Coughlan v The Minister for Defence

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Noonan
• Judgment Date: 04 March 2020
• Neutral Citation: [2020] IECA 53
• Docket Number: Record Number: 2019/82
• Date: 04 March 2020

BETWEEN/

IAN COUGHLAN

PLAINTIFF/APPELLANT

-AND-

THE MINISTER FOR DEFENCE IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

[2020] IECA 53

Edwards J.

Whelan J.

Noonan J.

Record Number: 2019/82

THE COURT OF APPEAL

Personal injuries – Bound to fail – Statute barred – Appellant seeking to appeal from the judgment and order of the High Court dismissing his personal injuries action – Whether the appellant’s personal injuries action was bound to fail as being statute barred

Facts: The appellant, Mr Coughlan, appealed to the Court of Appeal from the judgment and order of the High Court (Meenan J) dismissing the appellant’s personal injuries action on the ground that it was bound to fail as being statute barred. The order was made on foot of a motion brought by the respondents, the Minister for Defence, Ireland and the Attorney General, which was heard on affidavit without oral evidence. The appeal raised issues concerning, inter alia, the status of documents exhibited in the respondents’ affidavits and the correct approach to be adopted in determining such applications.

Held by Noonan J that the report of Dr Wood, a locum consultant physician and clinical toxicologist practicing at Guys and St. Thomas’ Hospital in London, upon which substantial, if indeed not exclusive, reliance was placed by the trial judge in determining Mr Coughlan’s date of knowledge, was inadmissible as hearsay and ought to have been ruled as such by the trial judge. For the same reason, Noonan J held that the criticism of Dr O’Shea, a general practitioner specialising in occupational medicine, in the respondents’ affidavits was unwarranted.

Noonan J held that the trial judge was in error in acceding to the respondents’ application. He held that he would accordingly allow the appeal and set aside the order of the High Court. He proposed remitting the respondents’ motion to the High Court to be determined in accordance with the terms of this judgment.

Appeal allowed.

JUDGMENT of Mr. Justice Noonan delivered on the 4th day of March, 2020

Introduction

1 This appeal is brought from the judgment and order of the High Court (Meenan J.) dismissing the appellant's personal injuries action on the ground that it is bound to fail as being statute barred. The order was made on foot of a motion brought by the respondents which was heard on affidavit without oral evidence. The appeal raises issues concerning, inter alia, the status of documents exhibited in the respondents' affidavits and the correct approach to be adopted in determining such applications.

Background

2 The appellant (Mr Coughlan), who is now 44 years of age, is a former member of the Defence Forces. He is retired on an invalidity pension. He was formerly employed as an aircraft mechanic with the Defence Forces. Between approximately the years 1994 and 2004, Mr. Coughlan alleges that, during the course of his employment, he was exposed to toxic chemicals used for degreasing aircraft parts. He alleges that the respondents as his employer failed to provide him with proper protection against the effects of these chemicals and as a result he suffered personal injuries. He claims to have suffered, inter alia, symptoms of dizziness, skin rashes, nasal irritation, sores, sleep disturbance, chronic fatigue, mood changes, inability to concentrate, chronic headaches, yellowness of his skin and bloody diarrhoea. Some of these complaints are continuing.

3 Both during and after his employment with the Defence Forces, Mr. Coughlan attended a large number of doctors about his complaints. It is clear that Mr. Coughlan himself has long since believed that there was an association between his symptoms and his working environment. However, he says that he was repeatedly assured by the many doctors he consulted that he was wrong about this. He says that it was not until he received a verbal opinion from a clinical toxico-pathologist, Professor Howard, in November, 2011, that he became aware that there was a causal link between his symptoms and his employment. Mr. Coughlan claims that this is his date of knowledge for the purposes of the Statute of Limitations (Amendment) Act, 1991, (“the 1991 Act”), and as his proceedings were issued within two years of that date, they are brought in time.

4 The respondents strongly dispute this and allege that Mr. Coughlan's date of knowledge long pre-dates the receipt of Professor Howard's opinion and is well in excess of two years prior to the commencement of proceedings which are thus statute barred. The respondents accordingly brought a motion before the High Court seeking an order dismissing the proceedings on the grounds that they are statute barred and therefore bound to fail. In the alternative, the respondents sought the trial of a preliminary issue as to whether the claim is statute barred.

Evidence in the High Court

5 The application was heard on affidavit and no oral evidence was given. On behalf of the respondents, three affidavits were sworn by Ms. Louise O'Rourke, a partner in Hayes Solicitors. Mr. Coughlan swore two replying affidavits. In her first affidavit, Ms. O'Rourke exhibits a significant volume of the plaintiff's medical records which are in the possession of his employer, the respondents, by virtue of Mr. Coughlan having attended various medical personnel engaged by the respondents. These also included medical reports obtained by the respondents arising out of an accident that befell him in the course of his employment in 2007. These reports included references to Mr. Coughlan's prior medical history upon which reliance was placed by the respondents in the context of his date of knowledge. Mr. Coughlan swore a replying affidavit on the 26th January, 2017. At paragraph 4 of his affidavit, Mr. Coughlan says:

“… At no time during that period [1994 – 2005] was I informed or advised that the symptoms and manifestation of illness were related to my working environment or an exposure to organic solvents or chemicals. Moreover, during that period I attended for frequent medical treatment, examination and investigation and I was repeatedly reassured that my symptoms were not related to my working environment …

At all times I relied upon [the] expertise [of the respondents' doctors] and at no stage prior to my contact with Professor Howard was I advised or informed of an association between my symptoms and my employment. In fact, I was advised to the contrary and repeatedly informed that there was no basis for such a connection to be made.”

6 In her first affidavit, Ms. O'Rourke referred to the fact that Mr. Coughlan's medical records disclosed that he had attended toxicologists since prior to August 2005. Mr. Coughlan deals with this at para. 10 of his affidavit:

“Insofar as Ms. O'Rourke at part D of her affidavit avers to your deponent having attended toxicologists since prior to August 2005 she is quite incorrect in this regard. She misidentifies Dr. O'Shea as a toxicologist and while I did attend him, I did not do so for toxicology. I am unaware of any toxicologist operating in Clane. In late 2007 or early 2008 Dr. O'Shea identified a locum consultant physician and clinical toxicologist practicing at Guys and St. Thomas' Hospital in London, Dr. David Wood. An appointment was eventually arranged for me to meet Dr. Wood for a consultation on the 26th March, 2008 and thereafter Dr. Wood provided a report in January 2009. Unfortunately due to the lack of information available to Dr. Wood with regard to the nature of the chemicals and solvents to which I had been exposed during the course of my employment with the Air Corps, he was very much limited in his capacity to provide an opinion as to any causal connection between my symptoms and my working environment. At that stage I was not aware of the precise nature of the chemicals involved and Dr. Wood required information in this regard. Ultimately he was not in the position to advance matters for me and it was therefore necessary for me to attempt to identify an appropriate expert to do so. Ultimately Professor C.V. Howard, a medically qualified toxico-pathologist, specialising in problems associated with the action of toxic substances on health was identified as being an expert in the area who would be able to provide assistance and in particular expert advice insofar as the cause of my symptoms was concerned. Professor Howard was contacted by me and Gavin Tobin [a work colleague] and I understand and believe that in the course of a telephone conversation with my solicitor, he provided a preliminary oral opinion (on the 17th November, 2011) to the effect that he believed that the symptoms experienced by me were, as a matter of probability, due to an unprotected exposure to toxic chemicals in the workplace.”

7 Mr. Coughlan subsequently met with Professor Howard who provided a written report in May 2013. The proceedings issued shortly thereafter.

8 Arising from the references in Mr. Coughlan's affidavit to having consulted Dr. Wood, the respondents sought a copy of his report from Mr. Coughlan's solicitors. They declined to provide it on the ground that it was privileged. The respondents then applied to the High Court for an order for inspection of the report, presumably pursuant to O. 31 r. 18 of the RSC. On the 22nd of January 2018, the court (Faherty J.) made an order directing Mr. Coughlan to produce the report of Dr. Wood to the respondents for inspection. This appears to have been done by way of providing a copy to the respondent's solicitors. Ms. O'Rourke then swore a third affidavit on the 12th April, 2018 exhibiting a copy of Dr. Wood's report and commenting in detail on its contents. In her affidavit, Ms. O'Rourke avers at para. 3:

“… The reason why the Court ordered the plaintiff to produce Dr. Wood's report was because it was satisfied that it was necessary for the Court to have regard to the actual contents of the...