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Psychiatric injuries impacting all aspects of life justify upper-range award: personal injury lawyer

B.C. court awards plaintiff with severe PTSD after auto accident non-pecuniary damages of $200,000

Psychiatric injuries impacting all aspects of life justify upper-range award: personal injury lawyer
Jacqueline Small is a partner at Holness and Small Law Group Professional Law Corporation.

A recent case involving a tragic motor vehicle accident with significant life-altering and permanent consequences on the plaintiff sheds light on how the court may address a plaintiff’s severe post-traumatic stress disorder, a personal injury lawyer has said.

Jacqueline Small, a partner at Holness and Small Law Group Professional Law Corporation who has more than 16 years of experience of representing injured parties in relation to all types of personal injury claims, including claims involving the Insurance Corporation of British Columbia, discussed in a blog post the case of Kempton v Struke Estate, 2020 BCSC 2094, where the plaintiff’s severe psychiatric injuries, which negatively impacted his life in all aspects, clearly justified a non-pecuniary damage award at the upper range.

“In my view, the trial judge correctly declined to significantly reduce his damages to take into account his pre-existing psychological and physical conditions choosing instead to make a small reduction,” Small told Canadian Lawyer.

In August 2015, the plaintiff was driving a tractor-trailer when the car driven by 19-year-old William Struke crossed the centre line into the lane occupied by the plaintiff’s vehicle. While the plaintiff braked, Struke, who was seemingly asleep, made no such attempt. The plaintiff witnessed Struke’s car disappear under his truck as if crushed like an accordion. Struke was instantly killed.

Due to the impact, the plaintiff fell to the floor of his truck cab and remained trapped there, where the wreckage of Struke’s car was visible through an ankle window, until emergency responders arrived. The plaintiff experienced minor injuries on his chest and calf and was swiftly discharged from the hospital.

However, in the five years since the accident, the plaintiff frequently experienced guilty thoughts, psychological stress, anxiety attacks while driving, anxiety around other people, sleeping troubles causing sleep deprivation, recurring nightmares, flashbacks of the accident, memory lapses, personality changes affecting his relationship with his wife, pain all over his body and weight gain due to inactivity. He also self-medicated through alcohol and was triggered by depictions of violence and car accidents on television news and programmes.

These issues eventually prevented the plaintiff from doing activities that he previously enjoyed, including driving, leaving the house, household tasks, carpentry work, construction efforts on his house and outdoor activities. He started living in a semi-hermit state in what he dubbed “a forgotten part of Canada,” which was a remote area with limited access to psychological and counselling services.

The plaintiff sought compensation for his ongoing PTSD and for certain physical injuries that he claimed were caused or worsened by the accident. The court accepted that the plaintiff had established on a balance of probabilities that the accident caused his PTSD and impacted every aspect of his life. The court found that the plaintiff’s despair was conveyed through the testimonies of his wife, the medical experts and the plaintiff himself, as well as through the plaintiff’s meandering and distracted manner when presenting his testimony.

The trial judge rejected the argument that the plaintiff failed to mitigate his damages by not seeking consistent treatment for his severe PTSD.

“In my view, this finding properly takes into consideration the debilitating effects of PTSD which the trial judge accepted was the reason behind his failure to seek treatment,” said Small. “It furthermore recognized the permanent nature of his condition and the unlikelihood that treatment would improve his condition substantially in any event.”

The court decided on $225,000 as a base for non-pecuniary damages, considering the factors mentioned in Stapley v. Hejslet, 2006 BCCA 34 and the findings in applicable cases also involving lifelong and irremediable transformation of a plaintiff’s life due to PTSD and depression. The court reduced the non-pecuniary damages to $200,000, reasoning that, without this accident, there was a real risk that another trigger or accident would have caused a similar psychologically disabled state.

The court also awarded damages for past and present loss of earnings/loss of opportunity and future costs of care, among other types of damages, for a total award of $1,594,469.45 in damages.

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