Ebden v Richardson [2008] EWCA Civ 1589

[2008] EWCA Civ 1589Case No B3/2008/0518
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE
(HIS HONOUR JUDGE WALTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 10 th November 2008
Before
LORD JUSTICE MOSESLADY JUSTICE HALLETTSIR WILLIAM ALDOUS
Between
EBDENAppellantRICHARDSONRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Jackson (instructed by Messrs Tait Farrier Graham) appeared for Appellant.Mr J Donovan (instructed by Messrs Irwin Mitchell) appeared for Respondent.
Judgment
[1]This is an appeal against a decision of HHJ Walton of 31 January this year, 2008, at the Newcastle-Upon-Tyne Combined Court Centre. It arises out of an award he made of damages in respect of a serious assault by the appellant, the defendant in the proceedings, whom I shall call Anthony Richardson. He was the respondent Robert Ebden’s brother in law. On 6 February 2005 he attacked him with timber and struck him on the head when Robert Ebden was 57. As might be expected, Robert Ebden suffered serious head injury. Anthony Richardson pleaded guilty to causing grievous bodily harm with intent and was sentenced to four-and-a-half years in prison. This is relevant because, by the time it came for the judge to consider an award of damages, he was acting in person although in prison. The claim was started in January 2006. It was heard, as I have said, on 31 January 2008, but by that time the defendant, Anthony Richardson, was in person because his solicitors had come off the record some ten days before on 21 January 2008.[2]The appeal raises two issues which are linked. Firstly, whether the judge fell into appealable error in refusing an adjournment so that the defendant could obtain DVLA records as to the ability of Robert Ebden to work as a taxi driver. The second issue it raises relates to the assessment by the judge of the damages, particularly in relation to the future cost of care. The judge had awarded Robert Ebden damages for total of £331,073.76. That was broken down in the following figures: £50,000 with interest of just over £2,000 for general damages; past loss of earnings £40,876.95; past care £22,169.84; interest on past losses £5,594.32; future loss of earnings £38,500.60 and £170,000 for future care. It is that last figure which is of particular relevance in the appeal.[3]In his oral judgment, of which we have the transcript, the judge described the claimant Robert Ebden’s past life. He was fifty-seven at the time of the attack and had been employed as a taxi driver, although in the past he had worked as a painter, decorator, bus conductor and drayman. He bought a milk round which he ran for about twenty years, but had had to give that up due to a condition -- of course not connected with the attack -- a condition that caused him pain in the neck, back and limbs with increased levels of fatigue, known as fibromyalgia. As a result of the attack, he suffered, as I have already indicated, a severe head injury flowing from multiple scalp lacerations and temporoparietal fractures of the skull with right-sided brain contusions and associated cerebral odoema. He had required an emergency craniotomy and evacuation of the contusion to the right frontal parietal area. He gradually improved and was discharged about a month later, although he had suffered from considerable post-traumatic amnesia.[4]As a result of the head injury, by some twelve months after the incident his personality had changed. He suffered from increased forgetfulness, loss of concentration and distractibility, difficulties in what is called multi-tasking, slowness of thought processes, emotional and behavioural problems, irritability, depression, anger, frustration and what is described as intermittent low mood.[5]It is of particular note for the purposes of this appeal that Dr Priestley, a consultant clinical neuro-psychologist, a joint expert, had referred during the course of undertaking tests to the failure of Robert Ebden to exert himself during the tests and achieve what he was capable of. It is also of note that, contrary to that doctor and other doctor’s expectations in November 2006, the claimant had succeeded in starting work, although only part-time, as a taxi driver.[6]Anthony Richardson, the defendant, and his solicitors only learnt of the successful return to work of the claimant in October 2007. When the solicitors then acting for the defendant learnt that Robert Ebden had gone back to work as a taxi driver they naturally sought disclosure of the application (known as the DVLA application) and medical records by which the claimant had persuaded the relevant authorities to allow him to work again as a taxi driver.[7]On 9 November the solicitors then acting wrote, noting that he had been able to continue working, and requested what they called “correspondence and other relevant documentation passing between your client and the DVLA and local authority”. The response from solicitors acting for the claimant was to say:
“We confirm that we are in the process of obtaining our client’s DVLA records and will forward a copy to you as soon as we are in receipt of them. We are unlikely to be in possession of our client’s DVLA records by 16.11.07. Please bear with us a little longer.”
No records were forthcoming.[8]Accordingly, on 20 December 2007, when the solicitors acting for the defendant were still awaiting a schedule of loss, they wrote, in relation to the schedule which they did have, that they noted that the claimant had applied for a new license and:
“…require[d] urgent disclosure of the application and the medical report produced by the examination. Please let us have copies of these documents as soon as possible.”
No documents were forthcoming; indeed there was no reply whatever, and by the time the Christmas period had passed the solicitors acting for the defendant had come off the record, on 21 January 2008, because there were insufficient funds.[9]At the hearing on 31 January 2008 Anthony Richardson, acting for himself, was still in prison and was clearly therefore handicapped in the conduct of his case. But he sought disclosure of the DVLA records that had been promised but which had not been forthcoming. He took the view that those records might cast light on the true nature of his brother-in-law, the claimant’s, continuing symptoms and particularly as to his prospects for the future. He relied particularly on three grounds for the adjournment. Not only had he not received the DVLA records which he required and which, at least hitherto, the claimant’s own solicitors had acknowledged were relevant, but he also sought an adjournment so that he could cross-examine Dr Priestley, whose fresh report dated 23 January 2008 had, very shortly before the hearing, been delivered to him. Thirdly, he complained at the difficulties which he suffered in conducting his own case whilst serving a term of imprisonment.[10]The judge rejected all three grounds. I can dismiss two of them without any lengthy exegesis. Sensibly, counsel, Mr Donovan, who appears also before us, realised the disadvantage into which the defendant had been placed by the recent report from Dr Priestley; he therefore disavowed any intention to rely upon it. He pointed out that the defendant had had solicitors and was in a good position, having regard to the only live issues which remained to represent himself; and he suggested this to the judge -- namely that the solicitors acting for the claimant had obtained a form of authority, sent it to the DVLA but no records had been received back. He pointed out to the judge, as he contended, that the issue had not been pursued by the solicitors then acting for the defendant after the initial request, and thus there had been no urgent or focussed attempt to obtain those reports before the trial.[11]On the basis of those submissions the judge refused the adjournment. I have already dealt with the points relating to Dr Priestley’s supplementary report and the fact that the defendant was acting in person. The judge continued in relation to the DVLA records as follows: “I am told that a form of authority was provided by the Claimant’s solicitors. However, the Defendant’s solicitors did not pursue the issue. Those solicitors were on the record until the last couple of weeks. I must balance any hardship to the Defendant against the need to preserve a trial date which has been fixed for a lengthy period of time. The Defendant concedes the fairness of the report of Dr Priestley. In the circumstances I am not persuaded that these documents are of such evidential significance as to give a sufficient reason to adjourn the trial.” [Notes of judgment approved by the judge] In fact, as I have already pointed out, the authority had never been sent. The judge was seriously misled in being told that the authority had been sent but the records had not emerged. Moreover, he was further seriously misled by being told that the solicitors acting for the defendant had only made one request for the DVLA records before they came off the record. That was not correct because, as I have pointed out, a second written request was made and had never been answered.[12]It is trite that this court will not interfere with the decision of a trial judge in relation to an adjournment unless that decision discloses an error of principle, a failure to take into account some relevant and significant feature, or the judge reached a conclusion out with the range of reasonable response to the question as to whether the case should be adjourned. But in this case the judge was misled; therefore in my view it is necessary to consider, in the light of that significant error, the effect of the absence of the DVLA records in the context of the case and the medical evidence as a whole.[13]In a report dated 2 August 2006 the consultant neurologist Timothy Walls had spoken of the abilities of the claimant to return to work. He recommended a reassessment by a neuropsychologist and that was to be Dr Priestley, but he said, noting that he was medically unfit at the time to hold a driving licence, that the situation was complicated. He pointed out that hackney licence holders not only have to have a standard driving licence but a separate medical examination by the hackney licensing authorities at the City Council, and a taxi driver would have to meet the standards of medical fitness expected of the holder of an HGV or PSV licence. He continued:
“Having suffered a head injury associated with a skull fracture, an intracranial haematoma and having had to have that haematoma evacuated, in my opinion, Mr Ebden would not be regarded as being medically fit in the future for vocational driving or to hold a hackney licence.”
[14]In October 2007 Dr Priestley had described the symptoms suffered by the claimant as vulnerable to fatigue and, when vulnerable to fatigue, there was a liability for his speech to be affected. He described an adverse behavioural change with irritability and a proneness to verbal aggression, consistent with the severity of the injury he had sustained. He also described the claimant’s anxiety and vulnerability to developing clinical depression. But he did note, as I have already observed, the fact that the claimant performed more poorly than he would have expected in relation to sensitive tests and specific measures of effort; in other words, he took the view that this claimant was not trying hard enough. But he commented, after the news that the claimant was working as a taxi driver, on how that appeared to him to be surprising. He noted again, in a report dated 1 December 2007, that the performance by the claimant of the tests was poorer than when he had previously been examined and demonstrated a lack of effort. But he expressed his surprise in these terms:
“I am far more surprised that he is able to work as a taxi driver, even part time, with his current neurobehavioural presentation.”
Clearly, therefore, the DVLA records would have had some relevance to the question as to whether the claimant was exaggerating his symptoms. But against that it is noteworthy that the claimant does not appear to have been consistent in his efforts to paint a worse picture than that from which he in truth suffered, otherwise why should he choose to work part-time when none of the doctors had expected him to be able to do so?[15]The essential focus of this appeal in the context of the adjournment to obtain the DVLA records is on the care that it was expected he would need in the future once he attained the age of sixty-five. The argument at the time of the adjournment, in which Mr Jackson persists in this appeal, is that it was wrong of the judge to conclude that he would need care in the future when the claimant was plainly able to hold down, albeit part time, the job of taxi driver, communicate with the passengers he took, find the correct routes and perform what organisational tasks were needed. The judge spoke of the irritability, the difficulty this claimant had doing more than one thing at a time, loss of concentration and memory, and described these deficits as being consistent with the serious injury which the claimant suffered. He found those complaints entirely credible.[16]He awarded the general damages I have identified for moderate-to-severe intellectual deficit; a personality change; an effect on sight and speech with a significant risk of further epilepsy. He then noted the need for care in the past, allowing for the effect of the fibromyalgia to compensate for the neurological and psychological symptoms which he had summarised. He accepted evidence given by Maggie Sargent, the expert on future care, and awarded damages on the basis of seven hours care a week. That was, as he said, to allow for care to compensate for the claimant’s poor memory, lack of concentration and problems multi-tasking, all of which he said would have an effect on his ability to provide in a practical way for his own daily needs. He discounted the figures for the effect of the fibromyalgia and the chances that less care would be needed in the future, and rounded down a sum he reached of £185,000 odd to a £170,000.[17]The argument in challenging that conclusion is advanced on two separate fronts. Firstly that, had the adjournment been granted, the DVLA records, which this court has still not seen, would have established that his symptoms were not as severe as were contended and particularly would not have justified the award for future care. Further, in any event, had those records been available they would have demonstrated that the care asserted was not needed; and further, as a distinct ground of appeal there was no evidential basis upon which the judge could justify the award of future care at the rate he gave.[18]In order to assess both of those arguments, linked as they are, I should draw attention to the description given by the claimant Robert Ebden’s own wife who had clearly spent devotion and time in caring for the husband, whose personality had significantly changed. In her statement of 24 January 2008 she described her husband’s work as a taxi driver working the twilight shift between 4pm to midnight, not in Newcastle town centre but rather working from a taxi rank at Newcastle airport. She describes how her husband is unable to perform more hours than he currently works, tires easily and lacks motivation. She identifies problems with his memory and the difficulties she has in motivating him to go to work. She has suffered from his angry and aggressive outbursts and notes angry and aggressive outbursts when he has been driving his taxi. She concludes:
“If I was not around to look after Bob he would not be able to cope. Bob would not look after himself and he would not go to work. He would just sit around and do nothing. He wouldn’t eat properly and he probably would not even wash. Bob is unable to deal with such things as paperwork now and this is yet another thing that I have been left to cope with.”
She then speaks of the former assistance that he had from someone described as “an outreach worker”, points out the fatigue and strain that she has suffered as a result of having to look after her husband and concludes:
“Bob has changed so much and I constantly have to tell him what to do and how to do things. Bob resents me for doing this. Bob refers to me as ‘the Fat Controller’. I feel like I am his mother and that I am no longer his wife. I am tired and I need a break from my daily life as it is now and would like someone to take over this role from me as soon as possible.”
It was in describing that role that the well-known expert Maggie Sargent registered as a general nurse, but now, accustomed to giving evidence in cases such as this, describes the need for support and the type of support which she put at present as seven hours a week, but in her report dated 25 November 2007 described as a requirement for ten hours a week in the future.[19]In my judgment the evidence I have described demonstrates and justifies two factual propositions. Firstly, that had disclosure of the DVLA records been achieved it is unlikely that they would have made any difference. The description of the needs of this claimant, given in the context of his part-time work as a taxi driver from Newcastle airport, shows that he can manage those tasks, but do not in any way undermine the views described as to his needs for care. It was, after all, once it was known that this claimant was working as a part-time taxi driver, also known that he was bound to have made a successful application to the authorities in order to drive as a taxi driver and had satisfied them that he was capable of safely plying his trade. True, there has been no discovery of what he said in order to persuade those authorities, but it can and must be assumed against him that he successfully persuaded them that he was sufficiently fit. That is not wholly surprising. The evidence I have pointed out shows a character change. Head injury brought on lassitude and a lack of motivation which needed focus and a desire to work to be engendered. Once his motivation had been triggered he could then hold down the part-time job on a familiar route.[20]I for my part cannot therefore see how obtaining his DVLA application and associated medical records -- although it must be accepted that they were disclosable and relevant -- were likely to have made any significant difference to the evidence about his change of personality. Thus, although I accept that the judge was misled in a significant respect and might therefore have decided the adjournment another way, the absence of those records has had no likely impact on his decision as to the amount of damages which should have been awarded, as it can now be seen and judged.[21]Further, this appeal was based upon the submission that there was no basis, or at least no sufficient basis, for the full amount of the award given for future care. The claimant himself had exaggerated his difficulties by failing to put sufficient effort into the tests he was given and the judge had wrongly dismissed the weight to be attached to his failure to perform those tests to the best of his ability. But on the basis of the evidence that the judge heard, as to the short period each day in which an outsider might be able to get this claimant to focus and be able to motivate him to work, coupled with the effect on this claimant’s wife, I can well see how the judge concluded that one hour a day each week with a discount was appropriate to provide for his future care, and in my judgment the judge was perfectly entitled to reach that conclusion.[22]A further sum was awarded for what was described by Ms Sargent as case management; in other words, someone to analyse and assess the continuing needs of this claimant. The figure turned out to be rather higher than the figure for someone to assist one hour per day; but given the managerial role of such a person, that is not wholly surprising. In the light of the evidence of Mrs Sargent and the obvious need to monitor and assess this claimant’s future needs, that figure was in my judgment also justified. For those reasons I would dismiss this appeal.[23]I agree.

Sir William Aldous:

[24]I also agree.

Order

Appeal dismissed