Drafting-Particulars of Claim

Two types of p/c in relation to car accident.

Exercise 7.6:

IN THE HIGH COURT OF JUSTICE Claim No 2003 HC 6003

QUEEN’S BENCH DIVISION

BETWEEN

MARJORIE TIMMS                           Claimant

and

CATHERINE HOBBS                        Defendant

PARTICULARS OF CLAIM
Harrison:

IN THE HIGH COURT OF JUSTICE Claim No

QUEEN’S BENCH DIVISION

BETWEEN

WILLIAM HARRISON                                              Claimant

and

(1)GENERAL COMMERCIAL FITTERS LIMITED

(2) SMITH AND TAYLOR LIMITED                          Defendants

PARTICULARS OF CLAIM

Exercise 7c

IN THE HEREFORD COUNTY COURT Claim No

BETWEEN

CHARLES PRENDERGAST                                      Claimant

and

GEORGE HARDING (CONSTRUCTION) PLC          Defendant

PARTICULARS OF CLAIM

Exercise 7A

IN THE CHESTER COUNTY COURT Claim No

BETWEEN

BRIAN FLANAGHAN                                               Claimant

and

BRENDA DINGLE                                                    Defendant

PARTICULARS OF CLAIM

Clinical Negligence 12.1

IN THE HIGH COURT OF JUSTICE Claim No

QUEEN’S BENCH DIVISION

BETWEEN

MERVYN GRADE                                                     Claimant

and

(1)MIDLANDS HOSPITALS TRUST

(2) DENZIL GRACE                                                  Defendants

PARTICULARS OF CLAIM

Stage 1. The Parties and the facts which give rise to the duty:

Harrison:

1) The First Defendants carry on a business in the course of which they repair, service and maintain commercial motor vehicle. The Second Defendant is and was at all material times the owner of a Redland 800E lorry, registration number K828 CJT (‘the lorry’). At all material times the lorry has been serviced and maintained by the First Defendants. (Harrison)

2). On or about 18th September 2000, the First Defendants purported to service and maintain the lorry and following the works of service and maintenance they returned the lorry to the Second Defendants. (H)

Exercise 7c

1). The Claimant is the owner of a house and land known as Mill Cottage in Mill Lane, Bogmarsh, Herefordshire, and of a Rover car registration number CDP 100.

2). From the end of Mill Lane, opposite Mill Cottage, an access road runs to the top of a hill known as Bog Peak where at the material time the Defendants were engaged in the construction of the M52 motorway.

Clinical Negligence 12.1

1) The First Defendant at all material times managed and administered the Rutland Hospital, Exton Park, Oakham, Rutland (‘the Hospital’), where it provided specialist medical and orthopaedic services under the National Health Service. The Second Defendant was at all material times employed by the First Defendant as a registrar orthopaedic surgeon.

2)On 14th June 2001 the Claimant attended the hospital complaining of a lump on the dorsum of his right wrist and pain in his right wrist radiating up the right forearm. On examination and diagnosis he was found to have an asymptomatic ganglion, and right carpal tunnel syndrome (compression of the right median nerve) with tenosynovitis. It was decided that the Claimant should attend the hospital for day surgery to excise the ganglion and decompress the right carpal tunnel (‘the Operation’).

3) The Defendants and each of them owed the Claimant a duty to exercise all due skill and care reasonably to be expected of a skilled experienced and competent orthopaedic surgeon in carrying out the Operation.

Stage 2. the accident or events or the cause of complaint:

Example 7.6

1. On 6th May 2002 at about 12.15 p.m. the Claimant was crossing the northbound carriageway of Regent Street, London W1 just north of Oxford Circus at the traffic lights. She was walking from west to east on the marked crossing controlled by the pedestrian aspect of the automatic traffic signals which were showing green in her favour when she was struck and thrown to the ground by a Rover 200 motor car registration number Y234 FNB being driven by the Defendant northwards up Regent Street and over Oxford Circus.

Harrison:

On 30th November 2000 one Henry Moss, the employee or agent of the Second Defendants, was driving the lorry on the M1 motorway, travelling south, when at a point about 5 miles north of junction 15, the offside front wheel became detached from the lorry and ran into the northbound carriageway of the motorway where it collided with the offside of a Jaguar XJS motor car, registration number AAP 3, driven by the Claimant.

Exercise 7c

On or about 27th June 2003 the Defendants parked a lorry registration number S876 BPJ at the top of the access road. At a time unknown between 6.p.m. and 11.30 p.m. on that date the lorry rolled down the access road, collided with a brick wall on the front boundary of Mill Cottage thereby propelling a brick from the wall through a window in the house, and struck the Claimant’s Rover car which was parked in a driveway behind the wall.

Exercise 7A

1. On 18th February 2003 at about 10.20 am the Claimant was driving his Austin Metro car registration number C 147 PTC along King’s Drive, Chester, when the Defendant drove a peugeot 306 registration number M200 RLF from Brookside Avenue onto King’s Drive and into a collision with the Claimant car.

Clinical Negligence 12.1

4) The Operation was performed at the hospital on 12th July 2001 by the Second Defendant acting in the course of his employment by the First Defendant. During the Operation the median nerve branches to the ulna and residual side of the thumb and the radial side of the index finger were damaged and/or divided. This damage was not noticed by the Second Defendant during the Operation.

5) After the Operation the Claimant suffered from pain in the right hand and a loss of sensation in his right thumb and index and middle fingers, which did not correct itself. Therefore the Claimant underwent a second operation (‘the Second Operation’) at the Rutland Hospital on 13th September 2001.

6) At the Second Operation the damage caused to the median nerve during the Operation was discovered. Repair to the median nerve was no longer possible. Therefore a sural nerve was grafted from the outer aspect of the Claimant’s left ankle to bridge the gaps in the median nerve.

7) If the damage to the median nerve had been noticed at the Operation, it would have been possible to carry out an immediate repair and the Second Operation would not have been necessary.

Stage 3 the cause or cause of action:

Example 7.6

2) This accident was caused by the negligence of the Defendant.

PARTICULARS OF NEGLIGENCE

The Defendant was negligent in that she:

a)      drove too fast in all the circumstances,

b)      failed to stop at the traffic lights although the lights were at red,

c)      failed to give precedence to the Claimant at the crossing,

d)      failed to give any or any sufficient warning of her approach,

e)      failed to keep any or any proper look-out,

f)        failed to stop, slow down, steer or otherwise control her motor car so as to avoid hitting the Claimant.

Harrison:

1. The accident was caused by the negligence of the First Defendant, their employees or agents.

PARTICULARS OF NEGLIGENCE

The First Defendants, their employees or agents were negligent in that they:

a)      Serviced the lorry in accordance with the service manual for a Redland 800A lorry rather than an 800E lorry;

b)      Failed to obtain a copy of the service manual for a Redland 800E lorry;

c)      Used an inappropriate lubricant on the offside wheel bearing of the lorry. The lubricant used was too thin and evaporated, causing the offside wheel bearing to seize and the wheel to become detached from the lorry;

d)      Failed to appreciate that the 800E wheel bearing was not the same as an 800A wheel bearing and required a different lubricant;

e)      Failed to consult or to consult adequately the Redland 800E manual or otherwise as to the correct lubricant to use on the 800E wheel bearing;

f)        Over tightened the wheel bearing;

g)      Failed to appreciate the dangers of over tightening the wheel bearing;

h)      Failed to test or inspect the wheel bearing property or at all;

i)        Failed to discover or notice that the wheel bearing had been over tightened and /or that the wrong lubricant had been applied;

j)        Caused or permitted the offside wheel bearing to fail;

k)      Released the lorry to the Second Defendants without having undertaken any or any adequate steps to check the condition or safety of the lorry;

l)        Failed to service the lorry in a safe and proper manner.

2. Further or alternatively the accident was caused by the negligence of the Second Defendants, and in particular by the negligence of Henry Moss, the employee or agent of the Second Defendants, acting in the course of his employment.

PARTICULARS OF NEGLIGENCE

The Second Defendants by their employees or agents were negligent in that they:

a)      Failed to inspect the lorry property or at all before driving it or causing or permitting it to be driven on the day of the accident;

b)      Failed to observe and / or heed that the offside wheel bearing was insufficiently lubricated and / or was overtight and thus liable to seize;

c)      Caused permitted and / or suffered the wheel to become detached from the vehicle;

d)      Failed to observe or heed smoke and/ or noise coming from the offside front wheel of the lorry prior to the wheel becoming detached;

e)      Failed to notice that the wheel was becoming loose whilst the lorry was in motion;

f)        Drove or continued to drive the lorry when they knew or ought to have known that it was unsafe to do so.

Exercise 7c

4) These events were caused by the negligence of the Defendants their employees or agents.

PARTICULARS OF NEGLIGENCE

a)      Parking the lorry facing downhill on a steep slope.

b)      Failing to take any or any proper precautions to prevent the lorry running down the hill, by leaving it with reverse gear engaged or by placing chocks under its wheels or otherwise.

c)      Failing to engage the parking brake on the lorry fully or at all.

d)      Failing to maintain the parking brake on the lorry in proper working order.

e)      The Claimant will further contend that the events described in paragraph 3 above are sufficient in themselves to give rise to a presumption of negligence on the part of the Defendants.

Exercise 7A

2) This collision was caused by the negligence of the Defendant.

PARTICULARS OF NEGLIGENCE

The Defendant was negligent in that she:

a)      failed to observe or heed the presence of the Claimant’s car in King’s Drive

b)      failed to give precedence to the Claimant’s car at the junction

c)      attempted to turn right out of Brookside Avenue when it was not safe to do so

d)      failed to stop, steer or otherwise control the Peugeot car so as to avoid the collision.

Clinical Negligence 12.1

8) The Second Defendant was negligent during the Operation.

PARTICULARS OF NEGLIGENCE

a)      Causing or permitting damage to the branches of the right median nerve.

b)      Failing to take any or any adequate precautions to avoid damage to the median nerve.

c)      Failing to notice the damage to the median nerve.

d)      Failing to take any or any appropriate steps, whether by way of examination, test or otherwise, to discover whether any damage to the median nerve had occurred.

e)      Failing to carry out an immediate repair to the median nerve.

Stage 4: causation, loss and damage (particulars), injury and special damage:

Example 7.6

3. As a result of the accident the Claimant suffered pain and injury and sustained loss and damage.

PARTICULARS OF INJURY

a)      Shock and severe pain.

b)      Fracture to head of right femur.

c)      Fracture to mid shaft of right tibia and fibula.

d)      Bruising and operation scars to right hip.

The Claimant was born on 10th April 1977 and was 25 years of age at the date of the accident. She was taken by ambulance to the Accident and Emergency Department of the Middlesex Hospital where she was admitted for treatment. Her fractures were manipulated under general anaesthetic and fixed with wire. The Claimant was able to leave the hospital on 11 the May 2002 in a non-weight-bearing plaster. Healing was complicated and the Claimant was admitted on 17th June 2002 to St Thomas’s Hospital, London SE1 for treatment of an infection in the hip joint and for physiotherapy. The tibia and fibula fractures have united well. The injury to the femur has not healed satisfactorily and the Claimant is unable to walk distances exceeding half a mile and then only with the use of a walking stick. She is severely limited in her daily activities and had to resign from her job as an environmental health inspector for the Bluebridge Borough Council on 30th April 2003. The Claimant is restricted to sedentary employment. The Claimant’s disabilities are permanent. The Claimant is handicapped on the labour market.

Further particulars of the Claimant’s injuries are set out in the medical report of Dr Jane Philby served with these Particulars of Claim.

PARTICULARS OF SPECIAL DAMAGE

The special damages claimed by the Claimant are set out in the schedule of past and future expenses and losses served with these Particulars of Claim.

Harrison:

6) By reason of the negligence of the First and Second Defendants, the Claimant, who was born on 22nd April 1958, suffered pain and injury and sustained loss and damage.

PARTICULARS OF INJURY

a)      Avulsion of nerve roots of right upper brachial plexus from cervical vertebae

b)      Complete Erb-Duchenne Palsy of right arm

c)      Laceration below right eye

d)      Blow to the right temporal region of the head

e)      Bruising, pain and shock.

The Claimant, who was right handed, was rendered unconscious by the accident with a period of posttraumatic amnesia lasting 9 hours. He was taken to hospital where the laceration below the right eye received 1 suture. After 5 days an exploratory operation was performed on the right shoulder which revealed that the nerve roots of the upper brachial plexus had been avulsed from the 5th and 6th vertebrae with no prospect of regeneration of surgical repair. The Claimant was discharged from hospital after 30 days. He suffered and still suffers from headaches and double vision. He has entirely lost the use of his right arm and shoulder and his right hand is virtually useless. This disability is permanent. There is a risk of posttraumatic epilepsy.

The Claimant suffered emotional shock and depression, disturbed sleep and loss of interest in sexual relations with his wife. There is a risk of recurrence. The Claimant can no longer drive, and has had to learn to use his left hand. He lost his job as Sales Director with Ambridge Artificial PLC as a result of the accident and is now running a consultancy business from his home. The Claimant is handicapped on the open labour market.

Full details of the Claimant’s medical condition is contained in the medical report of Dr A Jones attached to these Particulars of Claim.

PARTICULARS OF SPECIAL DAMAGE

A Schedule of Past and Future Loss and Expense is attached.

Exercise 7C

5. As a result of the matters set out above of the Claimant has suffered loss and damage.

PARTICULARS OF DAMAGE

i) Repairs to Rover motor car                                                                            $3026.70

ii)Repairs to wall                                                                                               $587.85

iii)Replacement of broken window (double glazed)                                            $430.50

$4045.05

Exercise 7A

3. As a result of the collision the Claimant suffered pain and injury and sustained loss and damage.

PARTICULARS OF INJURY

a)      Injury to left ankle

b)      Cuts, scratches and bruises

c)      Pain and shock

The Claimant was born on 27th March 1930 and was aged 72 at the date of the accident. He suffered a considerable degree of shock and was unable to go out for about 2 weeks after the accident. Before the accident he was a keen driver, but he is now afraid to drive a car and is unlikely ever to drive again.

Further particulars of the Claimant’s injuries are set out in the medical report served with these Particulars of Claim.

PARTICULARS OF SPECIAL DAMAGE

The special damages claimed by the Claimant are set out in the schedule of loss and expense served with these Particulars of Claim.

Clinical Negligence 12.1

9. As a result of the negligence of the Second Defendant the Claimant has suffered pain, injury, loss and damage.

PARTICULARS OF INJURY

1)      Damage to the right median nerve.

2)      Sensory deficit in the right hand.

3)      Partial loss of function in the right hand.

4)      Operation scar to the left ankle.

5)      Loss of sensation in the left little toe.

The Claimant, who is right handed, and was born on 26th May 1956, regained some sensation and use of his right hand after the Second Operation, but is handicapped in his day-to-day activities and social life. He is dependent on his wife’s assistance for domestic chores. Full details of the Claimant’s injuries, current situation and prognosis are set out in the medical report of Mr Ivor Hope served with these Particulars of Claim. If the median nerve had not been damaged, he would not have suffered any lasting or significant injury to his right hand. If the damage had been discovered and repaired during the Operation, the outcome and prognosis would have been significantly better.

The Claimant was self-employed running a dry cleaning franchise, but has had to give up this work and is currently unemployed. He is handicapped on the labour market.

PARTICULARS OF SPECIAL DAMAGE

Full details of the special damages claimed are set out in the schedule of expenses and losses served with these Particulars of Claim.

Stage 5: the claim for interest

Example 7.6

4. Further the Claimant claims interest under section 35A of the Supreme Court Act 1981 on the amount found to be due to the Claimant at such rate and for such period as the Court thinks fit.

Harrison:

Further the Claimant claims interest upon such damages as may be awarded to him pursuant to the provisions of Section 35A of the Supreme Court Act 1981.

PARTICULARS OF INTEREST

a)      Interest is claimed on general damages for pain suffering and loss of amenity at the rate of 2% per annum from the date of service of the Claim From until the date of judgment;

b) Interest is claimed on special damages from the date of the accident at half the Special Account rate prescribed from time to time under the provisions of the Court Fund Rules 1987, namely …% from…to…amounting to $ ….at …(insert date of issue of claim form) and continuing until trial or sooner judgment at the daily rate of $….Alternatively interest is claimed at such rate and for such period as the Court thinks fit.

Exercise 7C

Further the Claimant claims interest pursuant to section 69 of the County Courts Act 1984 on the sum of $4045.05 from 27th June 2003 at the rate of 8% per annum, amounting to $ (  ) at (date), and then continuing until judgment or sooner payment at the rate of $0.89 per day.

Exercise 7A

4.Further the Claimant claims interest under section 69 of the County Courts Act 1984 on the amount found to be due to the Claimant at such rate and for such period as the Court thinks fit.

Clinical Negligence 2.1

10. Further the Claimant claims interest under section 35A of the Supreme Court Act 1981 on the amount found to be due to the Claimant at such rate and for such period as the Court thinks fit.

Stage 6: the remedies sought

Exercise 7.6

AND the Claimant claims:

(1)   Damages.

(2)   Interest under section 35A of the Supreme Court Act 1981 to be assessed.

XXXX

STATEMENT OF TRUTH

Dated etc.

Harrison

Same Ex 7.6

Exercise 7C

AND the Claimant claims:

(1)Damages of $4045.05

(2)Interest on the sum of $ 4045.05 under section 69 of the County Courts Act 1984, amounting to $(  ) at (date), and continuing at the daily rate of $0.89.

XXXX

STATEMENT OF TRUTH

Dated etc.

Exercise 7A:

AND the Claimant claims:

(1)Damages.

(2)   Interest pursuant to section 69 of the County Courts Act 1984 to be assessed.

XXXX

STATEMENT OF TRUTH

Dated etc.

Clinical Negligence 2.1

AND the Claimant claims:

(3)   Damages.

(4)   Interest under section 35A of the Supreme Court Act 1981 to be assessed.