CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1604-03048
ORDER
Introduction
1In this case, the Applicant heard four assailants attacking her son (the Victim) in the basement of her house. She witnessed the four assailants (including the Offender) attacking her son so she intervened to rescue and save him from this attack.
2The Applicant is required to prove, on a balance of probabilities, and the CICB is required to determine whether the Applicant was a victim of a crime of violence per section 5(a) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24 (the “Act”); what injury, if any, resulted from it; and whether there are any relevant circumstances that may affect whether or not compensation should be awarded and if so, the amount.
3Under the Act, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim themselves where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock, which is a legal term and not a medical diagnosis.
4The 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: 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;
proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;
the relevant proximity factors are: the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct),
the locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and
the temporal proximity (the relation between the time of the event and the
onset of the psychiatric illness);
the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;
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;
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.
5To be compensable, the Applicant must establish that she suffered psychiatric or psychological injury, which rises to the level of a recognizable psychiatric illness, induced by the shock resulting from the violent occurrence. Problems in dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are not compensable.
Evidence
6In her Victim Impact Statement to the Court, the Applicant wrote that on the night of the attack, she woke after 2:00 a.m. with cries of help from her son. She ran downstairs to the basement and found four disguised people attacking her son. The Applicant immediately began trying to get the assailants off her son while calling out to her husband for help. Two assailants ran past her and up the stairs from the basement. The Applicant struggled with these two assailants while they went up the stairs and a third assailant followed them and then the Applicant’s husband followed. They all struggled in the back yard until the fence fell over and the assailants fled. The Applicant ran back into the house to attend to her screaming son on the staircase, who was being attacked by the fourth assailant who was going at him with a knife.
7The Applicant’s husband came back inside to help and after the fourth assailant bit him, he put her into a choke hold and wrestled her outside until police arrived. The Applicant’s son was taken to the hospital and although there was some concern for his well-being, the Applicant’s husband refused to leave his house. When the Applicant went to the hospital to check on her son’s condition, although she found that she had blood on her legs, she did not find that she was physically injured during this incident.
Police Report
8The CICB received a report from the Police Service in support of the Applicant’s claim. About 2:30 a.m. on the date of the incident, the Applicant and her husband were woken by the sound of their son in their basement, screaming for help. The parents found four masked assailants, who had broken into the house and were attacking their son. As the parents responded, the assailants left and the Applicant’s husband gave chase into the backyard where the assailants ran away. He returned to the house to find one of the assailants attacking his son with a knife. The father tackled the assailant and held her down until police arrived.
9Police met the family and the remaining assailant at the house and the Applicant’s son was transported to hospital with “non-life threatening slash wounds to his abdomen”. As a result of their investigation, Police found that a female friend of the Applicant’s son contacted him that evening. She left before the assailants broke in and Police suspect that the Applicant’s son may have been a target for the assailants – one of whom is still being sought by Police. Police charged the Offender with assault with a weapon, break and enter to commit an indictable offence, wearing a disguise with intent to commit an indictable offence and two other charges.
10On [date], 2016, the Offender pled guilty to the assault and break and enter charges. She was sentenced to 35 days of pre-sentence custody plus six years in jail with a no-contact order for the Applicant and her family. The Offender’s DNA was added to the national offenders databank and she was prohibited from possessing weapons for ten years.
Injuries
11In her submission to the CICB, the Applicant wrote that since the incident, she has been seeing a psychologist to help her deal with the emotional aftermath of the incident.
12In her Victim Impact Statement, the Applicant wrote that as a result of this incident, she suffered from flashbacks on a daily basis. She suffers from crying spells and deep sadness because she thought her son was going to be killed that night. She does not feel safe in her own home, she lives in fear that she or her family could be attacked in the future and she fears for the safety of other family members who visit her home now.
Medical Reports
13The CICB received a report, dated [date] 2016, from a Certified Psychologist, Dr. [Name], who saw the Applicant for nine sessions between [date] 2015 and [date] 2016. The Doctor confirmed the incident as described by the Applicant. The Doctor wrote that when the Applicant went downstairs, she found the four assailants were beating, choking and attacking her son with a knife. In dealing with this incident, initially, the Applicant was unable to speak about it without becoming tearful, anxious and afraid. Over time, the Applicant managed to communicate more clearly about this incident which still has a deep emotional impact on her. The Applicant suffers from ongoing distress and issues related to this incident, including frequent recurring memories, hyper-vigilance, heightened startle response, fearfulness and intense negative emotions which are persistent on a daily basis. Despite the improvement of the Applicant’s conditions, she still has a PTSD diagnosis.
14The Applicant continues to suffer from various triggers including letting her dog out at night, fear of retribution since only one of the four assailants was found/arrested and anxiety when she sees people dressed similar to the assailants. The Applicant suffers from sleep disturbances and irritability and she self-isolates to avoid having to talk about the incident.
Analysis and Decision
15Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Victim is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault with a weapon.
16The fact that there has not been a conviction of a crime of violence against the Applicant is not fatal to her 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.
17As noted above, the CICB is being asked to determine whether the Applicant is compensable for the alleged mental and nervous shock (MNS) she suffered. From the available evidence in this case, it is clear to the CICB that the Applicant has met all of the MNS proximity factors and that she suffered from significant emotional trauma, including a PTSD diagnosis by a Certified Psychologist. Considering this, the CICB finds, on a balance of probabilities, that the Applicant is a victim within the meaning of section 5(a) of the Act as a result of this incident.
18In 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 subjected to being involved in a home invasion attack on her son in the middle of the night. As a result, the Applicant took part in nine sessions of counselling with a Psychologist, who found that the Applicant suffered from ongoing PTSD, which features feelings of stress, recurring memories and flashbacks, hyper-vigilance, heightened startle response, fearfulness, sleeplessness and intense negative emotions which are persistent on a daily basis.
19The Applicant’s claim was supported with reports from Police and a Psychologist. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $6,000.00.
20Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (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. The CICB may also consider therapy expenses that were incurred between the date that the Applicant submitted her final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $2,400.00 amount described above.
Award
21The CICB orders payment as follows:
Section 7(1)(a) Future Pre-Authorized Expense $2,400.00
Section 7(1)(d) Pain and Suffering $6,000.00
TOTAL AWARD (AND COSTS) $8,400.00
Less: Preauthorized treatment costs $2,400.00
TOTAL CURRENT AWARD $6,000.00
22The 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
23THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $6,000.00
DATED at Toronto this 16th day of January, 2017
_____________________________
Jo-Anne Hughes, Member