Drafting- Particulars of Claim ,The High Court of Justice

IN THE HIGH COURT OF JUSTICE Claim No 2003 HC 7401

QUEEN’S BENCH DIVISION

BETWEEN

ALISTAIR GREATBATCH                                        Claimant

and

(1)HENRY WILLIAMS

(2) SCOTT WILLIAMS (a firm)                                Defendants

Elsa LyonPARTICULARS OF CLAIM

IN THE WINCHESTER COUNTY COURT Claim No WCA/

CLINICAL NEGLIGENCE

BETWEEN

ELSA LYON                                                           Claimant

and

(1)IAN PHILPOTT

(2) LINDSAY LORD (Female)                                Defendants

PARTICULARS OF CLAIM

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

Example 9.10

1.The First Defendant is a chartered surveyor and valuer and is a partner in the Second Defendants who are a firm of surveyors, estate agents and valuers who carry on business from their offices at 21 Dean Street, London W1. At all material times the Defendants held themselves out as experienced, skilled and competent surveyors and valuers.

Elsa Lyon

1. At all material times the First Defendant was a Consultant Plastic Surgeon and the Second Defendant a Registrar Plastic Surgeon practising at various hospitals including St Luke’s Hospital, Basingstoke, and both Defendants held themselves out as skilled experienced and competent in plastic surgery and post-operative treatment following such surgery.

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

Example 9.10

2. In about February 2003 the Claimant was contemplating the purchase of a freehold house at 10 Elm Avenue, London SW1 (‘the House’) and on 21st February 2003 at the Defendants’ offices orally instructed the First Defendant for a fee to survey and value the House and to advise him about its structure and condition, which the First Defendant on his own behalf or on behalf of the Second Defendants agreed to do. The agreement is evidenced in writing by the Defendants’ invoice No 0287 dated 14th March 2003, a copy of which is attached.

3. The First Defendant knew at the time of the agreement that the Claimant would rely on his survey, advice and valuation in deciding whether to purchase the House and if so at what price.

4. It was an implied term of the agreement that the First Defendant in surveying and valuing the House and in advising the Claimant would exercise all reasonable care and skill to be expected of an experienced, skilled and competent surveyor and valuer. Further or alternatively the Defendants owed the Claimant a duty to exercise such care and skill.

5. The First Defendant in performance of the contract surveyed or purported to survey the House and by a written report (‘the Report’) to the Claimant dated 14th March 2003 advised the Claimant that (apart from certain minor defects set out in the Report) the House was of substantial construction, was structurally sound and in good condition, and valued it at $175,000. A copy of the Report is attached.

6. In reliance on the Report and valuation, by exchange of contracts on 14th April 2003 the Claimant bought the House for $175,000.

7. In fact the House was at all material times structurally unsound and in a defective condition in the respects set out in the schedule attached to these particulars of claim.

Elsa Lyon

2. In relation to all matters pleaded in these Particulars of Claim, the First Defendant, further or alternatively the Second Defendant, owed a duty of care to the Claimant to exercise the care, skill and competence to be expected of a skilled, experienced and competent consultant plastic surgeon and/or registrar in plastic surgery, and knew or ought to have known that any failure on their part to do so would or might result in injury or disability to the Claimant.

3.At all material times, the Claimant suffered from a chronic pre-existing condition known as psoriasis.

4.In November 2000 the Claimant was referred to the first Defendant for the possible removal of a tattoo on her left forearm.

5. The Claimant had a consultation with the First Defendant on 17th January 2001 at Andover General Hospital. The First Defendant advised the Claimant that the tattoo could be successfully removed by surgical procedure leaving her with a minor scar on her arm (‘the advice’).

6.In giving the advice, the First Defendant was aware that the Claimant suffered from psoriasis, having been made so aware by the Claimant’s General Practitioner, and by the Claimant during the course of the consultation.

7. On 17th January 2001, in reliance on the advice given to her by the First Defendant, the Claimant entered into an oral agreement with the First Defendant to carry out the proposed surgery for a fee of $1,500.

8.It was an implied term of the agreement that the First Defendant would, in advising the Claimant as to her proposed surgery, in performing the operation, and in providing all necessary post-operative care, exercise all due skill and care to be expected of a skilled experienced and competent consultant plastic surgeon. Further or alternatively the First Defendant owed the Claimant a duty of care to the same extent.

9. The operation was performed on 24th January 2001 by the Second Defendant, the First Defendant’s employee or agent, who also provided or supervised all of the Claimant’s post-operative treatment.

10.At no time prior to the operation being carried out, was the Claimant advised by the First Defendant, further or alternatively the Second Defendant, that if the tattoo ink had deeply penetrated the sub-cutaneous fat, then the operation could leave a significant scar in place of the tattoo.

11. On 7th February 2001 the Claimant attended the First Defendant’s out-patient clinic at Andover General Hospital. She was attended by the Second Defendant, who removed the bandages and advised the Claimant that an infection had set in at the donor site. The Second Defendant then prescribed a course of penicillin (Magnapen), to which the Claimant developed an allergic reaction; namely she developed lumps all over her body and had difficulty in breathing.

12. The claimant attended the out-patient’s clinic on other dates which she cannot at present specify, and on each occasion she was attended by the Second Defendant. The Second Defendant prescribed various medications, including Torasco, and other poly-tar products, which caused a severe recurrence of the Claimant’s pre-existing psoriasis condition from which she had been suffering no clinical symptoms prior to the operation.

13.As a result of the operation the Claimant has an area of scarring on her arm, measuring 4.5 inches by 3.5 inches, which is puckered in appearance. She also has a large patch of scarring on her left thigh.

Stage 3 the cause or cause of action:

Example 9

8. In giving the Report and valuation referred to above the Defendants were in breach of the implied term of the agreement and /or the First Defendant was negligent in that:

PARTICULARS OF NEGLIGENCE

(a)    He failed to inspect the House properly or at all.

(b)   He failed to observe the defects in the House set out in the schedule or any of them.

(c)    He failed to advise the Claimant of those defects fully or at all.

(d)   He gave a value for the House, which did not take account of all its defects.

(e)    He failed in all the circumstances to exercise the care and skill to be expected of a competent surveyor and valuer.

Elsa Lyon

14. As a result of the matters set out above, the First Defendant was in breach of the implied term and / or negligent.

PARTICULARS

The First Defendant was negligent and/or in breach of agreement in that he:

(a)    failed to advise the Claimant that the removal of the tattoo could leave her with an unsightly scar on her arm;

(b)   advised her that she would be left with minor scarring on her arm;

(c)    failed to advise the Claimant that if she had the operation there might be a recurrence or an exacerbation of psoriasis;

(d)   left the surgical procedure to be undertaken by the Second Defendant unsupervised when he knew or should have known that she was insufficiently experienced to carry out the operation;

(e)    failed to supervise the operation himself or to ensure that someone of sufficient experience was available to supervise it;

(f)     failed himself to take care of the Claimant after the operation, or to ensure that she had suitable consultant care available in addition to the care provided by Second Defendant.

15. Further or alternatively, as a result of the matters set out above, the First Defendant was in breach of the implied term and /or was negligent by his employee or agent the Second Defendant, and the Second Defendant was negligent.

PARTICULARS

The First Defendant, by his employee or  agent the Second Defendant, further or alternatively the Second Defendant:

(a)failed to advise the Claimant on 24th January 2001 of the risk of significant scarring to her arm and/or thigh;

(b)failed to advise the Claimant on 24th January 2001 that the operation could cause a recurrence or exacerbation of psoriasis;

(c) On 24th January 2001:

(i)             removed too much sub-cutaneous fat from the Claimant’s arm at the site of the tattoo, particularly in the area around, rather than immediately underneath the tattoo;

(ii)             removed too much skin from the Claimant’s thigh for the purposes of providing donor material for the skin graft;

(iii)            failed properly after the operation to ensure that both the operation and the donor sites were protected  from infection;

(d) On or after 7th February 2001:

i.                failed to obtain the Claimant’s medical notes;

ii.               failed to take a full medical history from the Claimant, and in particular failed to ask the Claimant if she was allergic to penicillin;

iii.              prescribed penicillin (Magnapen) when she knew or should have known that the Claimant was allergic to it;

iv.               prescribed Torasco and other poly-tar products without ensuring that they were suitable for the Claimant to use;

v.           failed to advise the Claimant to test the Torasco and other poly-tar products on a small area of skin to determine whether she suffered any adverse a=reaction before using them over her whole body;

vi.               failed to give the Claimant any or any sufficient training or advice on how to safely apply the Torasco or other poly-tar products.

(e) In the premises failed to take any or any adequate or timely steps to properly treat the Claimant thereby exposing her to a foreseeable risk of pain, injury, loss and damage.

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

Example 9:

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

PARTICULARS OF DAMAGE

The actual value of the House at the date of the Report was no greater than $125,000. The Claimant has accordingly suffered loss of at least $50,000.

Elsa Lyon

16. In consequence of the matters set out above the Claimant has sustained personal injury and has suffered loss and damage.

PARTICULARS OF INJURY

(a)    Itchiness, pain and discomfort

(b)   Unsightly scarring to left forearm and thigh

(c)    Recurrence of pre-existing condition of psoriasis

The Claimant was born on 1st June 1955. A medical report by Mr F Ray, consultant dermatologist, giving particulars of the Claimant’s condition and prognosis is served with these Particulars of Claim. The Claimant is handicapped on the labour market.

PARTICULARS OF SPECIAL DAMAGE

The special damages claimed by the Claimant are set out in the Schedule of Past and Future Expense and Loss served with these Particulars of Claim.

Stage 5: the claim for interest

Example 9

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.

Elsa Lyon

17.Further the Claimant claims interest pursuant to section 69 of the County Courts Act 1984 on such damages as she may be awarded by the Court at such rate and for such period as the Court thinks fit.

Stage 6: the remedies sought

Exercise 9

AND the Claimant claims:

(1)   Damages.

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

XXXX

STATEMENT OF TRUTH

Dated etc.

Elsa Lyon:

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.

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