A Victoria man who alleged he suffered “nervous shock” after witnessing a motorcycle strike his wife as the couple jaywalked across 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. The husband initiated the jaywalking instead of going to the light-controlled intersection, the ruling said.
“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.
“Nonetheless, I find that Mr. Thomson bears some liability for the accident.”
Thomson, who did not testify at trial but whose pre-trial testimony was considered by Power, had said nothing was obstructing his view down Yates Street.
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 judgment 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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