$200,000 Non Pecuniary Damage Assessment for Chronic Disabling PTSD

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and disabling injuries following a fatal motor vehicle collision.

In this week’s case (Kempton v. Struke Estate) the Plaintiff was involved in a 2015 collision.  He was operating a tractor trailer when the Defendant, travelling in the opposite direction, crossed the centre line resulting in a head on crash.  The collision killed the Defendant instantly.   The Plaintiff suffered few physical injuries but sustained post traumatic stress disorder (“PTSD”) as a result of the horrific crash.  This condition disabled him and was not expected to improve.

In assessing non-pecuniary damages at $200,000 Mr. Justice Crerar provided the following reasons:

[107]     The accident has affected every aspect of Mr Kempton’s life. It has rendered a vital, engaging, hard-working man into a broken and lethargic shell of his former self. Mr Kempton’s present despair was conveyed through his own testimony, through the testimony of his wife, and through the testimony of the medical experts who assessed him. It was also conveyed through his presentation during his lengthy testimony at trial. At all times, he seemed to be suffering from physical and emotional pain, with scarcely repressed anger. His appearance was disheveled. His affect was flat; his tone was blunt. His eyes were dark and darting. His testimony was often meandering and distracted. He had to ask for questions to be repeated. He would lose track of his answers halfway through and have to restart.

[108]     As set out above, his recurring nightmares and pain grant him only three or four hours of broken sleep each night. This prolonged lack of sleep leaves him physically and mentally fatigued. Between his dark thoughts whilst awake, and his nightmares while sleeping, he is more sleep-deprived than before the accident. He never wakes up feeling rested. He takes Nyquil, beer, wine, and cannabis cookies to fall asleep.

[109]     His alcohol consumption has increased significantly since the accident, particularly aimed at, in his mind, helping him sleep. He drinks one or two bottles of wine per day, or about a dozen beers. Drs Ganesan and Viljoen note that self-medication through alcohol is a typical manifestation in PTSD.

[110]     He and his wife testified that his personality has changed significantly. They confirm that the personality changes came immediately after the accident. Before the accident, Mr Kempton was engaging, and enthusiastic, with a good sense of humour. After the accident, he grew increasingly impatient, with a short temper. He suddenly erupts in anger toward other people, particularly when driving. Ms Elford described life as “walking on eggshells,” to avoid angering Mr Kempton. She listens patiently to his rants and outbursts, and does her best to calm him down.

[111]     This personality change has affected his relationship with his wife. Intimate relations have more or less ended since the accident.

[112]     He has significant memory lapses. While talking, he often loses focus and forgets the topic. This condition manifest itself in repeated and genuine fashion during his trial testimony.

[113]     Before the accident, Mr Kempton was an avid outdoorsman, spending hours pursuing activities such as hunting, trapping, fishing, kayaking, canoeing, power boating, motor biking, and backroading: that is, exploring backroads on a four-wheel drive vehicle. He now rarely leaves the house, and has no energy or enthusiasm for outdoor activities, or indoor activities for that matter.

[114]     He cannot even turn to television as an alternative form of distraction: any depiction of violence or a car accident on the news or in a programme will serve as a trigger.

[115]     Before the accident, Mr Kempton was hard-working. He took pride in his work, with an exacting attention to the details of his carpentry and construction. While he built custom houses before the accident, he is unable to build a window. As set out above, he had to abandon work on his house. He lacks the focus, confidence and energy to perform tasks at home or in the yard. He can no longer focus on or complete even the simplest of jobs. He cannot focus on tasks, and cannot remember where he has left his tools.

[116]      He states that he no longer feels happiness or joy. He describes his life as “useless.” He has lost all confidence. His loss of independence and pride in his industry imposes a further and compounding emotional stressor on him.

[117]     This loss of self-esteem, coupled with his injuries, coupled with his fatigue, coupled with his lack of focus, renders him unable to do the simplest of household tasks. He has been unable to chop wood or cut grass, and his house is a mess.

[118]     As set out above, he has become a recluse. He feels anxiety around other people. He runs away when the neighbours approach. He has not even contacted his mother since moving back to Nova Scotia. He feels shame at how he would present to her….

[121]     With an eye to the Stapley factors, and the most applicable cases, the Court finds that $225,000 would be an appropriate base for non-pecuniary damages.

[122]     The Court declines to significantly reduce this amount based upon his pre-accident conditions. Mr Kempton was generally able to cope with his pre-accident challenges, and the trauma of the accident clearly pushed him over the edge to a state of overall practical dysfunction. That said, absent the accident, there existed a real risk that some other trigger or accident would have reduced him to a similar psychologically disabled state. With this risk of mind, I reduce the non-pecuniary damages to $200,000.

bc injury law, Kempton v. Struke Estate, Mr. Justice Crerar, post traumatic stress disorder, PTSD

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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