Court of Appeal
Appeal against the decision of HHJ Owen refusing the appellant from amending his statement of claim during the trial of the action. The appellant was born on 1 November 1985. On 5 March 1989 he was admitted to the Bristol Children's Hospital and was diagnosed to be suffering from a rare cancer affecting his liver. Following exploratory surgery two doses of the appropriate medication, Vincristine, were given at an interval of three days. The appellant also underwent chemotherapy. On 20 March 1989 the appellant evinced serious neurological damage. It was the appellant's case against the first defendant that he should have made an earlier referral to hospital which would have led to a sufficiently early diagnosis for the hospital not to have felt it necessary to give the doses of Vincristine in such proximity. The appellant's case against the hospital was that the second dose of Vincristine was given too soon after the first and that radio therapy should not have been administered. The issue arose during the cross-examination by the appellant of one of the second respondent's expert witnesses. The witness referred to a standard textbook of paediatric oncology which supported the second defendant's defence; consequently the appellant discontinued his claim against the second defendant. The appellant applied to amend his statement of claim. The judge ruled against the proposed amendment, having considered the potential injustice to the plaintiff and defendant, concluding that it was necessary to 'retain the discipline of pleadings'. The appellant argued that the judge's refusal was unreasonable since his case against the first respondent remained substantially the same that had he not failed in his duty the tumour would have been detected earlier. The first respondent argued that to allow the amendment would cause injustice on an economical and evidential basis and to Dr Maken personally.
HELD: (1) The general principles were referred to in Gale v Superdrug Stores Plc (1996) PIQR 330. Justice required that mistakes were put right even if there was consequential delay but only if the other side did not suffer injustice that could not be compensated by an adjournment and/or costs. (2) In the circumstances the first respondent would suffer prejudice. (a) The Medical Defence Union had already spent in the region of #200,000 in defending the action. (b) The first respondent would have had to defend a different case and prove that a reasonably competent general practitioner would have acted in the way that he did. (3) The judge had been sympathetic to the plaintiff. This application was made three weeks after the trial began and on the week after the close of the plaintiff's case. Litigation should not proceed in this manner and regard must be had to the injustice caused to the defendant. Appeal dismissed.
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