Ebden v Richardson

An appellate court should interfere with a refusal to adjourn only for an error of principle, failure to consider a significant relevant feature, or a conclusion outside the range of reasonable responses. Where the decision was materially affected by misinformation, the court must assess whether the missing material could realistically have affected the outcome. Limited part-time employment does not, without more, negate a continuing need for care following serious brain injury. A future-care award may be upheld where the evidence establishes cognitive and behavioural deficits, fatigue, impaired motivation and a need for assistance with daily activities. Case-management costs may also be awarded where evidence demonstrates an ongoing need to monitor and assess care requirements.

The appellant, who had seriously assaulted the respondent, appealed against an award of damages made by HHJ Walton at Newcastle-upon-Tyne on 31 January 2008. The award included damages for future care and case management.

The appellant had been acting in person from prison at trial. He sought an adjournment to obtain the respondent’s DVLA records and to address a recently served expert report. The judge refused the adjournment after being incorrectly informed that an authority had been sent to the DVLA and that only one request for the records had been made.

The appeal concerned whether the refusal to adjourn was an appealable error and whether the evidence justified the awards for future care and case management, particularly in light of the respondent’s return to part-time work as a taxi driver.

1. Appeal dismissed. The court unanimously upheld the judgment.
2. The refusal of an adjournment is ordinarily a matter for the trial judge. Appellate intervention is justified where there is an error of principle, failure to take account of a relevant and significant feature, or a conclusion outside the range of reasonable responses. The trial judge had been seriously misled about the DVLA requests and the authority said to have been provided. The appellate court therefore considered the significance of the missing records.
3. The DVLA records were relevant and disclosable, but their absence was unlikely to have affected the damages decision. The respondent’s ability to obtain a taxi licence showed that he had persuaded the relevant authorities that he was sufficiently fit to drive safely. That ability did not undermine the evidence of personality change, lassitude, impaired motivation and continuing cognitive and behavioural difficulties. His part-time work on a familiar route was compatible with a continuing need for support.
4. The judge was entitled to accept the evidence concerning poor memory, lack of concentration, difficulty with multi-tasking, fatigue, motivation and the effect of the respondent’s condition on his wife. On that evidence, an award based on approximately one hour of care per day, subject to the appropriate discount, was justified despite the respondent’s failure to exert himself fully during neuropsychological testing.
5. The separate award for case management was also justified. The evidence demonstrated an ongoing need to monitor and assess the respondent’s future requirements, and the managerial nature of that role explained its relative cost.

The order was: appeal dismissed.

1. Court of Appeal (Civil Division): On 10 November 2008, the court dismissed the appeal.
2. Newcastle-upon-Tyne Combined Court Centre: HHJ Walton awarded total damages of £331,073.76 on 31 January 2008, including damages for future care and case management.