Donohoe v Irish Press Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IEHC 264
• Court: High Court
• Docket Number: [No. 923 P/2002]
• Date: 27 July 2007

[2007] IEHC 264

The High Court

[No. 923 P/2002]

DONOHOE v IRISH PRESS PLC

between

Jack Donohoe

Plaintiff

and

Irish Press PLC

Defendant

RSC O.122 r11

FLETCHER v COMMISSIONERS OF PUBLIC WORKS IN IRELAND 2003 1 IR 465 2003 2 ILRM 94 2003 ELR 117

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

GILROY v FLYNN 2005 1 ILRM 290

O DOMHNNAILL v MERRICK 1984 1 IR 151

O'BRIEN v KEOGH 1972 IR 144

CONSTITUTION

STATUTE OF LIMITATIONS 1957

KELLY v O'LEARY 2001 2 IR 526

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

SOUTHERN MINERAL OIL LTD v COONEY 1997 3 IR 549

BIRKETT v JAMES 1978 AC 297

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

PRACTICE AND PROCEDURE

Dismissal of proceedings

Want of prosecution - Delay - Personal injury - Asbestos exposure - Prejudice to defendant - Whether obligation to give notice prior to motion - No explanation for delay - Inherent jurisdiction - Interests of justice - Onus on party seeking dismissal - Factors for consideration - Duty of courts to expedite litigation - Tests for pre-commencement and post-commencement delay - Whether delay inordinate and inexcusable - Whether balance of justice favoured dismissal - Risk of unfair trial - Delay by defendant - Acquiescence - Expense to plaintiff - Nature of injuries - Fletcher v Commissioners of Public Works [2003] 1 IR 465; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; Gilroy v Flynn (Unrep, SC, 3/12/2004); Ó Domhnaill v Merrick [1984] 1 IR 151; O'Brien v Keogh [1972] IR 144; Kelly v O'Leary [2001] 2 IR 526; Toal v Duignan (No 1) [1991] ILRM 135; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Southern Mineral Oil Ltd v Cooney [1997] 3 IR 549 and Birkett v James [1978] AC 297 considered - Action dismissed (2002/923P - McCarthy J - 27/7/2007) [2007] IEHC 264

Donohoe v Irish Press plc

The plaintiff commenced proceedings claiming damages for personal injuries by way of plenary summons in January 2002. The plaintiff alleged that he suffered injury in the course of his employment with the defendant between 1967 and 1994. However it appeared that the plaintiff only discovered his injury in 2001. In this application the defendant sought an order dismissing the plaintiff’s claim for want of prosecution and/or inordinate and inexcusable delay pursuant to the inherent jurisdiction of the court and under Order 122(1) of the Rules of the Superior Courts. The defendant submitted that its defence would be heavily reliant on oral evidence as most of the documentary evidence had been disposed of. The defendant maintained that only one surviving employee/potential witness was located and further that it experienced difficulties identifying the appropriate insurer relevant to the plaintiff’s claim.

Held by McCarthy J. in dismissing the plaintiff’s claim: That there was no explanation of any kind for the delay in the period from the diagnosis of the plaintiff’s injury to the time when the proceedings were again pursued pursuant to the last notice of intention to proceed in November 2006. This case ought to be dismissed in the inherent jurisdiction of the court by virtue of the unavoidable and real risk that the defendant would not obtain a fair trial, having regard to the history of the case, including the delay from the initiation of the proceedings but primarily because the cause of action may have arisen as early as 1970 and any breach of duty continued until 1995. The delay since the commencement of the proceedings was inordinate and no excuse was furnished for that delay.

Reporter: L.O’S.

Mr. Justice McCarthy

1 This is an action for damages for personal injury which was commenced by plenary summons issued on 23rd January, 2002. In as much as an appearance was entered on behalf of the defendant only on 18th April, 2002 one infers that this summons and the subsequently delivered statement of claim (on 4th April, 2002) was served on the defendant prior to that date. The defendant sought particulars of the plaintiff's claim on 26th June, 2002 (by notice) and a reply was delivered to it on 18th February, 2003. No procedural step was taken after the latter date until 15th December, 2004 when the plaintiff's solicitors served a notice of intention to proceed upon Messrs L.K. Shields, solicitors for the defendant, and a further notice on 23rd November, 2006. It appears, also, that further particulars of the plaintiff's claim were furnished on 2nd January, 2007. Subsequently, by notice of motion on 17th April, 2007 (returnable for 21st May, 2007) the defendant sought an order dismissing the plaintiff's claim for want of prosecution and/or for inordinate and inexcusable delay pursuant to the inherent jurisdiction of the court and under O. 122(11) of the Rules.

2 The general endorsement of claim on the plenary summons is of a high degree of generality. On perusal of the statement of claim the plaintiff alleges that between 1967 and 1994 he was employed by the defendant at their premises at Burgh Quay. In particular, at para. 4 he says that in the course of his employment he was

"exposed to and inhaled on a regular basis quantities of dust and fibres including asbestos from asbestos pads on brake drums in the machine room of the plaintiff's premises"

whereby he suffered personal injury. The injury of which he makes complaint was diagnosed when he was under medical care in respect of a trapped nerve in his neck. In particular, on 12th January, 2001 and 29th January, 2001 respectively he was the subject of a chest x-ray and a CT scan. He pleads that these confirmed that he has "multiple calcified pleural plaque formation along his chest wall and diaphragmatic surfaces" but he has no symptoms and he accepts that there is "no evidence of asbestos related lung disease such as diffuse pleural thickening, mesotheliomar of asbestosis". Further, the plaintiff's doctor says that the symptoms found are related to exposure to asbestos and that it will be necessary to monitor him on a regular basis because of his increased risk of developing lung conditions related to the findings although, of course, there is "no evidence of function impairment on detailed pulmonary function testing" (see particulars of injury).

3 I might briefly dispose of one aspect of the submissions made on behalf of the defendant, namely, the reference toFletcher v. Commissioners of Public Works [2003] 1 I.R. 465 in which the Supreme Court held that the employers of workers negligently exposed to health risks have no liability to the "worried well". Of course the plaintiff does not fall into that category because he has suffered injury, admittedly one which has not given rise to any symptoms or adverse consequences and which presumably would give rise, were he to succeed, to extremely modest damages, certainly, at least, not in excess of the jurisdiction of the Circuit Court.

4 In the reply to the notice for particulars the plaintiff casts his claim on a somewhat wider basis than the statement of claim, alleging exposure to asbestos (and airborne asbestos fibres and materials containing asbestos) in boilers and casting machines and, further, as a result, apparently, of the fact that asbestos was mixed with cement and sprayed onto girders and concrete ceilings; he asserts, however, that the vast majority of his work time with the defendant was spent in the machine room, basement and press room of the defendant's premises, the primary cause, or so I infer, of the plaintiff's exposure to the substance in question being the operation of machines in the machine rooms as referred to in the statement of claim (see paras. 5 and 7 of the reply). The plaintiff's employment history is also clarified by that document in as much as it appears that he was employed by a firm other than the defendant, at the defendant's premises, on a whole time basis between 1967 and 1979 and by the defendant from 1979 until 26th May, 1995. It appears that he believes that he may have been exposed to the substances in question from either 1970 or 1973.

5 The defendant's motion is grounded on the affidavit of Susan Connolly and apart from summarising the sequence of steps in the proceedings and the plaintiff's allegations in respect of exposure and injuries, she deposes (at para. 5) to the effect that "much of the documentation which originally existed (in connection with the affairs of the company) had been disposed of during the course of a receivership, following which that company was placed in liquidation". On this basis Ms. Connolly says that the defendant is "heavily dependant on attempting to identify any relevant evidence which might be adduced from workers who are still alive and who could describe the conditions in the premises and deal with and refute the plaintiff's assertions": it appears (from para. 6) that it has been possible for the defendant to identify only one surviving employee (who I assume it is suggested might be in a position to offer relevant evidence) and that he is ill. Further, it appears (at para. 9) that the defendant has experienced difficulties in ascertaining whether or not, or with what insurers, it is insured in respect of periods relevant to the claim, against the background of documents inferred to be unavailable because of the receivership and the winding-up; there is no reason on the face of it to doubt that diligent efforts have been made to establish the identity of relevant insurers and that this has resulted only in the establishment of the identity of the insurers on risk for the years 1986, 1989, 1990, 1991 and 1995. Ms. Connolly also points out that the first letter indicating an intention to commence proceedings was on 27th February, 2001.

6 There is a replying affidavit of Mr. Patrick McMahon, of 30th May, 2007, on behalf of...