Tag: Albert v. Politano

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.
 

Possibility of Jail Not a "Negative Contingency" When Assessing Diminished Earning Capacity


This week the BC Court of Appeal provided reasons explaining that it is not appropriate for a judge or jury to reduce damages for diminished earning capacity when there is a possibility the Plaintiff will be incarcerated in the future.
In this week’s case (Albert v. Politano) the Plaintiff was seeking substantial damages for a collision caused injury which impeded him in his usual occupation.  Prior to his injury trial the Plaintiff was charged with a criminal offence which he was disputing.  The Defendant argued that the jury could consider the possibility of conviction and incarceration in assessing injury caused diminished earning capacity.  In finding this inappropriate the BC Court of Appeal provided the following comments:
 42]        I do not agree the judge erred as alleged. I reach this conclusion for three reasons. First, the judge was not asked to give the instruction now advocated, notwithstanding the opportunity given to counsel to comment on the proposed instructions. Second, there was no evidence upon which a jury could assess the value of such a contingency. Third, and most important, I do not consider it would have been appropriate for the jury to reduce the future damage award for the negative contingency of a possible future jail sentence, in the circumstances before the Court. Mr. Albert stood in the courts, and in the community, as innocent until proven guilty. Even if proven guilty, there was no certainty that he would receive a jail sentence. In my view, it would have been entirely speculative for the jury to reduce the damage award to reflect the chance that he might be convicted on the outstanding charges. This is unlike the case relied upon by the appellants, British Columbia v. Zastowny, [2008] 1 S.C.R. 27, (2008) S.C.C. 4, wherein the Supreme Court of Canada, on appeal from this court, affirmed the appropriateness of a deduction in damages to take account of a period of incarceration that was established as a fact at the trial.

BC Court of Appeal Upholds Canadian National Boxing Champions $1,000,000 ICBC Hand Injury Case


(Cross-Published at the Canadian MMA Law Blog)
Last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.
ICBC appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –
[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.
[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.
[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.
[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.
I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.
 

Vancouver Jury Awards Canadian National Boxing Champion $1,023,000 In ICBC Claim

While an injured hand would effect most individuals in a negative fashion the consequences can be far more severe depending on the nature of your occupation.  Illustrating that an injury’s valuation largely depends on the unique circumstances of a Plaintiff, a recent Vancouver Jury verdict valued a Boxer’s ICBC claim involving a right hand injury at just over $1,000,000.

In the recent case (Albert v. Politano) the Plaintiff Jegbefumere ‘Bone’ Albert was involved in a 2008 collision.  He was a professional cruiser weight boxer at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic right hand injury.  This injury flared with training/fighting.  The Plaintiff had 3 more professional contests post crash and despite his hand injury he won all these contests.  The chronic nature of the injury, however, interfered with his abilities and required the Plaintiff to take early retirement in 2009 at the age of 29.

After a 5 day trial before Mr. Justice Greyell the Vancouver Jury awarded the Plaintiff just over $1 million for his losses including the following damages:

Non-Pecuniary Damages: $125,000

Past Diminished Earning Capacity: $60,000

Future Diminished Earning Capacity: $868,000

As with all Jury verdicts, there are no ‘reasons for judgement’ to publish.  I would like to thank Vancouver lawyer John Cameron for sharing this result with me for publication on this blog.

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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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