Thread: Vancouver Sun: Moore Civil Trial Date Set
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09-14-2011, 05:30 PM
Join Date: Sep 2003
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Originally Posted by Reign Nateo View Post
My favourite part is how his lawyer acts like Moore was some kind of NHL star destined to make millions per year. The guy was a scrub that likely wouldn't have had much more of an NHL career with or without the incident.

I'll be happy when all of this is over and I never have to read about that cry-baby Steve Moore ever again. Give him his money, get it over with.
As far as the amount claimed, there are numerous heads of damages but the one that can really mount up in a hurry is loss of future earning capacity. It does NOT just apply to what Moore may have made in his hockey career.

As a general rule when you calculate the damages you split them into the various categories and then figure each out.
"Damages fall under two heads: general damages, i.e., such damages as the law will presume to flow from that which forms the subject-matter of the action; and special damages, i.e., such other damages as can be recovered only if specially alleged and specifically proved. When an action cannot be sustained unless there is special damage, the subject-matter is described as not being actionable per se.

"Damages are either liquidated or unliquidated. Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data, it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties, and is fixed by opinion or by an estimate, the damages are said to be unliquidated."
R v Agat Laboratories Ltd, Alta CA

A defendant is liable to a plaintiff for all the natural and direct consequences of the defendant's wrongful act so by his battery Bertuzzi will be responsible for all expenses and losses that Moore has incurred and may incur in future.

This would include all expenses as well as actual lost income. Where dollars can really mount up is loss of future earning capacity and not just over his hockey career but his entire life. Also the court would look at the loss of pension benefits. There would aslo be a consideration of loss of opportunity as a veteran NHL'er would have more opportunity to market himself.
Claims loss of future earning capacity arise in cases where a person has been injured through [he negligence of another and his or her injuries are likely to interfere with the ability to earn income in the future. Rather than characterize this as a loss of future income, the courts have for some time described this loss as the impairment of a "capital asset", the asset being the ability or capacity to earn income. It is the impairment of that capital asset which must be measured and compensated, not the loss of a stream of income.

Here is the generally accepted tests for entitlement:
1. On the balance of probabilities, did the tort complained of cause an injury, the effects of which are likely to affect the plaintiff's ability to function in the future?

2. Has the earning capacity been impaired, according to the definition set out in Brown v. Golaiy (1) (the plaintiff is less capable overall of earning income from all types of employment, is less marketable or attractive as an employee, cannot take advantage of all job opportunities that might otherwise have been open, and is less valuable to himself or herself as a person capable of earning income)?
In Moore's case not only will the court look at his hockey career but whether or not the brain damage he has suffered will have an impact on other future careers. There have been several recent pro sports studies which indicate that a severe concussion with long term PCS materially increases the chance of Alzheimer's Disease and other neurological impairments. This would all be the subject of claim.

Then there are damages for the wrongful act (the battery) itself as well as non-pecuniary (pain and suffering) damages. Moore is also claiming punitive (aka exemplary) damages due to the nature of the tort. These sort of damages can be awarded when a defendant's conduct is particularly willful, wanton, malicious, vindictive, or oppressive. Punitive damages are awarded not as compensation, but to punish the wrongdoer and to act as a deterrent to others who might engage in similar conduct. There is no upper limit on such damages.

There are also aggravated damages which are considered compensatory in nature:
"Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory....

"Aggravated damages are awarded to compensate for aggravated damage. As explained by Waddams, they take account of intangible injuries and by definition will generally augment damages assessed under the general rules relating to the assessment of damages. Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstances where the conduct giving the cause for complaint is of such nature that it merits punishment."
TWNA v Clarke 2003 BCCA 670

As you can see the dollars can mount up very quickly but ultimately it will be up to the judge (or jury if there is one) to determine that actual dollar value of the award.

Here is how the Supreme Court of Canada has laid out the process for determining loss of future earning capacity and it has been the law for 30 years. The oft-quoted passage of Dickson, J, that is the standard for determining prospective loss of earnings is as follows:

“We must now gaze more deeply into the crystal ball. What sort of a career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made... A capital asset has been lost: what was its value?”

The first thing that must be determined is the level of earnings that the plaintiff had at the time of the accident as well as the reasonable estimate of the plaintiff's future average level of earnings as, “without doubt, the value of the plaintiff’s earning capacity over his working life is higher than his earnings of the time of the accident.”

The next thing to be determined is the length of the working life of the plaintiff. On that point the court had this to say:

“One must then turn to the mortality tables to determine the working life expectancy for the appellant over the period between the ages of 23 and 55. The controversial question immediately arises whether the capitalization of future earning capacity should be based on the expected working life span prior to the accident, or the shortened life expectancy. Does one give credit for the “lost years”? When viewed as the loss of a capital assets consisting of income earning capacity rather than a loss of income, the answer is apparent: it must be the loss of that capacity which existed prior to the accident. This is the figure which best fulfills the principal of compensating the plaintiff for that for what he has lost.”

The next thing to be determined are the contingencies and the court had this to say:

“It is a general practice to take account of contingencies which might have affected future earnings, such as unemployment, illness, accident and a business and business compression… There are, however, a number of qualifications which should be made. First, in many respects, these contingencies implicitly are already contained in an assessment of the projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work, vicissitudes and all. Second, not all contingencies are adverse, as the above list would appear to indicate… ‘Why count the possible buffets and ignore the rewards of fortune?’ Finally, in modern society there are many public and private schemes which cushion the individual against adverse contingencies. Clearly, the percentage deduction which is proper will depend on the facts of the individual case, particularly the nature of the plaintiff’s occupation, but generally it will be small."

This sort of exercise goes on every day in the courts so it is nothing new.

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