Provincial Court Awards $23,000 for Chronic Knee Pain to Elderly Claimant

In the recently published Provincial Court case of Pollon v. City of Vancouver, 2007 BCPC 0306 an elderly Claimant was awarded $23,000 in general damages for injuries sustained as a result of a fall on a city street.  At the time of trial the Claimant was 72 years old and suffering from numerous health problems.  She had had both knees replaced in 1996 due to osteoarthritis.  The Claimant had recovered successfully from that procedure.

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:

[22]       In summary, the effects of this accident on Ms. Pollon have been chronic pain on the side of her left knee and a decreased ability to walk.  The effects are permanent.  The pain is in addition to other more intermittent pain she experiences from her rheumatoid arthritis.  These other conditions would have left her with some pain-free days.  Now there are none.

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.

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