Hopefully we can get some of our lawyers out of hibernation, but there are several issues here that I'd like to explore.
Jurisdiction
Colorado courts threw the case out citing it was out their jurisdiction. British Columbia has its own laws that limit the amount that could be paid out in damages.
Tom Benjamin, blogger and labor expert (consultant to courts) had this to say at that time:
It's interesting that the claim of permanent brain damage didn't arise in this initial foray in the BC courts. Moore's education, as Tom pointed out, worked against him because it was thought he'd be able to work well beyond any hockey career he might have had (which arguably was never going to be substantial). That figure can be calculated if you take the league minimum with some reasonable raise and assume he has an average NHL career span. We're nowhere close to $30+ million if that's how you account for it. (Do agent fees get calculated in this, btw?)
So if there's anything new for me here, it's the new claim of permanent brain damage that prevents Moore from ever putting his Harvard degree to use. I'll add that comparables can probably be pulled for other Harvard grads with similar degrees, and I'm at least doubtful that they all would have multimillion dollar earnings, but that's another tangent.
More from Benjamin (Feb 2006):
I'm pulling Tom's stuff out because I think he's done a great job of framing this case from a legal perspective, and he has links to the original stories covering this since we go back to 2005.
Damages and How Canadian Courts Decide (and again, Why Ontario)
2008:
http://canuckscorner.com/tombenjamin/2008/03/29/in-search-of-a-settlement/
And in the comments section:
Just as Tom can list out the probably path for a player of this type/age/trajectory, the same could be said for the claims of livelihood away from hockey. Since this is being brought before Canadian courts, what is the probable outcome when damage claims are seemingly multiples of times higher than actual loss of income that could be reasonably projected?
As far as the jurisdictional hearing in Colorado, Moore was attempting to engage a special Colorado statute to confer jurisdiction as Colorado has a "long arm" statute that permits such actions over foreign defendants subject to a court's directions.
In addition to having jurisdiction over the particular case (this is often called "subject-matter jurisdiction") the court must also have jurisdiction over the particular defendant ("personal jurisdiction"). Defendants who are individual residents of Colorado or business entities formed or headquartered in Colorado will be subject to the jurisdiction of Colorado courts. Alternatively, if an out-of-state individual commits a tort while in Colorado (as by negligently driving through the state), or if an out-of-state business markets and sells a dangerous product within the state, there will also generally be a sufficient jurisdictional basis for the Colorado courts over a claim for injuries resulting from those acts. The question of personal jurisdiction requires consideration of a statute adopted by Colorado (like many other states) called the "long-arm statute" (C.R.S. 13-1-124), a statute which represents the Legislature's effort to extend the "long arm" of Colorado courts' jurisdiction over non-Colorado defendants to the fullest extent permitted by the United States Constitution.
However to do that it was necessary to show a nexus between Colorado and the battery that occurred in Vancouver when Bertuzzi delivered the sucker punch. This was done by pleading that a civil conspiracy came into existence at the time of the Moore hit on Naslund and continued up to the Bertuzzi sucker punch. There was shorter statutory limitation period for this action so that is why it was brought forward first. Also at the time the matter was heard Moore was no longer being treated in Denver as his contract had expired and he was back in Ontario.
Civil conspiracy is a difficult claim to make out since it has to be proved on a criminal standard unlike most civil claims and the judge did not find sufficient evidence to let the case go forward - in other words the Colorado court determined that there were Canadian courts with better claims as to jurisdiction.
BTW Colorado has similar restrictions as to non-pecuniary damages (pain and suffering) similar to Canada and has more limited punitive damage limits than Canada. Since the bulk of the claim is based pecuniary damages such as past lost income and loss of future income earning capacity, in terms of caps on damages it was pretty much a wash. There was no significant juridicial advantage to Colorado in respect of damages. The other thing in Colorado Moore was guaranteed a jury trial and that is not necessarily the case in Canada as such cases can be heard by judge alone.
Once that decision was made by the Colorado court rejecting personal jurisdiction there was no need to continue trying to make out the claim of civil conspiracy as it was not necessary to found jurisdiction in BC nor Ontario. BC would work because the incident took place there and the Canucks were located there but both Moore and Bertuzzi has off-season residences in Ontario and Bertuzzi also had other assets located within the jurisdiction ( a golf course, other business ventures, etc.). It is possible to bring a case in more than one jurisdiction and in this case Moore as the Plaintiff chose Ontario.
In this case the Ontario courts assumed jurisdiction and the case continued there.
This will be a battle of the medical experts as to the extent and severity/permanence of the neurological damage from the brain injury and also the actuaries to calculate damages for past and future loss of income based upon contingencies.
In terms of what the courts do this is pretty much run of the mill - the unique aspect is that this involves hockey players rather than an MVA.
From a legal issue perspective the claim for vicarious liability and/or negligent supervision against the team and Crawford are the most interesting but it is not unique as there is case law in sports on this issue already as I note below.
As far as insurance, that may have been a driving force in Bertuzzi adding Marc Crawford as a third party defendant:
A third-party suit, in which Bertuzzi is suing former Canucks head coach Marc Crawford, will be heard at the same trial.
Bertuzzi contends that Crawford encouraged him to avenge Moore’s hit on then Canucks captain Markus Naslund in a game three weeks before the incident in Vancouver. Crawford denies that he sent Bertuzzi on the ice to exact retribution.
The stakes are high for Crawford, the Canucks and particularly Bertuzzi, who now plays for the Detroit Red Wings. While the Canucks and Crawford are covered by the team’s insurance policy, Bertuzzi is not because he pleaded guilty to assault and was sentenced to probation and 80 hours of community service.
Bertuzzi, 36, will be personally liable for any damages that may be awarded, although the Canucks’ insurance policy only covers the team and Crawford up to $10-million with an additional $1-million for legal fees.
http://www.theglobeandmail.com/spor...ally-getting-his-day-in-court/article2166240/
In respect of the issue of the permanence of a disability, that is often one of the most difficult decisions for counsel to make in these sorts of cases. It takes time to determine how injuries may resolve - if they ever will or at least to get a handle on predictability. If you go ahead too soon then you may not have the evidence needed to make your case and as much of the claim for loss of future income earning capacity is driven by this contingency, it is critical to get it right.
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 and through the rest of his life.
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.â€
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.
http://goliath.ecnext.com/coms2/gi_0199-74...ook-at-the.html
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?â€
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.â€
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 yearsâ€? 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.â€
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.
Another issue is the liability of the team. Under the law employers are liable in various situations for the wrongful acts of their employees (vicarious liability) and may be guilty of wrongdoing themselves if they failed to defuse a situation or handle players properly (negligent supervsion).
The NHL itself has already provided much of the basis for the claim against the Canucks. Do you not recall that as part of the disciplinary process the team was fined and what Colin Campbell had to say at the time.
Employees of the team were making idiotic comments about the hit on Naslund and fanning the flames or more accurately tossing gasoline on the flames. That is why the NHL whacked the Canucks with a big fine because the team management (read Burke and Crawford) did not do what they should have to control the situation.
In fining the Canucks Colin Campbell said:
"In light of numerous player comments about Mr. Moore following the Vancouver-Colorado game of February 16, we believe the Vancouver organization ultimately bears some responsibility for monitoring and, to the extent necessary, attempting to moderate the focus of its team. While the League provided appropriate advance warnings to both organizations, and while some steps were apparently taken by the Vancouver organization to ensure a proper focus by the players on the game itself, we believe that more could have and should have been done."
Seems pretty clear that the NHL put some of the responsibility for Bertuzzi's criminal actions upon the Canucks. Moore is using that evidence to make his claim.
There are two separate legal bases under which the Canucks could be found liable:
- Vicarious liability
- Negligent supervsion
Under the law employers are liable in various situations for the wrongful acts of their employees (vicarious liability) and may be guilty of wrongdoing themselves if they failed to defuse a situation or handle players properly (negligent supervsion).
By operation of law an employer can be held vicariously liable for the actions of its employees if damage or injury results from the actions of the employee. The Canucks and Crawford will try to paint Bertuzzi's actions as completely unauthorized and unconnected to or outside of the scope of his position as a professional hockey player. Bertuzzi will say that he was doing what he was being encouraged to do - exact retribution on Moore.
If the evidence is that the Canucks and/or Orca Bay did create or materially enhance the risk of Bertuzzi's’s intentionally tortious behaviour, they could be found vicariously liable for Bertuzzi's actions. Accordng to recent Supreme Court of Canada law on this issue if there is evidence that the employer created or enhanced the risk of an employee’s tortious conduct by creating an atmosphere of friction or confrontation, then that is sufficient to fix vicarious liablity. It used to be that vicarious liablity only applied to negligent acts but now it caninclude intentional torts such as battery.
Negligent supervison is a little different as Moore is saying that the Canucks and Orca Bay committed a civil wrong (a tort).
The theory of negligent supervision is well suited to professional hockey as the theory is based on a straightforward causal connection between employer fault (i.e. negligence in supervising an employee) and an employee’s tort, a defendant cannot raise the defence that the employee was acting outside the scope of employment (as may occur with a claim based on vicarious liability).
A claim grounded on negligent supervision also provides Moore with the possibility of claiming punitive (i.e punishment) damages, something that is not available in a claim based on vicarious liability. Under Canadian law damages (a court award of money) for what are referred to as "pain and suffering" damages for the injuries and discomfort cause are currenlty limited to about $320,000 as a result of a series of Supreme Court of Canada court decisions. There is no limit to the amount of punitjve damages that may be awarded to a plaintiff.
What evidence does Moore have to make the claim for vicarious liability and/or negligent supervsion?
Thanks to the NHL Moore has very strong evidence for this type of claim.
It is not the first time a team (incuding a hockey team) has been sued (and found liable) on these grounds.
Wayne Babych of the Hartford Whalers sued Basil McCrae of the Quebec Nordiques for a slash to his knee that required knee surgery. In fact Babych pleaded negligent supervision and vicarious liability and included the Nordiques in the claim. The case settled out after the Nordiques and McRae were unsuccessful in trying to get the lawsuit dismissed.
In Babych v. McRae et al., Babych, a professional hockey player employed by the Hartford Whalers, brought suit against the defendant, McRae, of the Quebec Nordiques and the defendant’s employer, the Club De Hockey Les Nordiques, for personal injuries incurred during an NHL game. Babych alleged that McRae struck him across his right knee causing personal injury and financial losses. Babych contended that the injuries and losses were caused by McRae’s negligence in that, inter alia, he swung his stick when he knew or should have known that such action could cause serious injury. The defendants filed a motion to strike the claim on the ground that the negligence alleged by Babych failed to state a legally sufficient cause of action. The court noted that there was no analogous Connecticut case law barring a negligence action in the context of sports co-participant cases. The court denied the defendants’ motion to strike, holding that ordinary negligence is, in fact, a legally sufficient cause of action when one professional sports participant injures another.
In the NFL the leading case is Hackbart vs.
Cincinnati Bengals, Inc. which arose out of a National Football League game between the Cincinnati Bengals and the Denver Broncos in which the plaintiff, Dale Hackbart, a defensive player for Denver, was severely injured after a Cincinnati pass was intercepted near the goal line. Hackbart attempted to block the defendant, Booby Clark, an offensive player for Cincinnati, and fell to the ground. Clark, “[a]cting out of anger and frustration, but without a specific intent to injure,…stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head with sufficient force to cause both players to fall forward to the ground.†Hackbart sustained a severe neck injury and was subsequently released by the Broncos. He sought recovery claiming, inter alia, reckless misconduct and, alternatively, negligence. The Tenth Circuit Court of Appeals held that Hackbart’s claim was actionable and should not have been dismissed merely because the injury had occurred during a professional sporting event. The court stressed that “there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.†The case subsequently settled.
In Dunn v. University of Ottawa, an intercollegiate football player was injured as a result of a violent hit delivered by a player on an opposing team. The plaintiff, a 150 pound punt returner for Carleton University, was preparing to return a punt when the defendant, a 225 pound linebacker for the University of Ottawa, lowered his head and drove his helmet into the plaintiff’s exposed jaw. The hit was a blatant violation of the intercollegiate five yard rule which creates a five yard “restraining zone†into which the tackler must not enter until the receiver has touched the football. The court held that the defendant’s conduct “fell far below the standard that might reasonably have been expected of a football player during an intercollegiate football game†and rendered its judgment in favour of the plaintiff. In so doing, the court provided a clear example of the tendency demonstrated by other Canadian courts when faced with similar facts to impose a requirement of intention or recklessness in the context of a negligence analysis. The court stated that “[o]nly when there is a deliberate intention to cause injury or a reckless disregard for the consequences of one’s actions in an uncontrolled and undisciplined manner will a finding of negligence result.â€
In the NBA the leading case was the lawsuit brought by Rudy Tomjanovich of the Houston Rockets against the LA Lakers and Kermit Washington for head and neck injuries injuries suffered by a Washington sucker punch. Again note the team was sued and held liable. At trial Tomjanovich won a multi-million award and this was in 1978.
Tomjanovich v. California Sports, Inc. is another important case in the history and development of the body of law that relates to civil liability in the context of professional sports injury litigation. The plaintiff, Tomjanovich, playing for the Houston Rockets of the National Basketball Association, was punched in the face by Kermit Washington of the Los Angeles Lakers as Tomjanovich attempted to break up a fight between Washington and a fellow Rockets player. The blow fractured Tomjanovich’s face and skull, crushed his jaw, broke his nose and caused a cerebral concussion which resulted in a loss of blood and leakage of spinal fluid from Tomjanovich’s brain cavity. Tomjanovich brought suit against the Lakers alleging both vicarious liability and negligent supervision. The jury rendered its verdict in favour of Tomjanovich, finding the Lakers liable for the injuries caused as a result of Washington’s battery. Tomjanovich was awarded approximately $3.25 million, including $1.5 million allocated as punitive damages.
And there have been findings of liability in the rough and tumble of professional rugby. In Canterbury Bankstown, this case arose as a result of injuries sustained in the course of a professional rugby match in New South Wales, Australia. In holding a professional rugby club liable for the deliberate tortious conduct (an illegitimate tackle) of one of its players, the appellate court stated that:
It was within the scope of [the defendant’s] employment, ie, it was one of the things that as a player he was to do, to grapple with [the plaintiff], stop him and bring him to the ground. He was allowed to do this by using his forearm against [the plaintiff’s] chest or shoulders; that was proper under the rules. But it was contrary to the rules of the Rugby League to do it by applying his forearm to [the plaintiff’s] head. That is agreed. In the relevant sense, what [the defendant] did was to do to the head what he was authorized to do to the body and he did it for the purpose for which he was employed by the Club. That, in my opinion, supports the conclusion that the Club is liable upon the scope of employment basis.
So the claim against the Canucks seems legally well-founded - whether it can be proved or not in the courts is a whole other issue.
