(Re) 1608-04645, 2017 ONCICB 77

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes
Date: March 28, 2017
Indexed as: (Re) 1608-04645

ORDER

Introduction

1In this case, the Applicant claimed he was assaulted during an attempted robbery at gunpoint while he was working as a cab driver.

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and, if so, the amount.

Evidence

Incident

3In his [date] 2016 submission to the CICB, the [age] year old Applicant wrote that on the evening of the incident, he was responding to a call for a cab at about 1:15 in the morning and when the three men going into his cab, he was immediately threatened with a gun and instructed to "give all his money" to the man with the gun. One of the men in the back seat grabbed the Applicant by his neck and arm and as the Applicant tried to escape by opening his door, he was punched seven to eight times in the head and neck. The Applicant yelled "Help! Police!" and the assailants ran away.

4The Applicant called his dispatcher on the radio and police and an ambulance came about ten minutes later. The Applicant was taken to hospital for treatment and he went to the police station the next day to give them a statement about this incident.

Police Report

5The Board received a report from [Name] Regional Police which supported the Applicant's claim as described above in this Order. Police responded with a minimum amount of information as their investigation was still ongoing and the suspects were still at large. Police noted the Applicant was punched four or five times and as a result, he had a cut on his ear which required stitches.

Injuries

6In his submission to the CICB, the Applicant wrote:

• I was taking painkillers to ease my pain after, but it didn't work properly. Then I saw my family doctor who prescribed me strong pain killers and some other medication for my frightened-ness/ trauma and loss of sleep. As a result of this I sustain serious injuries of physical, mental and psychological functions, which include:
  • Neck - Pain in my neck (for this I have to take pain killers almost regularly) restricts the movements – including rotation and uneasiness.
  • Shoulder - Pain, constant pain in both shoulders but right shoulder is much affected.
  • Knee - There is pain in the knee. Right knee got injured while they were hitting me and trying to snatch the money.
  • Back- backache.
  • Ear-Right ear torn out. Bleeding and got 7-8 stitches at hospital.
  • Presently I feel heaviness, constant irritation, uneasiness in the right side of head, ringing in right ear and also affected my hearing power. I visited the doctor (Specialist) for my ear problems on Jan 4th, 2016. Dr. Robert North (Otolaryngologist)
  • Vision- I feel little diminish of vision.
  • Sleep-Loss of sleep. Sometimes I need to take sleeping pills.
  • Fear- After this horrible incident I felt shocked and this traumatic fear made me always frightened while I am picking up the customer at night.
• Currently I am taking medication tor the pain management. This Taxi cab profession is the only source of my livelihood. I am the solely bread earner of my family as my wife is not working due to her illness. On the part of my work side, I have to take a pause during working time to refresh and ease myself every day. This incident and its after effects have caused:
  • Affected/reduced my earning and working capacity/hours. ii. Significant loss of income/ reduction of future earnings
  • Out of pocket expenses for medication and pain/ trauma comforting tools
  • Affected/Inability to perform household activities at all or to the extent to which I participated or performed in prior to the incident.
  • Nightmare and flashback of that traumatic incident
  • Apprehension
  • Nervousness
  • Impatience
  • Constant worriedness
  • This trauma affected my enjoyment and has caused loss of amenities of life
  • Inability to participate in recreation activities
  • Inabilities to participate in social activities.
  • Inability to perform attendant care tasks for myself and my family

Medical Reports

7The CICB received a report from the [Name] Civic Hospital which noted that on the night of the incident, the Applicant presented with a small laceration to his right ear lobe. Also, he complained of a headache and he had bruises on his neck. Doctors dressed his ear wound and gave him pain management advice.

8The CICB received a Medical Report from the Applicant's Family Doctor, Dr. [Name], who noted that he received medical attention at the hospital for the cut on his ear. Also, the Doctor noted that the Applicant suffered from mental stress as he gets anxious when he sees groups of people wanting to get into his taxi.

Expenses

9In his submission to the CICB, the Applicant wrote that he submitted $55.00 in taxi cab charges, for transportation.

10The Applicant claimed that his income was reduced after the incident as he found it difficult to work long hours. However, he did not provide a clear definition of the extent of his income loss – either the time period of the loss or the amount of the loss being claimed.

11The Applicant sent his CRA Tax Returns from 2011 to 2015 to support his claim of lost income. A review showed that the Applicant's average monthly income was steadily declining before the incident date. Also, the Applicant's claim was not supported by a medical report to show the period of time when his emotional injuries were affecting his ability to work.

12In the year before the incident, in 2013, the Applicant had an average income of $1,273.32 per month and then in 2014 and 2015, his average income declined to $1,112.68 per month for a loss of $160.64 per month. Assuming the Applicant's period of disability ran from the date of the incident until the date of his submission to the CICB ([date] 2014 to [date] 2016), the Applicant's actual loss of income over that time period was 23 months X $160.64 = $3,694.72.

Analysis and Decision

13The 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 injury or death.

14The CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of assault, and therefore, a victim within the meaning of section 5(a) of the Act.

15In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was threatened with a gun, grabbed and punched in the head and neck. As a result, he received a cut ear lobe and pain in his neck. On an emotional level, the after-effect of this incident caused the Applicant to be nervous when he had a group of people to pick up at night.

16The Applicant's claim was supported with reports from Police, a Hospital and his Doctor. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $4,000.00.

17With respect to the Applicant's claim for taxi-cab expenses, it is the CICB's practice to only consider travel to treatment costs when an applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of his city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometres each way for his treatment, these expenses are denied.

18The CICB has considered the Applicant's income loss claim which was described above. Considering the evidence provided by the Applicant, the CICB has determined his income loss from the date of the incident, to the date of his submission to the Board in [date], 2016. Accordingly, the CICB now awards $3,694.72 for income loss as noted above.

Award

19The CICB orders payment as follows:

Section 7(1)(b) Income Loss $3,694.72

Section 7(1)(d) Pain and Suffering $4,000.00

TOTAL AWARD $ 7,694.72

20The 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

21THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $7,694.72