As a result of her fall in June 2001, the Claimant suffered ongoing pain in her left knee. The evidence of the orthopaedic surgeon who had replaced the Claimant’s knees (Dr. Werry) was preferred over the City’s expert, Dr. Hirsch (physiatrist). The Court found that Dr. Werry was “the only physician who attempted to explain the persistent pain in Ms. Pollon’s knee.” Additionally, the Court found that the Claimant’s right knee “had the same condition and was operated on in the same fashion as the left knee but is not painful.”
In the result, Judge Ehrcke awarded $23,000 in general damages to the Claimant saying as follows:
The Court additionally levied a penalty of 10% of the award against the City for failing to take a $20,000 formal offer put forward by the Claimant. Under the Provincial Court rules, a penalty of up to 20% of the amount awarded can be levied against a party who fails to accept a formal offer if the opposing party is awarded an amount greater than the formal offer at trial.