Particulars of Claim- Thompson V Brightwell & Bryant-professional negligence PDF

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Summary

This particulars of claim is based on professional negligence- detailing the terms of the agreement, express and implied terms, the issue with services provided, amount owed, particular of breach and particulars of loss and damage in relation to finance....

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IN THE COUNTY COURT

Claim No.:

BETWEEN MR HEATH THOMPSON Claimant -andBRIGHTWELL & BRYANT (a firm) Defendant _______________________________ PARTICULARS OF CLAIM _______________________________

1. At all material times, the Claimant was an employee at The Furniture Co Ltd and the operator of his own carpentry business. The Defendant is a firm of solicitors specialising in personal injury litigation, practising from 21 Windsor Street London W15 5DV (“The Office”). 2. In or about 6 August 2014, the claimant was on duty at the warehouse of the Furniture Company Limited (“The Employer”). His job was primarily to unload the furniture packs at the end of the conveyor belt and to load it onto the lorry, while his fellow operative, Mr Rajesh Patel, was in charge of the other end of the belt, namely to send the packs down to him. 3. In process of lifting the furniture pack off the conveyor belt and handing it over to lorry driver, Mr Patel had sent down the next pack before the Claimant had made the necessary signals, as his vision of the Claimant was blocked by the furniture packs piling up all over the warehouse. There was no steel guard fitted to the end of the conveyor belt. As a result, the furniture pack hit the Claimant’s right leg from behind and caused him to fall to the ground and struck his knee. The Claimant had suffered personal injury and loss and the accident has resulted in Claimant not being able to work for full 6 months.

4. The Claimant’s injury was made during his course of employment and was caused by the negligence of the Employer, its employees or agents.

PARTICULARS OF NEGLIGENCE OF ORIGINAL DEFENDANT The Employer, its employee or agents were negligent in that they: (a) Failed to instruct or train its employees, including the Claimant on how to undertake their work safely; (b) Failed to provide any supervision to ensure work was undertaken safely; (c) Failed to give any adequate warning to the Claimant that the furniture pack was being sent down the conveyor belt; (d) Loaded the furniture pack onto the conveyor belt before the Claimant made signals to confirm that he was ready to handle with it; (e) Failed to fence off or put a guard around the conveyor belt or take any adequate steps to ensure that the furniture pack did not fall odd the end of the conveyor belt; (f) Failed to provided or maintain a safe working plant and equipment; (g) Failed to implement a safe system of work for its employees; (h) Failed to provide a safe working environment; (i) Exposed the Claimant to a foreseeable risk of injury. 5. As a result of the negligence of Employer, the Claimant has suffered personal injury loss and damage. PARTICULARS OF INJURY The Claimant was born on 5 May 1971 and was aged 43 at the time of the accident. On examination, the Claimant’s right knee was found to be badly swollen, the ligaments in his knee were sprained and there was small tear in the cartilage of the right knee and evidence of haemarthrosis (bleeding into the knee joint). His knee was bandaged up and was advised to avoid undertaking any work for 6 weeks. He attended physiotherapy sessions regularly over the course of 3 months and had finally made full recovery on 23 January 2015. Further particulars of the Claimant’s medical condition are contained in the medical report of Tom Clancey dated 26 May 2017, attached to these Particulars of Claim. PARTICULARS OF SPECIAL DAMAGE The special damage sought by the Claimant could be found in the Schedule of Past and Future Loss and Expense, served together with this Particulars of Claim.

6. On 5 December 2018, the Claimant consulted Tom Bryant, one of the partners in the firm at the Office and instructed him as agent for the Defendant to act for him in connection with his claim for personal injury against the Employer (“The First Meeting”). Mr Bryant had expressly agreed to act for the Claimant on the Defendant’s behalf. On the same day itself, the Claimant had paid £500 to the Defendant on account of costs. 7. It was an implied term of the Defendant’s retainer by the Claimant that the Defendant would, at all material times, exercise reasonable skill, care and diligence while acting as the Claimant’s solicitors. 8. Furthermore, the Defendant was aware that the Claimant was relying on his skill and expertise and in the circumstances, the Defendant owed the Claimant a duty of care in tort.

9. Pursuant to the terms of the retainer, the Defendant commenced action against the Employer. The first action was taken by the issuance of a Claim Form on 26 July 2019, in the County Court, Claim no. EYJ45567. The Particulars of Claim was served much later on 5 August 2019. 10. During the First Meeting, the Claimant briefed the Defendant about the details of the accident, his injuries and his loss of earnings and made express representation on his limited disposable income to the Defendant. The Claimant had made it clear that he wanted to be fully informed of the costs on the case at all times and the Defendant had explicitly reassured him of his professional duty owed to him. The Defendant told him that he would send a few letters to employers and insurance company and would make attempts to settle first with the Employer. 11. However, during the period between 5 December 2018 and early March 2019, the Defendant did not return any of the Claimant’s phone calls, despite the latter’s numerous efforts to reach the Defendant for an update on the case.

12. It was only until early March 2019 that the Defendant telephoned the Claimant back to request another £500 from the Claimant. There seemed to be no significant progress made on the case. 13. The next meeting with the Defendant took place on 5 April 2019 at the firm, for the purpose of preparing a more detailed statement. The Claimant provided the Defendant the contact details of Mr Patel and, the lorry driver Jack Barry, a clear account of his loss of earnings from his employment and his carpentry business and also, the expenses of the physiotherapist and the relevant travel expenses for his treatment. However, there seems to be no evidence to suggest that the Defendant did attempt to contact these witnesses or to obtain statements from them. At this meeting, the Defendant requested another £500 from the Claimant on account of his costs. 14. On 24 May 2019, the Claimant attended the arranged appointment with the Orthopaedic Surgeon at St Luke’s Hospital in Islington. The Claimant paid £600 for the copy of Mr Clancey’s medical report at the Defendant’s suggestion. 15. No updates were conveyed to the Claimant until July 2017. On 26 July 2019, the Defendant informed the Claimant by writing that the negotiations with the Employer had been unsuccessful and they will not issue proceedings against the Employer. The Defendant did not send any notifications on the process or result of the past negotiations or even the claim served on behalf of the Claimant, but merely reassured the Claimant that he would be in touch again to if there was an offer on the table. At no times did the Defendant notify the Claimant of the 3 years limitation period for claim of personal injuries. The Defendant also made no mention of him issuing the claim form just over a week before the expiry of the limitation period. 16. The Claim Form was served by first class post on 1 August 2019 and was deemed to be served on 5 August 2019. Following the issue of claim form, a series of events took place but all of which were undertaken without the knowledge of the Claimant.

17. On 16 August 2019, the Employer had filed an acknowledgment of receipt in response to the Claim Form. By virtue of CPR r. 7.4, the Particulars of Claim should

have been served within 14 days after service of the Claim Form and no later than the latest time for serving the Claim Form. It was clear that the Defendant did not serve the Particulars of Claim to the Employer within 14 days after service of the Claim Form. On 3 September 2019, the Employer’s solicitors did write to the Defendant to inform him of the expiry of the time to service the Particulars of Claim and reminded the Defendant to serve as soon as possible, or if not they will make an application to court. 18. The Defendant did not heed the reminder given by the Employer’s solicitor and the latter then applied to court on 8 November 2019 to require the Claimant to serve the Particulars of Claim. On 18 November 2019, the District Judge who heard the application gave a few case management directions: (i) The Claimant file and serve the Particulars of Claim by 4pm on 3 December 2019, otherwise the Claim would be struck out; (ii) Each party was to give standard disclosure to the other party by list; (iii) The latest date for delivery of the lists was by 4 pm on 16th December 2019; (iv) Requests for inspection or copies were to be made by 4pm on 23rd December 2019; (v) Witness statements of fact were to be exchanged simultaneously by 4pm on 13 January 2020.

19. The Defendant managed to serve the Particulars of Claim before the deadline, namely on 22 November 2019. On 3 December 2019, the Employer filed a defence admitting negligence and put to the Claimant to prove causation and the extent of losses claimed. It was apparent from the reply that the Employer did not seek to dispute liability but merely disputing the quantum. However, the Employer’s response was not conveyed to the Claimant at all. After serving the Particulars of Claim, the Defendant did not take any actions in relation to the case. 20. Aside from Direction (i), the Defendant failed to comply with the rest of the directions given by the court on 18 November 2019, without seeking any instructions or information from the Claimant. On 20 December 2019, 6 and 13 January 2020, the Employer’s solicitors had written to the Defendant to request for

disclosure of documents by list and to exchange witness statements. On the last correspondence dated 20 January 2020, the Employer’s solicitor reminded the Defendant to serve disclosure of documents and witness statement immediately and informed that they will file an application to strike out the claim if the latter did not do so promptly. However, the Defendant still made no actions or response to these correspondences, being aware that the deadlines to submit the list of documents and to exchange the witness statements have passed . None of these correspondences were being notified to the Claimant.

21. On 21 February 2020, the Employer’s solicitor made an application to the Court to strike out the Claimant’s claim under CPR 3.4. The decision to strike out was made on 27 March 2020. 22. During the period between 26 July 2019 and 11 May 2020, there were no updates from the Defendant until the latter wrote to the Claimant on 11 May 2020 as to inform him that his claim was struck out by the court and the Claimant was ordered to pay the other’s side costs. 23. The matters stated above were caused by the Defendant’s negligence and/ or breach of the terms of their contract. PARTICULARS OF BREACH a) Failed to heed terms of the Pre-Action Protocol for Personal Injury claims; b) Failed to engage and pursue negotiations properly; c) Failed to take necessary steps to contact witnesses or to obtain statement from them; d) Failed to notify the Claimant on the updates of the case periodically; e) Failed to notify the Claimant of the limitation period of a personal injury claim; f) Failed to inform the Claimant that the issue of Claim Form was undertaken just a week before expiry of limitation period; g) Failed to provide any adequate advice on issuing claim before limitation period; h) Failed to serve the Particulars of Claim within 14 days after service of Claim Form; i) Failed to comply with the directions given by the District Judge;

j) Failed to inform the Claimant as to the order made by the District Judge and warn him of the consequences of failing to comply to the directions; k) Failed to seek instructions from the Claimant as to the admission of liability of the Employer; l) Failed to respond to the Employer’s Solicitor’s request for disclosure of documents by list and exchange of witness statement; m) Failed to take any adequate steps to avoid the claim from being struck out; and n) Failed to immediately advise the Claimant of the order striking out his claim. 24. By reason of the matters stated above, the Claimant has suffered loss and damage. PARTICULARS OF LOSS (i) Cost of first proceedings, including the Employer’s

£

4,200

Employer’s assessed costs and the Claimant’s own costs and expenses (ii) Loss of opportunity to sue the Employer

£ 28,000

(iii) Costs on account paid to the Defendant

£

1,500

(iv) Costs for medical report as suggested by Defendant

£

600

TOTAL

£ 34,300

25. Further the Claimant claims and is entitled to recover interest pursuant to section 69 of the County Courts Act 1984 on the damages found due at such rate and for such period as the Court shall think fit.

And the Claimant claims: (1) Damages; (2) Interest pursuant to Section 69 of the County Courts Act 1984

MONICA GREEN STATEMENT OF TRUTH etc. Dated etc....