The Reasons for Judgment of The Honourable Mr. Justice Crerar were given December 31, 2020 in Vancouver, British Columbia
On August 5, 2015 the plaintiff Alan Kempton, was driving a tractor-trailer when a car driving in the opposite direction crossed the center line into his lane. Kempton braked but was unable to avoid impact. The vehicle was crushed beneath his truck. The defendant was killed instantly. Mr. Kempton was trapped in the cab of his truck. The plaintiff claimed that he has suffered serious post-traumatic stress disorder (PTSD) as the result of the events of that day, as well as injuries to his back, shoulder and collarbone. He was seeking compensation for loss of past and future earning capacity, cost of future care, loss of housekeeping capacity, an in trust claim for his wife, management fee and special damages. The defendants do not dispute that Mr. Kempton continues to suffer from PTSD. They argue however, that he failed to mitigate his damages. The defendants called no witnesses, factual or expert, in response to the plaintiff’s claim.
The Court found Mr. Kempton and his wife, Ms. Elford to be credible and reliable witnesses and accepted their testimony. Their evidence was confirmed by the medical experts. Dr. Soma Ganesan, Psychiatrist, and Dr. Hendre Viljoen, Neuropsychologist, both diagnosed Mr. Kempton with “severe” PTSD. Dr. Viljoen also diagnosed Mr. Kempton with a chronic and severe major depressive disorder. Dr. Ganesan preferred to describe the depression and anxiety disorder as “cluster manifestations” of the PTSD. The three experts who testified all agreed that the PTSD and other psychological symptoms exacerbate his pain and physical symptoms, which in turn, in a vicious cycle, exacerbate his psychological infirmities. His PTSD and general lack of motivation leads to lack of exercise and excessive drinking, leading to greater physical decline, and thus denial of a potential path to partial physical and psychological rehabilitation. With respect to prognosis they provided a pessimistic prognosis for the plaintiff’s recovery and functioning. Dr. Viljoen opined that “high levels of emotional distress and significant persisting emotional and behavioural dysfunction, together with persisting cognitive limitations, and the prognosis for a successful return to his preinjury vocational potential, social/interpersonal functioning, or quality of life appears to be very guarded indeed.” Dr Ganesan noted that “given the profundity and severity of Mr. Kempton’s conditions, his PTSD and depression may well get worse, rather than better, even with further treatment”.
Mr. Justice Crerar accepted that the plaintiff has proven, on a balance of probabilities, that the accident has caused his PTSD. He goes on to say that “The more important and clear physical result of the accident finds its roots in the PTSD and depression: the diminution of his mental ability to manage pain overall, including with respect to his pre-existing [unrelated] injuries.” In considering non-pecuniary damages the Judge emphasized that 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”. The Court rejected the defendant’s argument that the plaintiff failed to mitigate his damages.
Non-pecuniary damages – $200,000.00; Past loss of earnings – $175,000.00; Loss of future earning capacity – $700,000.00; Future costs of care; $298,546.85; Loss of housekeeping capacity – $20,000.00; In trust claim for Tammy Elford – $30,000.00; Management fee – $150,000.00; Special damages – $20,922; for a total award of $1,594,469.45
For further analysis and reporting of the decision, please download the linked PDF.
If you would like to book assessments with : Dr. Soma Ganesan, Psychiatrist or Dr. Hendre Viljoen, Neuropsychologist, please contact us atIntegra https://integraconnects.com/