A Victoria man who alleged he suffered “nervous shock” after witnessing a motorcycle strike his wife as the couple jaywalked across Victoria’s Yates Street has been awarded almost $100,000.
The 48-year-old, Ariston Quirimit Marcena, was awarded $98,794.86 in damages in a ruling Tuesday from B.C. Supreme Court Justice Jennifer Power.
According to the ruling, Marcena’s wife was hit by a motorcycle, driven by defendant Barry Robert Thomson, while the couple attempted to cross Yates Street, just east of Cook Street, on the morning of March 20, 2013.
The two had just left a medical imaging appointment for Ms. Marcena, who is not named in the ruling. She was struck in the left of two driving lanes after the couple proceeded in front of two vehicles stopped in the right lane.
“There is no question that Mr. Marcena is partially liable for the injury he suffered,” Power wrote, highlighting his actions as negligent and in breach of B.C.’s Motor Vehicle Act. The husband initiated the jaywalking and the couple chose to jaywalk instead of walking to a light-controlled intersection. The couple jogged into the second driving lane without looking left.
“Nonetheless, I find that Mr. Thomson bears some liability for the accident,” Power wrote.
Thomson — who did not testify at trial but whose pre-trial testimony was considered by Power — testified in the read-in evidence nothing was obstructing his view down Yates Street, according to the ruling.
Ms. Marcena, who was wearing a bright yellow sweater, and her husband managed to pass through a parking lane, a bike lane and a driving lane before she was hit. An elderly woman was crossing the area at roughly the same time and two vehicles had stopped in the right lane, with one independent witness stating the vehicles were stopped for almost a minute to allow the three pedestrians to pass.
“I conclude that there was a hazard to be seen and that Mr. Thomson either failed to see it or failed to take appropriate evasive action,” Power wrote. “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.”
Power, after totalling damages at slightly more than $395,000, reached the judgement amount after assigning Thomson 25 per cent liability.
She wrote the evidence — which included opinions from two medical experts — confirmed Marcena suffered psychiatric injury as a result of the collision and that a diagnosis of major depression was tied to the crash. He has also “suffered from poor concentration, inadequate sleep, decreased energy levels, lack of motivation, headaches and forgetfulness” since the crash, and has been unable to work since 2014. His relationships with his wife and son were also impacted, Power wrote.
His wife, Ms. Marcena, filed a separate action for damages, which has since settled.
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