David White v Arrabawn Co-Operative Society Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date26 May 2021
Neutral Citation[2021] IEHC 343
Date26 May 2021
Docket Number2019 No. 1000 P.

[2021] IEHC 343

THE HIGH COURT

2019 No. 1000 P.

Between
David White
Plaintiff
and
Arrabawn Co-Operative Society Limited
Defendant
Appearances

Helen O'Mara for the plaintiff instructed by Holmes O'Malley Sexton LLP

Michael Murray for the defendant instructed by Stephen MacKenzie & Co. Solicitors

Personal injuries – Discovery – Privilege – Plaintiff seeking discovery – Whether the categories of documents sought met the threshold of relevance, necessity and proportionality

Facts: The plaintiff, Mr White, applied to the High Court for discovery in personal injuries proceedings. The proceedings arose out of an incident at the injured party’s workplace. The incident was the subject of a criminal prosecution pending before the Circuit Criminal Court. The prosecution had been taken against the defendant company, Arrabawn Co-operative Society Ltd, by the Health and Safety Authority. The defendant company relied on the pending criminal prosecution as a reason to avoid making any discovery in the personal injuries proceedings. The defendant company invoked the privilege against self-incrimination in general terms, and submitted that it was entitled to resist discovery without providing any explanation as to how it was said that the individual documents were privileged. It was further submitted that the court could not look behind the claim of privilege and could not adjudicate upon same.

Held by Simons J that the application for discovery would be allowed. Simons J held that the categories of documents sought met the threshold of relevance, necessity and proportionality. Insofar as the defendant company sought to assert privilege against self-incrimination, Simons J held that it was far from obvious that the claim of privilege must inevitably succeed. Simons J held that there was no justification, therefore, for short-circuiting the usual procedure for asserting privilege. Simons J held that the defendant company was required to file an affidavit as to documents in the ordinary way. Simons J held that if the defendant company wished to object to the production of certain documents on the basis that they were privileged, then those documents must be specified in the affidavit. Simons J held that the affidavit must state upon what grounds the objection was made, and verify the facts relied upon. Simons J held that, thereafter, it was open to the plaintiff to apply for an order for inspection if he wished to challenge the claim of privilege. Simons J held that the affidavit for discovery was to be sworn by Mr Ryan, the chief executive officer of the defendant company, within six weeks of the date of perfection of the order.

Simons J held that his provisional view was that the plaintiff should be entitled to recover his costs of the motion as against the defendant company. Simons J held that this was because the plaintiff had been entirely successful in the application for discovery. Simons J held that, in circumstances where the only issue between the parties was in respect of the claim of privilege, the defendant company should have consented to the request for voluntary discovery and raised the issue of privilege in its affidavit as to documents. Simons J held that, had the defendant company adopted this reasonable course, the costs of the motion could have been avoided.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 May 2021

INTRODUCTION
1

This judgment is delivered in respect of an application for discovery in personal injuries proceedings. The proceedings arise out of an incident at the injured party's workplace. The incident is the subject of a criminal prosecution pending before the Circuit Criminal Court. This prosecution has been taken against the defendant company by the Health and Safety Authority.

2

The defendant company relies on the pending criminal prosecution as a reason to avoid making any discovery in these personal injuries proceedings. The defendant company invokes the privilege against self-incrimination in general terms, and submits that it is entitled to resist discovery without providing any explanation as to how it is said that the individual documents are privileged. It is further submitted that this court cannot look behind the claim of privilege and cannot adjudicate upon same.

PROCEDURAL HISTORY
3

These proceedings arise out of an accident said to have occurred on 28 April 2017. In brief outline, the injured party had been employed as an operative and shift supervisor at the defendant company's milk powder plant in Nenagh, Co. Tipperary. It is pleaded that the injured party received serious burns while in the process of removing a filter from a pipeline carrying very hot liquid milk. It is alleged that the filter cap on a parallel pipe had blown off and that hot milk from the pipe sprayed onto the injured party.

4

The pleas of negligence include inter alia an allegation that the defendant company (i) had failed to provide the injured party with adequate safety and health training; (ii) had failed to heed earlier warnings that the rubber around the filter cap or clamp required to be monitored more closely and/or replaced more frequently; and (iii) had failed to heed warnings that the shut-off valves were malfunctioning and appeared to be closed when they were not.

5

The personal injuries defence delivered on behalf of the company amounts to no more than a traverse of the injured party's claim. The only factual matters which are not denied are the descriptions and addresses of the parties; the plaintiff's date of birth and personal public service number, i.e. PPS number; and the fact that the Personal Injuries Assessment Board issued an authorisation to institute proceedings. It is expressly pleaded that the injured party was “entirely the author of his own misfortune” or was otherwise guilty of contributory negligence. These pleas are not particularised, notwithstanding the obligation to do so under the Civil Liability and Courts Act 2004. I will return (at paragraph 35 below) to consider the implications of this perfunctory form of pleading for the discovery application.

6

Following a request for voluntary discovery, which was not responded to in correspondence by the defendant company, the solicitors acting for the injured party issued a motion seeking discovery on 28 September 2020.

7

Discovery is sought in respect of the following categories of documents. (The date of the accident has been corrected in some of the paragraphs below. This is indicated by the use of square brackets).

  • “1. Any notes or records (including accident or injury report forms) made by or on behalf of the Defendant recording the occurrence and circumstances of the accident.

  • 2. Records of any training given to the Plaintiff in relation to changing the filters on the said pipework or provision for personal protective equipment.

  • 3. Any standard operating procedures relevant to the task of changing or removing the filters from the pipework as referred to at paragraph 4 of the Personal Injury Summons herein.

  • 4. Records of any accident or near accident involving the same pipeline in the 24 months prior to the accident on [28 April 2017] (whether causing injury to an employee or worker or not).

  • 5. Records of any complaints or warnings or observations made by any persons of defects or malfunctions in the said pipework or of potential dangers involved in working with the said pipework.

  • 6. Records of any inspections or repairs carried out on the pipework involved in this accident in the 24 months prior to the accident on 28 April 2017.

  • 7. All risk assessments carried out by the Defendant and each or either of them pursuant to section 19(1) of the Safety, Health and Welfare at Work Act 2005 in respect of the Plaintiff's place of work.

  • 8. All reviews of the risk assessment carried out under section 19(2) of the Safety, Health and Welfare at Work Act 2005 including reviews carried out after any previous accidents or malfunctions involving the same pipeline and the review carried out after the Plaintiff's accident on 28 April 2017.

  • 9. All safety statements prepared by the Defendant and each or either of them pursuant to section 20 of the Safety, Health and Welfare at Work Act 2005 in respect of the Plaintiff's place of work, being the powder area of the Defendant's milk powder plant in Nenagh.

  • 10. All correspondence and documents sent between the Health and Safety Authority and the Defendant in relation to the Plaintiff's accident on [28 April 2017].”

8

The defendant company responded to the motion by way of letter from its solicitors dated 27 January 2021. The letter notes that the incident the subject-matter of the personal injuries proceedings forms the substance of a pending prosecution on indictment by the Health and Safety Authority (“ HSA”). The prosecution is taken against the defendant company and is pending before the Circuit Criminal Court.

9

The letter further notes that a statement of evidence from the injured party appears in the book of evidence, and infers from this that the injured party will be a “key” witness for the HSA at the criminal trial.

10

The letter then concludes as follows.

“Given the inextricable nature of the HSA Prosecution and these proceedings at this point in time, we must respectfully decline to make discovery of the documents you now seek on grounds that to do so would infringe on our client's right to avoid self-incrimination.

We therefore and accordingly respectfully call upon you to withdraw your motion for discovery by return. Should you fail to do so, this letter will be used in support of an application for the costs of said discovery motion.”

11

The solicitors acting on behalf of the injured party replied by letter dated 1 February 2021. The substance of the letter reads as follows.

“A claim of privilege in respect of a document does not exempt it...

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