An emotionally broken truck driver has been awarded about $1.6 million in damages by the Supreme Court of British Columbia more than five years after he was involved in a fatal collision with a young drunken motorist.
Court records show the head-on collision happened Aug. 5, 2015, on Ness Lake Road, northwest of the city of Prince George, B.C.
On that morning, Alan Whitney Kempton was on his way to pick up a load of hog fuel when a car driven by 19-year-old William Ross Struke crossed the center lane and smashed into his rig.
Struke, who had been drinking with friends the evening before and into the morning, died on the spot, and his car was “crushed like an accordion”, a police report said.
Kempton, 48 at the time, only suffered bruises in the collision, but his life changed forever, the B.C. Supreme Court said in a judgment issued Dec. 31, and posted on its website Jan. 5.
It said the crash had affected every aspect of Kempton’s life.
“It has rendered a vital, engaging, hard-working man into a broken and lethargic shell of his former self,” Justice David Crerar wrote.
The judge said Kempton had continued to work despite the trauma of the accident for 10 more months, but had to stop due to deep stress.
“The plaintiff had and continues to have recurring nightmares about the accident. Certain sounds, smells, images, or situations serve as triggers, bringing him back to the moment of the accident,” Crerar wrote.
“These recollections are often accompanied by an audio hallucination of bone hitting metal, although it is unlikely that he would have in fact heard this sound in the accident.”
In 2018, WorkSafe BC, a provincial agency, determined Kempton to be “competitively unemployable.”
The same year, Kempton and his wife moved back to his home province of Nova Scotia where, the court said, he lives “in a semi-hermit state” on the remote Digby Neck peninsula.
Kempton’s lawyer, David Wallin, sought $2.3 million in damages after his insurer, the Insurance Corp. of British Columbia (ICBC), rejected his efforts for an out-of-court settlement.
The court awarded $1.594 million to Kempton, including $700,000 for loss of future earning capacity.
Still, Wallin welcomed the verdict.
“It is not a windfall by any stretch for Mr. Kempton, but it is a well-reasoned judgment,” Wallin told Today’s Trucking in an interview.
He said the award was certainly reasonable in light of the evidence and the current state of the law with respect to compensation of bodily injuries in B.C., and the legal constraints in relation to awarding damages for injured motorists.
Although the verdict was against the estate of Struke, the money will still come from ICBC, he said.
The 10-day trial was held in June, and was the first hearing of a case by the B.C. Supreme Court since its reopening following a pandemic lockdown.
Wallin, director of Whitelaw Twining Law Corp., of Vancouver, B.C., sharply criticized the handling of Kempton’s case by both WorkSafe BC and ICBC.
“The way he was treated by WorkSafe, he felt that they weren’t concerned about trying to help him,” he said.
“They were concerned about assessing him, and ultimately in his view, writing him off.”
At the end, Kempton was pensioned off with a monthly payment of $4,100.
Wallin hit out against ICBC, saying the insurer had re-victimized Kempton by taking him to trial.
“This could have been avoided. Mr. Kempton could have avoided going to trial, and all the stress that (ICBC) put on him and his family,” Wallin said.
He said despite its eagerness to go to trial, ICBC called no witnesses or experts to rebut evidence.
“This is the first trial I have ever run in almost a 25-year career of doing personal injury work, where the defense is not covered, not called one witness.”
He said ICBC’s last offer was only a small percentage of the reasonable value of Kempton’s claim.
“Our own pretrial settlement offer was less than what the trial Judge awarded Mr. Kempton for his claim,” Wallin said.
The agencies could not be reached for comment.
Trucks not at fault
Multiple studies in the U.S. in the past seven years have suggested that a majority of truck crashes are actually caused by cars.
It is no different in Canada.
Michael McGrath, safety research adviser at the Ontario Ministry of Transportation, told a recent Fleet Safety Council webinar that often it is not the driver of the large truck who is found to be at fault in a collision.
He said it is important to educate the general public about navigating around trucks safely.
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