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Old
09-14-2011, 03:24 PM
  #1
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Moore Civil Trial Date Set

Mediation has been unsuccessful so Moore's case against Bertuzzi, Orca Bay and the third party claim against Marc Crawford is scheduled to begin 24 September 2012 in Ontario Superior Court.

http://www.vancouversun.com/sports/T...086/story.html

http://www.cbc.ca/sports/hockey/stor...zzi-moore.html

BTW Orca Bay Sports and Entertainment continues under its new name of Canucks Sports & Entertainment.
http://canucks.nhl.com/club/news.htm?id=452518


Last edited by Wetcoaster: 09-14-2011 at 03:35 PM.
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Old
09-14-2011, 03:34 PM
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2010 already happened...?

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09-14-2011, 03:36 PM
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R0bert0 Lu0ng0
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So I guess the entire city (and Todd Bertuzzi's legal team)'s wish that this would just go away already has still not come true.

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09-14-2011, 03:38 PM
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Who cares?

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09-14-2011, 03:59 PM
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I do not really care about this anymore.

The only way I care is that I hope Orca Bay/CSE don't lose too much. Still, very small interest.

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Old
09-14-2011, 04:06 PM
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Quote:
Originally Posted by RJC View Post
Who cares?
Quite a number of people including yourself who took the time to read and respond.

There are some very interesting issues this case will deal with such as vicarious liability and/or negligent supervision being alleged against the team by Moore, Bertuzzi's third party claim against Marc Crawford, etc.

Bertuzzi's liability for battery is not really at issue given his criminal conviction.

The damage award will be the major issue and in particular past income lost and future loss of income earning capacity.

Having done personal injury cases from both the defence (insurer) and plaintiff side, it is always difficult to determine when to go to trial as catastrophic injuries may not fully resolve or become clear until years after the event. In one case when I was on for an insurer we pushed an early settlement with a motorcyclist and he took it. Shortly thereafter he suffered a spinal cord injury when a cracked non displaced fracture of the vertebrae, displaced rendering him a near total quadriplegic. However as he has settled and signed a release, his only recourse was to sue his doctors for negligence in failing to detect the injury... and he was not successful.

In cases involving concussions and neurological injuries it can take years - as here to get a handle on the full extent of the injuries and be in a position to adduce evidence as to its future impact. And remember this stretches beyond his Moore's hockey career.

As Tim Danson, Moore's lawyer said recently:
“It has been very difficult for the process to take this long. But actually, we needed the passing of time to fully understand the magnitude of the brain injury. This (incident) just didn’t terminate his NHL career. It impacted everything in his life. It impacted his future and his future employment.

“We’ve had years to look at this now and because Steve Moore has exceptionally high intelligence and is a Harvard graduate, we needed to evaluate all the factors involved. If we went to a jury too early, you wouldn’t have had the answers. It has been a lot of years and a lot of tests and we’ve learned a lot about the brain. I can’t really go into details right now because that will be a live issue at the trial.”

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09-14-2011, 04:11 PM
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09-14-2011, 04:15 PM
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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.

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09-14-2011, 04:17 PM
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ddawg1950
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Quote:
Originally Posted by Wetcoaster View Post
Quite a number of people including yourself who took the time to read and respond.

There are some very interesting issues this case will deal with such as vicarious liability and/or negligent supervision being alleged against the team by Moore, Bertuzzi's third party claim against Marc Crawford, etc.

Bertuzzi's liability for battery is not really at issue given his criminal conviction.

The damage award will be the major issue and in particular past income lost and future loss of income earning capacity.

Having done personal injury cases from both the defence (insurer) and plaintiff side, it is always difficult to determine when to go to trial as catastrophic injuries may not fully resolve or become clear until years after the event. In one case when I was on for an insurer we pushed an early settlement with a motorcyclist and he took it. Shortly thereafter he suffered a spinal cord injury when a cracked non displaced fracture of the vertebrae, displaced rendering him a near total quadriplegic. However as he has settled and signed a release, his only recourse was to sue his doctors for negligence in failing to detect the injury... and he was not successful.

In cases involving concussions and neurological injuries it can take years - as here to get a handle on the full extent of the injuries and be in a position to adduce evidence as to its future impact. And remember this stretches beyond his Moore's hockey career.

As Tim Danson, Moore's lawyer said recently:
“It has been very difficult for the process to take this long. But actually, we needed the passing of time to fully understand the magnitude of the brain injury. This (incident) just didn’t terminate his NHL career. It impacted everything in his life. It impacted his future and his future employment.

“We’ve had years to look at this now and because Steve Moore has exceptionally high intelligence and is a Harvard graduate, we needed to evaluate all the factors involved. If we went to a jury too early, you wouldn’t have had the answers. It has been a lot of years and a lot of tests and we’ve learned a lot about the brain. I can’t really go into details right now because that will be a live issue at the trial.”
Wet, if Moore wins damages against any or all defendants...who pays? Initially I'm thinking insurance companies...but is this true? Would Bert have to pay any or all costs?...or Crawford?...Orca Bay?

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09-14-2011, 04:19 PM
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double post

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Old
09-14-2011, 04:32 PM
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this is still going on? wtf

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09-14-2011, 04:32 PM
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Quote:
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.
I don't think it's out of the question to speculate that Steve Moore could've made between 2-3 million if he had played out his full career. Not exactly chump change. The minimum pay for a player is over half a million, so when you look at it from that perspective, not even considering the fact that he could've become a better player and earned himself more than minimal pay as an NHLer.

I agree that he wasn't destined to be a top tier player, but to say he wouldn't have made millions, well, it depends how many millions we are talking...


Last edited by ubiquitous: 09-14-2011 at 04:46 PM. Reason: typo
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Old
09-14-2011, 04:32 PM
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Awesome. Can't wait for the media to go on and on about a trial I care nothing about.

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09-14-2011, 04:42 PM
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This just needs to end already.

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09-14-2011, 05:23 PM
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Quote:
Originally Posted by ddawg1950 View Post
Wet, if Moore wins damages against any or all defendants...who pays? Initially I'm thinking insurance companies...but is this true? Would Bert have to pay any or all costs?...or Crawford?...Orca Bay?
There is insurance covering Crawford and likely Orca Bay but there will be limits - over that limit and the defendant pays. Crawford will likely be fully covered as an employee unless Orca Bay can prove he acted beyond his status as coach (unlikely).

Bertuzzi would be paying out of his own pocket so that is the reason for the third party claim against Crawford. He will aslo claim he was acting as an employee and supporting Moore's claim against Orca Bay for vicarious liability and/or negligent supervision IMHO.

Orca Bay OTOH will likely claim Bertuzzi was acting outside his duties and that they are not in any way liable. This may be the most interesting fight on liability since it is a foregone conclusion as to liability for battery as Bertuzzi has already been criminally convicted. recently the Ontario Court of Appeal clarified this issue as there had been a couple of cases that seemed to muddy the principle.

Civil claims arising out of criminal actions are common. Thus a civil claim for sexual assault can arise out of the same set of facts which grounded a criminal charge. It has long been accepted that a criminal conviction (as opposed to a dismissal) provided prima facie proof of the facts underlying the criminal conviction. A recent Ontario Court of Appeal case confirmed this in Caci v. Dorkin, 2008 ONCA 750. The Court held a verdict in the criminal case and the findings essential to that verdict are conclusive in the civil proceedings to find liability on the Defendant. Bertuzzi was convicted of assault causing bodily harm which is the criminal counterpart to the tort of battery which is the foundation for Moore's civil claim against Bertuzzi.

As far as Moore is concerned if all defendants are liable he likely will go after the one with the deepest pockets (Orca Bay) and let the defendants fight it out among themselves as to apportionment of damages between the defendants.

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09-14-2011, 05:25 PM
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Quote:
Originally Posted by Wetcoaster View Post
Quite a number of people including yourself who took the time to read and respond.
While it's still an interesting case, only one person in this thread expressed interest in this.

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09-14-2011, 05:28 PM
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Originally Posted by ItsAllPartOfThePlan View Post
This just needs to end already.
Hence the trial date. Often that may motivate settlement discussions.

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09-14-2011, 05:30 PM
  #18
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Quote:
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.
Quote:
"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.
Quote:
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.
http://goliath.ecnext.com/coms2/gi_0199-74...ook-at-the.html

Here is the generally accepted tests for entitlement:
Quote:
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:
Quote:
"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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Old
09-14-2011, 05:39 PM
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While it's still an interesting case, only one person in this thread expressed interest in this.
This.

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09-14-2011, 05:43 PM
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Moore obviously deserves to be compensated, but beyond that this is a topic that just needs to go away.

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09-14-2011, 05:44 PM
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parabola
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Quote:
Originally Posted by Wetcoaster View Post
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.
Well while this thread is here might as well discuss it somewhat before I get bored of it - again. Don't you think Moore will have a tough time convincing people he's suffered brain damage?

Actually now that I think about it, the fact he's seeking about 20 million out of this whole thing, I think he might have a case.

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09-14-2011, 05:47 PM
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Actual the thing people need to realize is that this going to the courts could be a very bad thing for the NHL on several levels

several groups are watching this to see the outcome--because more or less--what has happened on the ice has stayed on the ice--but now when the courts get involved the nhl could find themselves being dragged in by insurence companies who have to pay out over injuries--

here is an example

say player X from Team A injures one of the twins and ends his career. The canuck insurer decides that the injury was intentional and decides to sue team A to recoup the insurance money--well first step is they would go to the criminal side and try to make a case first--because if they can get a criminal convistion--it would be easier to win the civil case down the road-- there are some huge implications that could come from this

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09-14-2011, 05:48 PM
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Any chance the McCaw-Aquilini sale agreement of Orca Bay/CSE had some sort of stipulation regarding this lawsuit?

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09-14-2011, 05:49 PM
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Psst. David Shoalts is now covering this story. Enjoy.

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09-14-2011, 05:52 PM
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Quote:
Originally Posted by Tim Calhoun View Post
Any chance the McCaw-Aquilini sale agreement of Orca Bay/CSE had some sort of stipulation regarding this lawsuit?
AFAIK this no longer involves anyone in the Canuck organization.

Quote:
The defendants in the case are Bertuzzi and Orca Bay, the former owner of the Canucks.

Bertuzzi in 2008 made a third party claim against Crawford. Bertuzzi said in a statement that the Canucks coach told the team during the second intermission of the game that Moore "must pay the price", with Crawford countering that the Vancouver forward acted in "direct disobedience" of the bench.
All are no longer part of the Canucks organization.

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