CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Christie Jefferson
Indexed as: (Re) 1211-90861
ORDER
Introduction
1The Applicant is claiming for mental and nervous shock (MNS) in relation to an attempt on her son’s life on [date], 2012. The victim was compensated at an open oral hearing on November 15, 2016 hearing for attempt murder after a Police Witness testified that the victim was unarmed when he was shot at close quarters with a handgun. The Police Witness also indicated that the victim and Offender were casual acquaintances, and that the victim was not the person who had an ongoing dispute with the shooter. The Applicant’s son testified that after he was shot by the Offender he made it home, as the family residence was close by. His mother was just leaving and came to his aid. The Applicant indicates in her claim that she believed the victim might die from his injuries, and decided to take him to the hospital in her truck as an ambulance would take too long. After realizing that there were three young children in her vehicle who might witness the death of her son, she arranged for her daughter-in-law to drive the victim to the hospital. When the Applicant attended hospital she was told the bullet was near his heart and they had a tube draining his chest due to his lung collapsing. Fortunately, the victim survived but still has the bullet near his heart as it is too dangerous to remove it. The Offender was not caught for a year and when arrested was charged with attempt murder and weapons offences. He pled guilty to aggravated assault.
2The Applicant indicates in her claim that she was terrified for her son, herself and the other children for the entire year the Offender was at large, fearing he would come to their residence and kill them. She had nightmares every night and was hyper vigilant such that she drove her children everywhere, including the two blocks to the school. She was easily startled, thinking a gun had been fired when the phone rang. She felt like a prisoner in her own house. The Applicant informed staff that she was so involved in caring for her injured son and protecting the family that she did not seek help for herself such that there are no medical reports available to the CICB as to the impact of the incident on the Applicant.
Issues
3As the Offender has been convicted of a serious crime of violence against the victim, the Board is able to consider whether the Applicant meets the criteria for MNS compensation as outlined below.
Analysis and Decision
4The term “mental or nervous shock” originated in common law and, over the years, the standard to be applied has been developed in cases before the Courts. Hence, the phrase ‘mental or nervous shock’ is a legal term, and not a medical diagnosis. The criteria established by the Courts and, by extension, to be applied by the CICB, when assessing a claim for ‘mental or nervous shock’ is as follows:
Whether the individual witnessed the violent occurrence or came upon the scene of the violent occurrence in its immediate aftermath;
The degree of violence involved in the occurrence;
The closeness of the relationship which existed between the individual and the person(s) involved;
Whether the individual sustained a significant/recognized psychological/psychiatric injury; and,
Whether the significant psychological/psychiatric injury was induced in direct result of the shock of witnessing or coming upon the immediate scene of the crime.
5All five criteria must be met in order for there to be a finding that the injury known as mental or nervous shock has been sustained.
6The CICB has considered the Applicant’s claim for MNS in relation to these five legal criteria and finds that she meets all five criteria. She came upon the scene of the attempt on her 18 year old son’s life after he was shot at close range with a hand gun in the chest. She came to his aid, and took action to save his life, including arranging for a ride to the hospital as his wounds were so serious she feared he would not be able to wait for an ambulance. While there is no medical evidence before the CICB as to the impact of witnessing her son critically shot, the CICB accepts that this is due to the Applicant putting her own needs aside to care for him during and after hospitalization. Also, the ordeal did not end with the victim’s survival as the Offender was not caught for a year, leaving the Applicant in a vigilant and fearful state. She describes in her claim symptoms that are clearly trauma related including hyper vigilance, a startle response to any loud or sudden sound, ongoing intense fear, nightmares and sleep issues. These trauma symptoms are consistent with mental and nervous shock.
7The CICB is awarding $6,000.00 for pain and suffering as a result of MNS after coming upon the scene of the near fatal shooting of her young son near the family home. The CICB considered the terrifying nature of the incident, that the victim was shot in the chest point blank, that the Applicant legitimately thought her son might not survive, and that the trauma symptoms she experienced were prolonged by the Offender being at large for a year.
8The 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 invoices and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the time 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
9The 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 $8,400.00
Less: Preauthorized treatment costs $2,400.00
TOTAL CURRENT AWARD $6,000.00
10The 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
11THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $6,000.00
DATED at Toronto this 23rd day of January, 2017.
Christie Jefferson, Member