A British Columbia court recently awarded a husband $98,000 in damages for nervous shock after he witnessed his wife being struck by a motorcycle.
A husband and wife were jaywalking across Yates Street in Victoria, B.C. when a collision occurred: the wife was hit by a motorcycle and suffered serious injuries. The collision took place at approximately 9:00 a.m. on March 20, 2013.
The wife brought a separate action for damages as a result of injuries she suffered from the collision.
The husband sought damages for nervous shock he alleged he suffered as a result of witnessing a collision between the motorcycle driver and his wife. He alleged that he suffered psychological injuries, including a major depressive disorder, as a direct result of seeing his wife struck and injured.
The motorcycle driver argued that there was no evidence of negligence and specifically that there was no evidence of the speed his motorcycle was travelling, the location of the motorcycle prior to the collision, and no evidence relating to distance and how he could have reacted to avoid the collision. Additionally, while the motorcycle driver conceded that the nervous shock suffered by the husband was real, he argued that the amount of money sought was inflated.
The husband submitted that the appropriate range of non-pecuniary damages was between $165,000 and $275,000 and sought an award of $200,000. He further sought an award of $170,052 in past wage loss, and $493,100 for his loss of future earning capacity.
The court began by outlining the legal obligation that both pedestrians and drivers owe a duty to take reasonable care for the safety of themselves and others when using a roadway.
The court found that there is no question that the husband was partially liable for the injury he suffered; he initiated the jaywalking that was a substantial cause of the accident by choosing to jaywalk across a multi-lane street instead of walking some meters down to a light-controlled intersection. Additionally, the court found that the husband and wife moved quickly across the lanes, and entered lane two without looking left for oncoming traffic. The court concluded that such behaviour was clearly negligent and the husband’s negligence created a significant risk of harm.
However, the court also found that the motorcycle driver bore some liability for the accident because there was no evidence as to what, if any, precautions he took to avoid the collision.
The court concluded that the motorcycle driver bore 25% of the liability for failing to keep a look-out, failing to see what there was to be seen and failing to take appropriate evasive action.
Additionally, the court found that the motorcycle driver’s negligence was the proximate cause for the husband’s injuries, and the mental harm he suffered was a “reasonably foreseeable outcome for a person of ordinary fortitude”. It found that the husband had established his claim for the psychological injuries he suffered as a result of the collision.
In assessing the non-pecuniary damages, the court explained that the following factors should be taken into account:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(e) emotional suffering; and
(f) loss or impairment of life;
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism.
The court observed:
“Since the accident, [the husband] has suffered from poor concentration, inadequate sleep, decreased energy levels, lack of motivation, headaches and forgetfulness. He has been unable to work since 2014, and reports no longer being able to participate in recreational activities the way he used to. [The husband] testified that prior to the accident, he enjoyed playing guitar, golfing, and drawing. His interest in these activities has been reduced, although his carpal tunnel syndrome appears to also play a role in this.”
The court further observed that the husband had also suffered physical consequences and his relationships had suffered.
The court concluded thatthe appropriate award for non-pecuniary damages was $125,000.
The court further concluded that the husband was entitled to $140,000 in damages for past loss of earning capacity, $120,000 in loss of future earning capacity and $10,000 for the cost of future care.
The total damages awarded to the husband were therefore set at $395,000.
Because the court found the motorcycle driver was only 25% liable, he was ordered to pay 25% of the total award to the husband, or $98,000.
At Campbell Litigation, our Waterloo-based motorcycle accident lawyers can help you get what you need following a road accident. Although your injuries may be severe and you may be in need of immediate care, your insurance company will still require specific evidence before it will release the benefits you have paid for. A lawyer can advocate for you to get your insurance benefits so you can recover.
Depending on your situation, a lawsuit may be appropriate for you. At Campbell Litigation, we will provide you with objective advice regarding your situation and give you an honest assessment of what we can do for you as your lawyers.
If you or a loved one has been involved in a motorcycle crash and requires legal advice, our firm is here to assist you. To contact a member of our team, call us at 519-886-1204 or contact us online. We offer prospective accident clients a free initial consultation.