On 8 August 2008 the D carried out a CT scan on C and failed to report on a mass on the left lobe of the liver. In early 2012 the mass was identified as a malignant tumour…
C alleged that Defendant had been negligent in failing to identify and to report on the mass; in failing to undertake a Contrast Enhanced CT study once the mass had been identified; and in failing to inform the Claimant’s GP. It was further alleged that detection of the mass in 2008 would have occasioned further investigation; that on the balance of probabilities, a diagnosis of (benign) hepatocellular adenoma (“HCA”) would have been made; and that the lesion would have been managed with surgical resection which was likely to have been successful.
D admitted breach of duty but stated by 2008 the tumour was already a well differentiated carcinoma.
D sought permission to appeal the order that D pay C £100,000 interim damages.
CPR 25.7(1)(c) provides:
The court may only make an interim payment where any of the following conditions are satisfied -…
(c) it is satisfied that, if the claim went to trial, the Claimant would obtain judgment for a substantial amount of money (other than costs) against the Defendant…
The court had to judge the matter on the basis of the evidence before it. C had served evidence in support of the application, and D had chosen only to serve some limited evidence in response to the application…
“… it seemed to me to be clear that Master Cook was right to conclude that he had to decide the application on the evidence before him. It was also clear that, on that evidence, he was entitled to conclude that, absent any evidence of reasons to the contrary, the evidence of Professor Middleton was compelling, and thus to conclude, as he did, that the Claimant had proved, to the requisite standard, that the conditions in CPR 25.7─(1)(c) were met.” (paragraph 48)
“…the proposed appeal had (and still has) no real prospect of success…” (paragraph 50)
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