Catherine (Tina) McCormack v Health Services Executive
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 19 October 2021 |
| Neutral Citation | [2021] IECA 272 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 2021/48 |
[2021] IECA 272
Faherty J.
Binchy J.
Barniville J.
Court of Appeal Record No. 2021/48
THE COURT OF APPEAL
Discovery – Personal injuries – Damages – Appellant seeking discovery of categories of documentation – Whether the discovery sought was relevant and necessary
Facts: The appellant, Ms McCormack, a psychiatric nurse in the employment of the respondent, the Health Service Executive, by personal injuries summons dated 1st July 2016, issued proceedings against the respondent claiming damages for personal injuries allegedly occasioned to the appellant in the course of her work. By letter dated 1st November 2018, the solicitors for the appellant wrote seeking discovery of six categories of documentation, as follows: (a) any or all documentation consisting of incident report forms arising from incidents of patient violence and/or aggression at the defendant’s facility from 1st January 2010 to 31st December 2014; (b) any and all documentation consisting of incident report forms arising from the incidents pleaded in the personal injuries summons to have occurred on or about 31st December 2013 and 27th February 2014; (c) any and all documentation consisting of assessments and/or evaluations conducted at the time of admission of patients who were admitted to the defendant’s facility from 1st January 2010 to 31st December 2014 together with any documentation considered in the course of any such assessments and/or evaluation; (d) any and all documentation arising from the monitoring or evaluation of patient behaviour by the defendant, its servant or agents at the defendant’s facility from 1st January 2010 to 31st December 2014; (e) any and all documentation evidencing the nature or content of training or support provided to the plaintiff with regard to the management of violent or aggressive patients; (f) any documentation evidencing steps taken by the defendant to ensure the health and safety of the plaintiff in so far as violent or aggressive patients at its facility were concerned. The respondent declined to make discovery in the terms requested. A motion for discovery duly issued on 18th September 2020 and was heard by the High Court (Heslin J) on 8th February 2021. On that date, the respondent agreed to make discovery in the terms of category (b) above, but resisted the application for discovery of documentation in the remaining categories. In an ex tempore decision handed down following on the hearing of the motion, Heslin J declined to make discovery in respect of any of the disputed categories. Following upon the hearing of the appeal to the Court of Appeal, the parties reached agreement that the respondent would make discovery of documents regarding the respondent’s policy for admission to its facility. This agreement was in the following terms: “Documents evidencing the Admissions Policy or changes thereto for the Ferndale facility for 2012 to 2014 together with any risk assessment concerning violence or aggression during that period.” This agreement did not satisfy the appellant, who regarded the discovery of that category of documents as additional to those sought by her motion, and not in substitution for any of the categories sought.
Held by Binchy J that this agreement for discovery was adequate to meet the purposes for which discovery was sought of the documents described in categories (a), (c) and (d) of the appellant’s motion. Regarding category (a), Binchy J noted that no information was provided about any of the incidents in respect of which discovery was sought. Binchy J held that categories (c) and (d) must be refused because the appellant had not established that the documents were relevant to the pleaded case. Binchy J held that it was difficult to see the relevance and necessity of the discovery sought in categories (e) and (f) in circumstances where the appellant was not making any claim that she herself was the subject of any violent or aggressive act, or even that she saw others subjected to such treatment. Binchy J held that the decision of the trial judge to refuse to order discovery of the disputed categories of documentation was one that was well within his margin of appreciation on the application.
Binchy J held that the appeal should be dismissed.
Appeal dismissed.
JUDGMENT of Mr. Justice Binchy delivered on the 19 th day of October 2021
. By personal injuries summons dated 1 st July 2016, the appellant, who is a psychiatric nurse in the employment of the respondent, issued proceedings against the respondent claiming damages for personal injuries allegedly occasioned to the appellant in the course of her work. In brief, the appellant is employed as a health care worker by the respondent at its facility at Ferndale Community Residence, Dooradoyle, Limerick (“Ferndale”). In the personal injuries summons this is described as being a “high support residence”. The appellant claims that from 2013 onwards, the respondent began to admit patients who were unsuitable to the facilities available at Ferndale, on account of their violent and aggressive behaviour which constituted a danger to the health and safety of the staff of the unit, including the appellant, as well as other patients.
. The appellant refers to two specific incidents which she alleges occurred as a result of the admission of such persons to Ferndale and which she says have had a “profound effect” on her. She claims that on 31 st December 2013 she discovered the suicide of a patient in her care. She further claims that on 27 th February 2014, she was present in the immediate aftermath of a suicide attempt by a colleague who she claims was unable to cope with the difficulties being experienced by staff at Ferndale. The appellant further claims that she has been continuously exposed to the risk of injury and does not feel safe at work. The appellant does not particularise any incidents of violence or aggression in the workplace.
. It is appropriate to set out the express terms of the pleadings relevant to the application:
(a) During the year 2013, the said facility operated by the defendant known as Ferndale High Support Residence began to admit patients who were unsuitable for the facilities available, insofar as they exhibited violent and aggressive behaviour and constituted a danger to the health and safety of staff and other patients.
(b) As a result of the admission of such persons at Ferndale, two incidents have occurred which have had a profound effect on the plaintiff as follows:
(i) On or about 31 st December 2013, the plaintiff discovered the suicide of a patient in her care.
(ii) On or about 27 th February 2014, the plaintiff was present at the immediate aftermath of a suicide attempt by a colleague of hers who was apparently unable to cope with the difficulties being experienced by staff at Ferndale.
(c) The plaintiff has been exposed to continual risk of injury in the course of her employment and does not feel safe at work.
(d) The plaintiff, in consequence of the foregoing, was caused to sustain severe personal injuries, loss and damage.
(e) The said severe personal injuries loss and damage were caused by the negligence and breach of duty, (to include breach of statutory duty) of the defendant, its servants or agents.
Particulars of negligence and breach of duty
(To include breach of statutory duty)
(a) Caused or permitted Ferndale High Support Residence to admit persons unsuitable for the facility;
(b) Failed to provide any or any adequate training for staff;
(c) Failed to provided adequate staff;
(d) Failed to provide or procure adequate supervision of patients;
(e) Failed to have any or any adequate regard to an increase in incidents concerning patients, and/or failed to take corrective action or advise staff on foot of the escalation in incidents;
(f) Failed to have any or any adequate regard to the risk of violence or aggression occurring;
(g) Failed to provide staff with any or any adequate means or permission to restrain patients whose behaviour constituted a risk to themselves or to others;
(h) Failed to conduct any or any adequate risk assessment of patients;
(i) Failed to provide a safe system of work;
(j) Failed to implement any or any adequate system for managing volatile patients;
(k) Failed to manage or conduct a system of work such that the plaintiff would not be exposed to the risk of injury;
(l) Failed to have any or any adequate regard to the safety of the plaintiff;
(m) Caused, procured and/or permitted the plaintiff to be exposed to workplace stress in the course of her employment;
(n) Failed to take any or any adequate measures to prevent or limit occasions of stress in the course of the plaintiff's employment;
(o) Caused, procured and/or permitted the plaintiff to work in an environment which constituted a hazard to her health and wellbeing;
(p) Exposed the plaintiff to a risk of which it was aware or ought to have been aware;
(q) Failed to comply with the provisions of the Safety, Health and Welfare at Work Act 2005 and/or regulations made and/or preserved thereunder.
. At para. 4 of the personal injuries summons, under the heading “injuries to the plaintiff”, the appellant claims that she attended her GP following the incident of December 2013 with stress and difficulty in sleeping and was prescribed Xanax and certified as unfit for work. It is further pleaded that she was again certified as being unfit for work following the incident in February 2014, and that the appellant's prognosis is guarded.
. A notice for particulars was raised on behalf of the respondent on 2 nd August 2016, and replies were delivered on 6 th September 2017. In this notice for particulars (at para. 13), the appellant was requested to furnish full...
To continue reading
Request your trial
-
Moore v St. John of God Community Services Company CLG and Another
...on staff and that same will have been documented. 11 The defendants' reliance on the judgment in McCormack v. Health Service Executive [2021] IECA 272 is misplaced. There, the claimant in a personal injuries action had pleaded that she had been continuously exposed to the risk of injury dur......