A former Prince George man who continues to suffer psychological fallout from a fatal head-on collision has been awarded nearly $1.6 million in damages.
Alan Whitney Kempton was behind the wheel of a tractor-trailer on the morning of August 15, 2015, when a car driven by a 19-year-old local man swerved into his lane while traveling along Ness Lake Road.
Despite Kempton hitting the brakes, they collided and the man was killed instantly. Kempton escaped serious physical injury but, according to a decision issued December 31 by B.C. Supreme Court Justice David Crerar, Kempton has been unable to shake off the memory of that day.
"For the five years since the accident, he has been unable to sleep for more than two or three hours at a stretch. Recurring nightmares of the accident and being trapped in the cab cause him to jerk violently in his sleep. He claws the bedroom wall, and his toenails gouge his legs, as he tries to kick free," Crerar wrote.
Kempton continued to work as a truck driver for another 10 months but eventually quit because he found driving in general to be too stressful. Doing so brought on anxiety attacks, particularly when driving by accident scenes, and rage at other drivers who drove aggressively or tailgated.
"At times he experienced flashbacks to the accident. He sometimes would freeze or 'black out' while driving his truck; when he regained focus, his knuckles were strained from gripping the wheel. At times he vomited. Several times, he had panic attacks, and drove his personal vehicle off the road," Crerar wrote.
Although entirely blameless for the collision, Kempton still tends to feel guilt. On the day in question, Kempton broke from his routine of buying coffee at a local gas station and believes that had he not done so, that few minutes delay would have made the difference.
Kempton now leaves the bulk of the driving to his wife. When the anxiety is acute, he wears a blindfold or sunglasses with blocked-out eyepieces so he does not see the road or surroundings and sometimes adds a mixture of Gravol and vodka to his coping strategy as a passenger.
Noting a reading disorder limited Kempton's education to a Grade 6 level, Crerar outlined a lifelong struggle for Kempton to overcome adversity and appeared to have finally landed his "dream job" when he began hauling chips just a few weeks before the crash.
Kempton and his wife have since moved to Nova Scotia where he grew up, and where they now live in a remote area and effectively in a semi-hermit state.
Crerar wrote that the man who died in the collision had been drinking with friends the evening before and into the morning and that Kempton recalls seeing the man slumped over his steering wheel, likely asleep, just before impact.
The man's estate and his family are named as defendants in the case, but in an interview, Kempton's lawyer, David Wallin, said the Insurance Corporation of British Columbia is responsible for paying out the total.
Wallin had been seeking $2.3 million, or $710,994 more than the $1.59 million Crerar had settled on. However, Wallin said he offered to settle the matter out of court for an amount "considerably below what the court had awarded us in order to avoid a trial."
Wallin took ICBC to task for forcing a trial and said he will be applying to have the insurer pay "double cost" for the legal expenses racked up on Kempton's behalf.
"If you make an offer pretrial that's less than the amount that the judge awarded you, you can seek basically a spanking of ICBC for forcing my client to go to trial when they could have resolved the case for hundreds of thousands of dollars less," Wallin said. "It's just another example of mismanagement at ICBC as far as I'm concerned."
Wallin said he is generally satisfied with the amount awarded by the court but noted that Kempton will receive only $700,000 for loss of future earnings, some $300,000 below what he had been seeking.
"I did think that the court was a little lean on his future earning capacity considering he has 20 more years ahead of him," Wallin said. "Unfortunately, Al had just started with a new job and didn't have a great earnings track record for the years leading up to the accident, so the judge basically awarded him $700,000 which works out to $32-$35,000 a year for the next 20 years which is considerably less than what most truck drivers make.
"In fact, it's somewhere around minimum wage. If you were working at Tim Hortons you'd be making that so disappointed in that number but all in, I thought it was a fair result, for sure."
In an emailed response to a request for comment, ICBC spokesperson Lindsay Wilkins said the Crown corporation "makes every effort to settle claims before they go to trial."
"In 2019, less than one per cent of cases actually went to court. In addition, about 60 per cent of the trial results ICBC received for 2019 trials led to outcomes better than the plaintiff’s final demand for settlement, leading to savings for ICBC customers," Wilkins said.
"Unfortunately, this was one case where the parties were not able to agree on the value of the claim and it proceeded to trial."