CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: David Fine Date: November 23, 2018 Indexed as: (Re) 1609-04976
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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking compensation for pain and suffering as a result of an assault by means of a motor vehicle on [date], 2014 and a physical assault on [date], 2014. The [date], 2014 incident was not reported to the police. The [date], 2014 incident was reported to the police and resulted in a conviction for assault causing bodily harm.
Decision
2The CICB denies the claim with respect to the incident on [date], 2014 but approves the claim with respect to the incident on [date], 2014 and awards the Applicant $6,000.00 for pain and suffering for the reasons set out below.
Issues
3The absence of a conviction regarding the incident of [date], 2014 does not mean that the CICB is precluded from making an order of compensation. Subsection 16 (1) of the CVCA 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 Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the CVCA.
4With respect to the incident on [date], 2014 the conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA. Given that there was a conviction in connection with that incident, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the CVCA.
Hearing
5The Applicant provided oral testimony by telephone.
Documentary Evidence
6The CICB received the following documents with respect to the claim: Police Occurrence Summary for the [date], 2014 incident, [place] Police Arrest Report for the [date], 2014 incident, [name] Hospital records, [name] Memorial Hospital records, Ambulance Call report and the Application form dated September 13, 2016.
Evidence
7The Applicant testified that in [month] 2014 he lived with his uncle in [city]. In the early afternoon on [date], 2014 he accompanied his uncle to a hunt camp near [city] about a half hour from their home.
8The owner of the camp and an individual named [name] were also in attendance. No one did any hunting, instead they spent the day drinking and listening to music. Sometime in the evening an altercation arose between the owner of the camp and the Applicant’s uncle as a result of which his uncle was asked to leave. The Applicant said he had about six drinks during the time he was at the camp and his uncle had a lot more. They were drinking different kinds of liquor. The Applicant decided to leave with his uncle, [name] stayed.
9On the way back to [city] his uncle made a wrong turn and started yelling at the Applicant and was getting abusive. The Applicant decided the best thing for him was to get out of the vehicle. His uncle pulled over to the side of the road and let the Applicant out.
10The Applicant started to walk on the shoulder and got on his cell phone to call his mother to pick him up. He had walked about five to ten feet when he was struck in the back by his uncle’s vehicle and was knocked over. The vehicle then ran over his left foot. He estimated his uncle was travelling about twenty to thirty kilometres an hour when he was struck. He believes his uncle intentionally tried to run him over.
11When he was asked why his uncle would want to run him over the Applicant said it was possibly because of the argument they had just had. The Applicant could not think of any other reason for such conduct
12The Applicant’s uncle stopped the vehicle ahead of where the Applicant lay on the shoulder. He got out of the vehicle and came back to the Applicant and said he was sorry. His uncle helped the Applicant back in to passenger seat and started to drive again. The Applicant said he was in and out of consciousness.
13The next thing that Applicant recalls is his uncle’s vehicle stopped on a cement median at a gas station. His mother was on his cell phone during the entire incident and he believes she called an ambulance.
14The Applicant stated that his uncle knew he was in trouble and asked him to make up a story about what happened.
15According to the Ambulance Call report the Applicant advised that he had been walking on the roadway with a canoe when an SUV struck the canoe knocking him over and then running over his left foot. The SUV left the scene. The Applicant called his uncle to pick him up and that is how he ended up in his uncle’s vehicle.
16The Arrest Report relating to the [date], 2014 incident indicates the police received a call they there were injured people at the gas station. When the police attended they observed that the Applicant’s uncle appeared to be intoxicated and they placed him under arrest. Both the Applicant and his uncle indicated they had injured legs and an ambulance was arranged to take both of them to the hospital before the uncle was taken to the police station. It turned out his uncle did break one of his legs. The Applicant did not know if that happened at the hunt camp or in the vehicle accident.
17The police subsequently conducted breathalyzer tests on the uncle which indicated his blood-alcohol level was considerably over the legal limit. The uncle was charged with impaired driving offences and driving while disqualified. Although it is indicated the police spoke to the Applicant, there is no mention the Arrest Report of the SUV or that the uncle intentionally tried to run him over with his vehicle.
18There are two histories in the hospital emergency records about how the Applicant suffered his injuries. The earlier one recites the story about being struck by an SUV which was the one in the Ambulance Call report. In a later note, the Applicant said he was unsure as to how the incident occurred.
19The Applicant testified that he made up the story about the SUV and the canoe to protect his uncle and did not tell the police about the deliberate conduct by his uncle with vehicle for the same reason. He did say that he told the true story to the police about the vehicle incident after he was assaulted by his uncle on [date], 2014.
20The Applicant initially said he had a fractured left ankle. When it was pointed out to him that the hospital record indicates there was no fracture he said he was told by a doctor that he had crushed ligaments in his left foot. The Soldiers Memorial Hospital records indicate the Applicant complained of ankle pain and he had minor cuts to his hands. The diagnosis in the records was that the Applicant suffered a sprain.
21The Applicant said he was on crutches for a month but after that he was able bear weight on his left foot. He says he still has trouble standing for any length of time.
22He said he also suffered a minor injury to his tailbone which still troubles him from time to time.
23With respect to emotional injuries the Applicant stated that he became depressed and was still depressed at the time of the [date], 2014 assault.
24The Applicant has not sought any treatment following the [date], 2014 incident for the physical and emotional injuries he alleges he suffered in that incident.
25On [date], 2014 in the evening the Applicant was at home with his uncle. They each were accompanied by women and there were two other people present. They were downstairs in the home and were all drinking steadily. At some point during the evening the Applicant’s uncle received news that a friend had passed away. He started to drink more heavily.
26At some point the Applicant and one of the women decided to go upstairs. After a short time the Applicant heard a lot of noise and profanity. He then heard what sounded like the breaking of glass. He went downstairs to quiet things down and saw that his uncle had smashed a glass table.
27The Applicant tried to settle his uncle down. His uncle slapped the Applicant in the face. The Applicant hit him back and pushed his uncle into a chair. He told his uncle that things were getting out of hand and told him to stop drinking.
28All of a sudden the woman who accompanied his uncle jumped on the Applicant’s back and started to choke him. She pushed him to the ground. His uncle got out of the chair and started to kick the Applicant in the face and head with a cast boot which he still had on from the [date], 2014 incident. The Applicant was kicked this way about ten or twelve times. Part way through the kicking the woman got on top of the Applicant and held his arms down. When he was finished kicking the Applicant his uncle punched the Applicant the left eye with a heavy ring which was on his finger. The Applicant was eventually able to get away and went to a neighbour’s to call the police and an ambulance.
29The Applicant was first taken to [name] Hospital in [city] and the transferred to [hospital] where he had surgery for a left orbital foot fracture. During the surgery a titanium implant was inserted into his face. The Applicant was in hospital for four days.
30The Applicant stated that at present he has blurry vision. His left eye agitates him every day. He gets headaches about four or five times a week. He has pain in his face when it is cold. He has a small scar on his face which now looks like wrinkle and is about two inches long. In the period shortly after the assault he had difficulty breathing and could not blow his nose.
31Emotionally the Applicant says he is still depressed, his self- esteem is low and he is angry. He says he has frequent nightmares
32Since his release from hospital the Applicant has not sought any treatment or consulted anyone for his ongoing problems. He said he did go back to the surgeon who told him everything looked good and healing would take time.
Analysis and Decision
33To be compensable under section 5(a) of the Act, the Applicant must prove on a balance of probabilities that there was a crime of violence and that he was injured as a result.
34I accept that the Applicant was struck by his uncle’s vehicle on [date], 2014 and that he made up a story about an SUV. I do not agree with the Applicant’s position that his uncle deliberately tried to run him over for the following reasons:
- The Applicant’s uncle was very intoxicated at the time of the incident and in the absence of independent evidence there is no way to determine whether the conduct was deliberate or inadvertent.
- The Applicant’s description of the [date], 2014 incident is not credible. He has told three different stories about what happened. First, he told the ambulance staff about being hit by an SUV. Later, he told hospital staff that he was unsure how the incident occurred. Finally, he raised the issue of deliberate conduct in his application. He also exaggerated his injuries from the [date], 2014 incident.
- Although the Applicant says he told the police about the deliberate conduct of his uncle on [date], 2014 after the physical assaults on [date], 2014 there is no mention of it in the Police Occurrence summary relating to that incident and there were never any charges for an assault by a motor vehicle.
- The Applicant appeared to be just speculating as to a motive for running him down.
- If the Applicant truly believed that his uncle tried to deliberately hit him with the vehicle resulting in a serious injury it is not plausible he would lie to protect the person who had just tried to run him down and keep the truth from the police.
- It is more likely, however, that the Applicant would try to help his uncle by making up a story if he felt the conduct of his uncle was inadvertent and the Applicant suffered minor injuries which appears to be the case.
35On a balance of probabilities, I find that the conduct of the Applicant’s uncle when his vehicle hit the Applicant on [date], 2014 was inadvertent. To be compensable under the 5(a) of the CVCA, if a motor vehicle is used or operated, the Applicant must be injured as a result of an assault. As I have determined there was no intent with respect to the assault in this case, the incident does not constitute a crime of violence and therefore the Applicant is not compensable under the CVCA.
36Accordingly, the claim with respect to the [date], 2014 incident is denied.
37With respect to the incident which occurred on [date], 2014, I find on the balance of probabilities that the Applicant was a victim of a crime of violence pursuant to section 5(a) of the CVCA and suffered injuries as a result.
38The Applicant suffered a serious fracture to his face which required surgery. I accept that he has continuing intermittent issues but there is no medical evidence indicating there is a serious condition at present.
39I award the Applicant $6,000 for pain and suffering. In doing so, I have taken into account the seriousness of the injuries at the outset and that the assault was committed by his uncle.
40I have carefully considered all the documents in the file and the evidence on the hearing relating to the incidents and the Applicant’s injuries. The CICB is mindful that awards are not intended to make an Applicant economically whole and are not paid by the wrongdoer as the case would be if the Applicant received compensation through a civil action. The CICB also reviews other similar cases to determine a reasonable amount of compensation and to maintain consistency across the CICB.
Award
41The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $6,000.00
TOTAL AWARD $6,000.00
Payment
42The CICB orders that the following sums be paid forthwith to:
The Applicant $6,000.00
DATED at Toronto this 23rd day of November, 2018.
_________________________
David Fine, Member