(Re) 1609-04717, 2017 ONCICB 78

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: March 28, 2017 Indexed as: (Re) 1609-04717

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate her for injuries resulting from a crime of violence which occurred on [date], 2015 in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). She is seeking compensation for pain and suffering incurred from one act of attempted murder perpetrated by the deceased, (the Alleged Offender), her ex-boyfriend. The applicant is also claiming loss of income/wages, medical, treatment, travel to treatment; ambulance, device rental and future counselling. The Alleged Offender succumbed to his self-inflicted injuries on the early morning of [date], 2015.

Decision

2The CICB awards the Applicant $15,000.00 for pain and suffering and $3,600.00 for future counselling.

Issues

• The applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence, but also that as a result of this crime of violence, she suffered an injury pursuant to section 5 (a) of the Act;

• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount; and

• The CICB must determine whether the claim for loss of income/wages, medical, treatment, travel to treatment; ambulance, device rental and future counselling.

Evidence

3The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the Police Services’ correspondences to the CICB.

4The Applicant and the Alleged Offender had been dating for approximately eight months and recently the Applicant discontinued the relationship on advice of her parents.

5The Applicant had an interview at [Name] on the afternoon of [date], 2015. The Applicant’s mother transported her to her interview and picked her up after the interview. When the Applicant’s mother returned to pick up the Applicant, she observed the Applicant in the parking lot crying. At this time the Applicant told her mother that she received news that one of her friends had hung himself at his mother's residence. The Applicant was very distraught and her mother drove her home. The Applicant and her mother had a conversation about the incident and the mother decided that the applicant should stay home for the rest of the day.

6The Applicant’s mother and father went out for supper at approximately 4:30 p.m. that evening. Sometime later, the Applicant texted her mother and asked her to bring her a submarine sandwich upon their return. The Applicant’s mother and father returned home at approximately 6:00 p.m. and found that the Applicant was not at home.

7On the same day, the Applicant met the Alleged Offender at a local school sometime after 4:30 p.m. as he said he needed to speak to her about the friend that had harmed himself as he needed comfort. The Applicant having recently broken off with the Alleged Offender felt it would be kind to him.

8The Applicant met the Alleged Offender at the pre-arranged location where he forced her into his vehicle at knife point. Once the Applicant was in the Alleged Offender’s vehicle, they began to argue. The Alleged Offender then drove off in a reckless manner and into oncoming traffic at a very high rate of speed. The Alleged Offender drove the Applicant about an hour out of town and very much against her will. During the drive, the Alleged Offender kept threatening that he was going to kill the Applicant and himself in an accident. However, the Applicant was able to convince the Alleged Offender not to and they both returned.

9Once back in town, the Alleged Offender drove to a gas station and filled up the car with gas and drove off without paying. He did not go in to pay for the gas as he did not want the Applicant to be left alone. The Alleged Offender then drove past the turn off to the Applicant’s home and continued onto another street. The Applicant and the Alleged Offender continued to argue and again the Alleged Offender said to the Applicant that he was going to kill her and himself. The Alleged Offender then drove into an oncoming pickup truck, causing a serious accident.

10Immediately after the collision, the Applicant was screaming for help and trying to climb out of the passenger’s window of the Alleged Offender’s vehicle. However, the Alleged Offender began to stab the Applicant with a knife multiple times in the chest, face, abdomen, neck, back, arms, thighs and buttocks. The Alleged Offender then turned the knife on himself, stabbing himself multiple times.

11A witness came to help the Applicant and pulled her out of the vehicle, placing her on the side of the road. The witness also saw the Alleged Offender hurting himself and left the Applicant on the side of the roadway and attempted to talk to him. The Alleged Offender then came out of the vehicle pointing the knife towards the witnesses and then tackled the Applicant, pushing her into the ditch where he continued to hold her down while stabbing her repeatedly again.

12Eventually, some of the witnesses jumped the Alleged Offender and stopped him from continuing his attempted to kill the Applicant. The Alleged Offender was then transported to the Hospital where he succumbed to his injuries on [date], 2015.

13The Applicant was also removed by paramedics to hospital where she was admitted and was discharged on [date], 2015.

14The CICB was in receipt of multiple Medical Reports from Hospital which noted that the Applicant presented with the following injuries:

• Multiple traumas;

• Multiple stab wounds to chest, arms, both breasts, and abdomen; Clavicle fracture on right;

• Facial and Orbital fractures; Zygomatic fracture on the right; Gastric laceration;

• Colonel laceration; Cast on left hand

• Diaphragmatic laceration; Required bilateral chest tube; and

• Surgery to repair two flexor tendon injuries on left hand.

15The following surgical intervention was performed by [Doctors] at the Hospital on [date], 2015;

• RIGHT TUBE THORACOSTOMY;

• LAPAROTOMY FOR TRAUMA;

• REPAIR GASTRIC LACERATION;

• REPAIR DIAPHRAGMATIC LACERATION;

• REPAIR TRANSVERSE COLON LACERATION;

• REPAIR SPLENOCOLIC LIGAMENT LACERATION;

• REPAIR THREE LACERATIONS AT BASE OF POSTERIOR NECK;

• REPAIR IN LAYERS LARGE LACERATIONS RIGHT BREAST;

• REPAIR RIGHT ARM LACERATION;

• REPAIR LACERATIONS LEFT SHOULDER, LACERATIONS TORSO AND EXTREMITIES; AND

• REPAIR LACERATION RIGHT LOWER LIMB IN LAYERS; AND

• REPAIR LIVER LACERATION.

16On [date], 2015 the applicant was transferred where she continued to receive hospital care and monitoring of her injuries.

17The CICB was in receipt of multiple Medical Reports from [Hospital], updating the Applicant’s medical progress while she was still a patient at the Hospital, along with a surgical checklist.

18The CICB was also in receipt of a Medical Report from the Applicant’s Family Physician [Name], who noted that the Applicant presented to his office with facial bruising and multiple stab wounds after an assault and a rollover accident. Dr. [Name] noted that the Applicant was first taken to Hospital and then transferred elsewhere. The doctor noted that the Applicant would require extensive cosmetic surgery in the future for the obvious scarring and poorly healed lacerations and ongoing psychotherapy for PTSD.

19The CICB was in receipt of a Therapy Report from social worker [Name] who noted that he saw the Applicant only twice and that she would require at least 20-24 more sessions of therapy. He noted that the Applicant suffered from disassociation, nightmares, was hyper-vigilant and exhibited all the signs of PTSD.

Injuries

Physical

20The Applicant noted the following injuries to the CICB in her Application:

• Approximately 35 stab wounds, to the face, back, arms, chest, thighs, buttocks, neck, hands and abdomen;

• A stab wound to the par spinal soft tissues at the TJ level of the spine;

• Psychological injuries;

• A clavicle fracture;

• Facial and orbital bone fracture;

• Zygomatic fracture on right side;

• Gastric laceration;

• Colonic laceration;

• diaphragmatic laceration;

• Left hand flexor tendon injury;

• Chipped teeth;

• Nerve damage; and

• Scars.

21The Applicant noted she was rushed to the Hospital via ambulance were she underwent a series of surgeries, wound care, plastic surgeries, rehabilitation , intubation and a left hum pneumothorax.

22Upon being released from the Hospital, the Applicant began receiving home care. She also developed a blood clot and infection in her thigh wounds. The Applicant continues to need counseling and pain medications.

Psychological/Emotional

23The Applicant noted that she has received counselling and continues to need such.

24The CICB was also in receipt of news clipping in relation to the incident.

Analysis

25The fact that there has not been a conviction does not mean a denial of this 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. The CICB must determine whether the Applicant was the victim of a crime of violence when the Alleged Offender attempted to kill her.

26After careful consideration of the evidence, including the documentary evidence provided by the [Name] Police Service, the statements of the independent witnesses on file and the medical information on file, the CICB is persuaded that the applicant was assaulted by the Alleged Offender. In this regard, the CICB relied on the Applicant’s Application, the Police information and statements from witnesses and the Medical Reports from [Name] District Hospital and from [Hospital], which showed that the incident involved a vicious attack on the Applicant.

27The CICB does find that a crime of violence has occurred and finds the Applicant, on a balance of probabilities, to be a victim of a crime of attempted murder, and therefore, a victim within the meaning of section 5(a) of the Act.

28The CICB accepts that the Applicant suffered serious physical and psychological injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accepts that the Alleged Offender’s crime was the contributing factors for the Applicant’s ongoing psychological injuries.

29Information on file indicates that the Applicant received insurance benefits in the amount of $24,319.34 from the insurance company in respect of the motor vehicle accident. The CICB is required to take this into consideration when it assesses compensation in this matter pursuant to section 17(3) of the Act which states:

In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

30Having considered all of the evidence on file, including the egregious and serious nature of the violence and the extent of the Applicant’s injuries, the CICB does not think it would be appropriate to reduce the amount of compensation it would otherwise award in a case of this nature, given the amount of compensation received from the insurance company.

31In assessing compensation for pain and suffering, the CICB was mindful of the circumstances of this incident and emotional injuries suffered by the applicant and considered the following aggravating facts: the CICB has considered the sudden and unprovoked nature of the attack, that the Alleged Offender first tried to kill the Applicant by way of a motor vehicle accident and when he was not successful, he attempted to stab her to death with a knife, the use of a weapon in the commission of the crime, the severity of the injuries, the Medical Records and reports on file and the type of treatment required and the period of hospitalization, having consideration to all these factors, the CICB orders an award of $15,000.00.

32With respect to the Applicant’s father’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records and employer’s report) in order to verify employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed and to confirm the period of disability. In the absence of any information from the employer to show that they were employed at the time of the incident, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant’s father has failed to establish his claim for income loss and the claim in that regard is hereby denied.

33Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $3,600.00 (exclusive of 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. 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 should 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 will be made directly to the treatment provider every month upon submission of an invoice and the required verification from the Applicant.

Award

34The CICB orders payment as follows:

Section 7(1) (a) Future Therapy $ 3,600.00

Section 7(1) (d) Pain and Suffering $15,000.00

TOTAL AWARD (AND COSTS) $18,600.00

Less: Preauthorized treatment costs $ 3,600.00

TOTAL CURRENT AWARD $15,000.00

35The 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

36THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $15,000.00