Lay Opinion Evidence Addressing An Athlete's Potential

Reasons for judgement were recently shared with me addressing the scope of permissible lay witness opinion evidence addressing an athlete’s potential to advance in a professional sport.
In the recent case (Albert v. Politano) the Plaintiff was a professional boxer who suffered a hand injury in a collision.  One of the issues canvassed at trial related to the Plaintiff’s potential to succeed in his sport.  Ultimately a jury awarded the Plaintiff substantial damages for diminished earning capacity and this verdict survived appellate scrutiny.
In the course of trial the Court was asked to address if opinion evidence relating to the Plaintiff’s potential trajectory in the boxing world was admissible from lay witnesses.  Mr. Justice Greyell agreed that it could and provided the following reasons addressing this topic:
[7]  The plaintiff seeks to admit evidence from several witnesses who were former coaches of the plaintiff or persons involved with the plaintiff in a professional capacity.  These witnesses will testify as to the plaintiff’s accomplishments, his abilities and his pre-accident potential to advance as a professional in the boxing world.
[8]  The defendants…do object to these witnesses offering opinions as to the plaintiff’s potential for advancement in the boxing world…
[9]  The general exclusionary rule for opinion evidence is often not applied for lay witness opinion…Lay witness opinion evidence is received in some circumstances because the opinion is considered helpful to the Court…
[10]  The Law of Evidence in Canada sets out four criteria upon which lay witness opinion evidence may be received in evidence at paragraph 12.14…
[11]   I find the lay witness opinion tendered by the plaintiff meets these criteria.  Each witness worked with or at least closely observed the plaintiff’s development as a boxer.  each witness is in a better position than the trier of fact to draw an inference as to the plaintiff’s future career as a boxer.  The witnesses all have experiential capacity, which I find is different from the ordinary circumstances of life (to which the jury is accustomed).  Finally, the witness’ opinion is a “compendious mode of speaking”.  In other words, the facts are too subtle and too complicated to be narrated separately and distinctly (as explained in Graat at 841).
[12]  I further note that paragraph 12.12 of The Law of Evidence in Canada states” “couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness’ perceptions.  The real issue will be the assessment and weight to be given to such evidence after it is admitted.”  This latter comment, in my view, is one which can be adequately addressed by proper instruction to the jury following examination and cross-examination.

[14]  For the reasons stated, I will permit these witnesses referred to above to give opinion evidence as to the potential for the plaintiff’s advancement as a professional boxer.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy    to anyone who contacts me and requests one.
 

Albert v. Politano, bc injury law, lay witness opinion evidence, Mr. Justice Greyell

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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