CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Maija Laitinen
Indexed as: (Re) 1310-93807
ORDER
INTRODUCTION
1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”) a result of an incident which occurred on [date], 2013 where she witnessed the fatal shooting of her friend and neighbour, (the Victim), at a backyard barbecue outside of their apartment complex. The Offender was charged with first-degree murder and was ultimately convicted of second-degree murder on [date], 2016 following a guilty plea. On [date], 2016, the Offender was sentenced to life imprisonment with parole ineligibility for 13 years.
2The Applicant’s claim is for the injury known as mental or nervous shock. In other words, the Applicant is claiming compensation in the form of a pain and suffering award as a result of psychological injuries that she personally has suffered after witnessing the violent crime committed against the Victim.
3The Applicant also made a claim for counselling expenses. On August 28, 2014, the CICB issued an Interim Decision under section 14 of the Act authorizing $1,000.00 in interim funding for therapy expenses. At that time, the Applicant had already attended 10 counselling sessions funded by the Victim Quick Response Program (VQRP). After the VQRP funding had run out and based on the Applicant’s stated intention to continue therapy with the same Counsellor, the CICB authorized ten additional sessions of therapy at a cost of $100.00 per session to be used within 18 months of receipt of the interim order.
ISSUE
4There is no question in this case that the Applicant’s friend was the victim of a crime of violence within the meaning of section 5(a) of the Act. The issue for the CICB to decide is whether the Applicant is compensable as a secondary victim who suffered from the injury known as mental or nervous shock under the provisions of section 5(a) of the Act and, if so, to determine the amount of compensation to be made to the Applicant for pain and suffering.
HEARING
5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file. The CICB received the following documents with respect to the claim: a completed Police questionnaire dated [date], 2014 including the case file synopsis; media reports; a Therapy Report from the Applicant’s Counsellor dated [date], 2014; a note from the Applicant’s Family Doctor dated [date], 2013; and a Psychiatric Consultation Report dated [date], 2017.
6At page 5 of her Application, the Applicant states that she had been close friends with the Victim, who was also her upstairs neighbour, for approximately 14 years. The incident took place at a small outdoor party outside of their apartment complex to celebrate the Christian confirmation of another young resident of the building. There were approximately 10-12 guests in attendance at the party. The Police information confirms that, at approximately 7:30 p.m., the Applicant witnessed the Offender shoot the Victim two times in the chest with a rifle. The Applicant telephoned 911 while another neighbour administered CPR to the Victim. The Victim was transported to the Hospital via ambulance where he later succumbed to his injuries.
7At page 6 of the Therapy Report filed with the CICB, the Applicant’s Counsellor states that, following the incident, the Applicant exhibited symptoms related to “severe Post-Traumatic Stress Disorder (PTSD)” including fear, anxiety, hyperarousal, joint and muscle pain, fluctuating periods of insomnia, nightmares, loss of appetite, feelings of guilt and helplessness and unpredictable bouts of crying. Her relationships with family and friends have been strained. The Report notes that the Applicant’s psychological difficulties have been exacerbated by the fact that the incident took place just outside the back door of her apartment and she does not have the financial means to move elsewhere.
8The CICB also received a note from the Applicant’s Family Doctor, dated [date], 2013, confirming that the Applicant was prescribed sleeping medication following the incident.
9Prior to the hearing, the CICB received a detailed Psychiatric Consultation Report, dated [date], 2017. At page 2 of this Report, the Psychiatrist describes the Applicant’s symptoms as follows:
…in the past month or two after the traumatic event in 2013, she experienced panic attacks, however no longer has any panic attacks at the current time.
The patient endorsed that she continues to have a number of PTSD symptoms which revolve around replaying and repetition of disturbing unwanted memories and continues to have strong physical reactions when she does access her backyard. She experiences heart palpitations and sweating at times, especially when she feels that she is remembering the incident. She continues to exhibit negative cognition around the incident itself and has a number of fears and strong emotions towards the event and the fact that it has happened in her own backyard. She also endorsed that she does have what sounds like nightmares and night terrors that occur approximately 3 or 4 times per week, however, denied having any flashbacks.
10At page 6 of the Report, the Psychiatrist formally diagnoses the Applicant with major depressive disorder and generalized anxiety disorder with evidence of residual PTSD symptoms. He recommends medication as well as cognitive behavioural therapy to assist her with developing coping skills to deal with her residual PTSD symptoms.
ANALYSIS AND DECISION
11Mental or nervous shock is a legal term, rather than a medical diagnosis. The legal test for mental and nervous shock, summarized in Ulmer v. Weidmann, [2011] B.C.J. No. 158 and cited with approval by the Divisional Court in Wilson v. Criminal Injuries Compensation Board, 2015 ONSC 7876, is as follows:
(…) the following elements of the cause of action for nervous shock have been established:
a. the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;
b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;
c. the relevant proximity factors are the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);
d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;
e. it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;
f. a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.
12Having reviewed the circumstances of this case and the documentary evidence on file, the CICB finds that the Applicant meets the legal criteria for mental or nervous shock and accordingly finds her to be compensable under section 5(a) of the Act.
13The CICB finds that the proximity requirements of the test for mental or nervous shock have been met. The Applicant witnessed the fatal shooting of her close friend and neighbour in her own backyard. The closeness of the relationship criteria for mental and nervous shock is not solely restricted to immediate family members of the deceased. At page 5 of the Application, the Applicant states that she had been close friends with the Victim, who had been her upstairs neighbour, for approximately 14 years. The incident took place at a small outdoor party outside of their apartment complex. The Applicant observed the Offender shoot the Victim at close range with a rifle. The Applicant remained at the scene and telephoned 911 while another neighbour administered CPR to the Victim.
14As a result of this crime and her direct exposure to the violence inflicted on the Victim, the Applicant has experienced and continues to experience trauma symptoms, including anxiety, hypervigilance, nightmares, insomnia, body aches and pain, feelings of guilt and hopelessness among others, as identified in her Therapist’s report of [date], 2014, and more recently confirmed by a Psychiatrist in [date] 2017. The Psychiatric Report on file with the CICB confirms that the Applicant suffers from both major depressive disorder and generalized anxiety disorder with evidence of residual PTSD symptoms and clearly links these symptoms with the incident on [date], 2013. The Applicant continues to suffer from nightmares and to exhibit negative cognition, fears and strong emotions towards the incident.
15Having considered all of the foregoing, the CICB awards the Applicant compensation for pain and suffering in the amount of $7,000.00.
16In light of the recent recommendation from the Applicant’s Psychiatrist that she would benefit from cognitive behavioural therapy to help her deal with her residual PTSD symptoms, the CICB authorizes up to $1,200.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.
AWARD
17The CICB orders payment as follows:
Subsection 7(1)(a) Expenses (Section 14 Interim Award) $1,000.00
Subsection 7(1)(a) Future Pre-Authorized Expense (Future Counselling) $1,200.00
Subsection 7(1)(d) Pain and Suffering $7,000.00
TOTAL AWARD: $9,200.00
Less: Section 14 Award – already paid/authorized $1,000.00
Less: Preauthorized treatment costs – future counselling $1,200.00
TOTAL CURRENT AWARD $7,000.00
PAYMENT
18THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $7,000.00
DATED at Toronto this 2nd day of October, 2017
Maija Laitinen, Member