Re 1601-02118, 2017 ONCICB 40

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Leni Untinen, George Berrigan Date: February 22, 2017 Indexed as: (Re) 1601-02118

ORDER

Introduction

1The Applicant and his friends attended an event at a nightclub. The group moved outside to the parking lot as the party ended. The Applicant was shot in the arm and leg by unknown strangers. The Police attended the scene and took the Applicant’s statement.

2The Applicant indicated he was seeking medical expenses, treatment expenses travel to treatment, and compensation for pain and suffering.

Decision

3The CICB denied the expenses for the reasons set out below and compensates the Applicant the sum of $5,000.00 for pain and suffering.

Issues

[4] The issues before the CICB are whether:

• a crime of violence occurred, 5(a)
• what injury arose from it, 5(a)
• the expense claim is supported 7(1)(a)

Evidence

The Incident

5The Applicant and five male friends attended a nightclub event for three hours. He testified he was not drinking alcohol, however his friends were. The nightclub was full of patrons. Neither he nor his group had any arguments or altercations, while they were there. As the party ended at 3:00 a.m. they moved outside near their car in the parking lot. The parking lot was full of cars and people. He could hear music and he noticed some trouble across from the club. He thought that an altercation may have begun in the club and moved outside. The Applicant heard what he thought were firecrackers going off near the end of the parking lot. Everyone in the parking lot lay down on the ground. The Applicant’s leg was stinging. The Applicant heard the screeching tires of a car taking off and at least four more sounds that he now knew to be gunshots. He ran around the car for cover. He got down on the ground and his leg became numb.

6Police arrived at the scene, and noted that there was no evidence related to any suspects or persons of interests and area video surveillance was poor.

7The Applicant told police that he did not know who or why he was shot and indicated his belief that he was hit by a stray bullet.

[8] The Applicant was transported to the Hospital where the following injuries were noted:

• Two gunshot wounds, one through and through to his arm near his elbow, one to his upper left leg in the thigh region. The wounds were dressed and antibiotics were prescribed.
• Swelling of his left arm affected functioning.
• He had trouble getting comfortable, sitting and bending his left arm and leg.
• He experienced impaired balance, and difficulty walking and driving of his standard shift vehicle.
• He suffered immense pain and burning sensations. The leg pain was 9/10. The arm was less painful and he could move it slowly
• He was laid up for a couple of months and maneuvered with borrowed crutches and then a cane
• He followed up with his family doctor and he used over the counter medication to prevent infection.
• His leg still stings when touched.
• Emotionally he had sleep difficulties and nightmares.
• He experiences flashbacks, post-traumatic stress symptoms and difficulty concentrating.
• He attempts to attend the gym; he had no money for therapy
• The scarring bothers him

Analysis

9The fact that there has not been a conviction is not fatal to the Applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injuries.

10The CICB finds the Applicant, on the balance of probabilities, to be a victim of an assault, and therefore, a victim within the meaning of section 5(a) of the Act.

11In assessing compensation, the CICB considered the nature of the crime and the degree of the injuries to the Applicant’s left arm and leg, the CICB also considered the length of time recuperating and the requirement for crutches and a cane to assist with his mobility.

12The injuries healed without complication but the Applicant has noticeable scars. The leg wound still stings when touched and he experiences flashbacks, sleep difficulties and nightmares.

13In consideration of the foregoing the CICB awards the Applicant $5,000.00 for pain and suffering.

14The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence. Having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for medical and treatment expenses and travel to treatment.

Award

15The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $5,000.00

TOTAL AWARD $5,000.00

16The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

17THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $5,000.00