Our Fort St John, Dawson Creek and Fort Nelson ICBC Personal Injury Lawyers Focus On Getting You Large Awards
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Fort St John and Dawson Creek ICBC Accident Claim Personal Injury Lawyers Explain Large Jury Damage Awards
The recent case BC Court of Appeal decision of Albert v. Politano, shows how the court and juries determine pain and suffering losses and financial or money losses suffered by an injured party. In this case the injured victim of the ICBC accident was sideswiped into a utility pole suffering a variety of injuries including injuries to his hand. The injured victim was a boxer and evidence was led concerning what he might earn on various boxing matches he might be involved in both past and in the future. The jury awarded more than $1 million to the boxer and the defendant and ICD’s appeal this award as being far too high. The BC Court of Appeal disagreed with the ICBC lawyers and upheld the jury’s award. Our Fort St John and Dawson Creek ICBC Personal Injury Lawyers want to help you maximize your ICBC claim money award.
 SAUNDERS J.A.: On July 12, 2012 a jury awarded Mr. Albert $1,023,000 in damages for injury arising from a motor vehicle accident on September 2, 2008. The award was broken into three components:
Non-pecuniary loss $125,000 Mr. Albert was a passenger in a vehicle driven by the appellant Mr. Norense and owned by the appellant numbered company, when it was sideswiped by another vehicle driven by the appellant Mr. Politano and owned by the appellant Canadian Road Holdings Company, causing the vehicle carrying Mr. Albert to strike a utility pole. Mr. Albert commenced his action alleging, as his primary injury, damage to his right hand. He also alleged upper body injuries that caused headaches, neck pain and back pain that resolved over time.  Liability was admitted but the extent of damages to which Mr. Albert is entitled was vigorously contested. Mr. Albert was a boxer at the time of the accident. The defendants, now appellants, challenged the extent of Mr. Albert’s injury, and sought to raise a pre-existing condition as the reason he could no longer box competitively. They challenged Mr. Albert’s credibility and the extent of his loss of earnings. They said that he had not mitigated his losses and they were critical of his decision to cease boxing when he did. The appellants say the damages award, particularly the pecuniary damages for lost earnings as a boxer, cannot be sustained. They ask us to set aside the order and to order a new trial, or alternatively, to reduce damages they are required to pay.  Those comments are apt to the complaint now levelled at the judge’s instruction. I would not grant a new trial on this basis. Should we then, make our own adjustment? Neither counsel called evidence on the issue, and one cannot discern from the evidence a relationship between time and the amount awarded by the jury. That is, one cannot determine how the jury viewed the number and timing of the boxing matches that must found the damages award. More so than most cases, this case required crystal ball gazing. In this circumstance, I see no basis upon which we could make a principled adjustment to the damages awarded. Accordingly I would not interfere with the award on this basis.  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.  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.  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.  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.  This brings me to the last head of damages, non-pecuniary damages, awarded in the amount of $125,000. That is a significant award. Nonetheless, although higher than similar awards in cases of loss of fine athletic capacity, can it be said to be so high as to be wholly erroneous? It was, after all, the jury that saw and listened to Mr. Albert and the other witnesses, and bringing their worldly knowledge which is the hallmark of juries, could assess the pain, suffering and loss of enjoyment of life caused by the injury sustained in the accident, and its effect upon his distinguishing characteristic as a high level boxer. I cannot say, in these circumstances, that the award of non-pecuniary damages meets the level that would permit this court to interfere. I would not accede to this ground of appeal.  I would dismiss the appeal.
Past loss of income $60,000
Loss of future earning capacity $838,000<
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