CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Maija Laitinen
Indexed as: (Re) 1611-00556
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”) as a result of an incident that occurred on [date], 2015 when she witnessed the homicide of the Victim, who was struck with an arrow in the chest and collapsed on the Applicant’s front lawn. The Applicant attended to the Victim as a first responder. The incident was reported to the Police, and the Offender, was convicted of second degree murder.
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. The Applicant has also made a claim for counselling expenses. On March 13, 2017, the CICB issued an Interim Decision under section 14 of the Act authorizing $1,800.00 in interim funding for therapy expenses to be used within 18 months.
DECISION
3The CICB approves the claim and awards the Applicant the sum of $5,000.00 for the reasons set out below.
ISSUES
4There is no question in this case that the deceased Victim 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: Media Reports, Police Report, including the Crown brief synopsis, dated October 20, 2015, a Medical Report from the Applicant’s Family Physician, dated September 5, 2017, and a Therapy Report from a Social Worker, dated July 31, 2017.
6At page 4 of her Application, the Applicant states that the deceased Victim was a stranger to her. On the morning of [date], 2015, a neighbour knocked on her door and alerted her that an injured man was lying on her lawn with an arrow in his side. The Applicant called 911 and attended to the Victim. She placed a blanket over him and stayed with him and talked to him “while he went in and out of consciousness” until the ambulance arrived. The Police information confirms that the Victim was walking down the street and at approximately 7:00 am was struck with an arrow in the chest. The Victim was transported to Hospital by ambulance where he succumbed to his injuries. The arrow was later determined to be a “bolt” from a crossbow.
7The Media Reports around the time of the incident confirm that the Applicant saw the Victim on the ground and called for an ambulance. She covered him to keep him warm and sat with him until emergency crews arrived.
8The Offender, who was bound by a weapons prohibition order at the time of the incident, was convicted of second degree murder on [date], 2017. He was sentenced to imprisonment for life with no eligibility for parole for 14 years.
9The Medical Report on file with the CICB was completed by the Applicant’s family doctor, who has known the Applicant for 22 years. At page one, the Report states that the Applicant suffered psychological injuries as a result of witnessing the crime. She has experienced “flashbacks, tearfulness and impaired concentration”. Her Family Doctor prescribed SSRI medication and recommended individual counselling. At page 2, the Family Doctor states that, with treatment, the Applicant’s “cognitive status should return to premorbid state”.
10The Therapy Report on file states that the Applicant suffers from flashbacks, hypervigilance and becomes tearful when talking about the incident. She has difficulty going out of the house during dark or dusk. Given that the incident occurred outside of her home, the Applicant’s treating Social Worker observes that the Applicant’s home was “no longer a place of refuge where she could recover and grieve” and her relationships with neighbours have been strained. Both the Applicant’s Social Worker and her Family Doctor note that the Applicant’s mother passed away three months prior to this incident and that the Applicant was still experiencing some grief response in relation to the loss of her mother.
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] BCJ 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. The CICB finds that the proximity requirements of the test for mental or nervous shock have been met. The incident occurred in the front yard of the Applicant’s residence at approximately 7:00 am. The Applicant came to the aid of the Victim as a neighbour and a first responder and suffered a recognizable psychiatric illness requiring medication and counselling as a result of her altruistic act.
13As 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 flashbacks, hypervigilance, tearfulness and impaired concentration among others, as identified in the reports from her Social Worker and her Family Doctor. Having considered all of the foregoing, the CICB awards the Applicant compensation for pain and suffering in the amount of $5,000.00. In making this award, the CICB was mindful of the random nature of the crime and the fact that the incident occurred just outside the Applicant’s own home.
AWARD
14The CICB orders payment as follows:
Subsection 7(1)(a) Expenses (Section 14 Award) $1,800.00
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $5,800.00
Less: Section 14 Award – already paid/authorized $1,800.00
TOTAL CURRENT AWARD $5,000.00
15If, as a direct result of this crime, the Applicant requires additional counselling and the cost of that counselling is not covered by other sources, the CICB may, pursuant to the provisions of section 25 of the Act, consider varying this Order to include a claim for additional counselling expenses. The Applicant must obtain authorization from the CICB prior to incurring any such expense. The Applicant may contact the CICB to determine what information is required in order to obtain authorization.
PAYMENT
16THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto this 27th day of November, 2017
Maija Laitinen, Member