mr. Thomson’s negligent conduct in striking Ms. Marcena. 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.
[75] 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. The plaintiff has established his claim for the psychological injuries he suffered as a result of the collision.
Discussion of Liability for the Crash
Of interest in this case is Madam Justice Power's analysis of the duties that the participants had to each other in this situation, particularly that of Mr. Thomson. He should have been alerted that something was happening due to the two vehicles stopped in traffic to his right. He bears some liability for the collision as he did not exercise due care.
The Marcenas were required to yield to vehicle traffic when they crossed as they did. They did not yield so they were also liable for the collision.
The Judgment
Justice Power set the liability for the collision to be 25% for Mr. Thomson, the motorcycle rider, and 75% for the Marcenas who failed to yield to him.
Mr. Marcena received 25% of the $395,179.45 judgment, or $98,794.86.
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