Egan v Castlerea Co-Operative Livestock Mart Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 09 October 2023
• Neutral Citation: [2023] IECA 240
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number No.: 2023/34

Between/

James Egan

Plaintiff/Appellant

and

Castlerea Co-Operative Livestock Mart Limited

Defendant/Respondent

[2023] IECA 240

Ní Raifeartaigh J.

Binchy J.

Butler J.

Appeal Number No.: 2023/34

High Court Record Number: 2020/2693 P

THE COURT OF APPEAL

CIVIL

Personal injuries – Discovery – Proportionality – Appellant appealing against an order for discovery – Whether discovery of the appellant’s post-accident medical records was disproportionate

Facts: The plaintiff/appellant, Mr Egan, appealed to the Court of Appeal against an order for discovery in personal injury proceedings made by the High Court (Twomey J) on 24 January 2023. The order directed the plaintiff to make discovery of two categories of documents namely documentation in respect of treatment received for back or leg pain from 1 January 2012 (i.e., his pre-accident medical records) and documentation in respect of treatment received for five months after the date of the accident (i.e. his post-accident medical records). Although the plaintiff did not initially agree to make any discovery, prior to the hearing of the motion in the High Court he consented to an order for discovery of his pre-accident medical records for a period of five years prior to the accident, and also his post-accident records to the limited extent of his initial attendance for medical treatment immediately after the accident. The order as drawn up did not precisely reflect this, but the parties were agreed as to the amendment necessary to properly encapsulate the consent order. The issue between them concerned whether, in addition to the agreed discovery, the defendant/respondent, Castlerea Co-operative Livestock Mart Ltd, was entitled to discovery of the plaintiff’s post-accident medical records. The plaintiff maintained that as a matter of general principle, discovery of post-accident medical records should not be required. Although initially the relevance of the post-accident records appeared to be queried by the plaintiff, it was accepted that relevance had been conceded by the plaintiff in the High Court such that the central issue on the appeal was necessity. The plaintiff argued that generally post-accident medical records were not necessary unless there was an issue as to the plaintiff’s credibility, which did not arise in this case; in those circumstances, the basic confidentiality of the plaintiff’s medical records should be respected; further, the defendant had the right to have the plaintiff medically examined and would have sight of the medical reports prepared by the plaintiff’s medical witnesses and the right to cross examine those experts at trial. It was also suggested that the requirement to discover that category of document could be disproportionate and oppressive as the records might be voluminous and an onus might be placed on the doctors concerned to redact the non-relevant parts of the records for disclosure.

Held by Butler J that she did not accept the legal arguments advanced by the plaintiff to suggest that discovery of post-accident medical records, which he had admitted were relevant to the proceedings, should be refused on the grounds that they were not necessary. Butler J noted that there was no evidence before the court to suggest that the discovery sought would be overly burdensome and the defendant had limited the period for which discovery was sought to five months after the date of the accident. Butler J held that, while conscious that the court should exercise a certain degree of caution in the discovery of medical records which are prima facie confidential, nothing had been put before the court to suggest that the records involved dealt with anything other than the plaintiff’s leg injury and perhaps his pre-existing back condition both of which fell at the less sensitive end of the spectrum in terms of medical confidentiality. Butler J held that different considerations might apply if there were reason to believe that the records in question were particularly extensive or touched on more sensitive matters. Butler J thought that the trial judge was correct in his decision to allow discovery of the documentation sought at para. B of the defendant’s notice of motion. Butler J endorsed the reasons advanced regarding the need for discovery of post-accident medical records in this case as set out at para. 19 of the High Court judgment.

Butler J dismissed the appeal. In circumstances where the plaintiff has not succeeded in his appeal, Butler J’s provisional view was that the defendant should be entitled to an order for the costs of the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTIONS NEEDED

JUDGMENT ofMs. Justice Butlerdelivered on the 9th day of October, 2023

Introduction

1 . This is an appeal against an order for discovery in personal injury proceedings made by Twomey J. on 24 January 2023. The order directs the plaintiff to make discovery of two categories of documents namely documentation in respect of treatment received for back or leg pain from 1 January 2012 (i.e., his pre-accident medical records) and documentation in respect of treatment received for five months after the date of the accident (i.e. his post-accident medical records). Although the plaintiff did not initially agree to make any discovery, prior to the hearing of the motion in the High Court he consented to an order for discovery of his pre-accident medical records for a period of five years prior to the accident, and also his post-accident records to the limited extent of his initial attendance for medical treatment immediately after the accident. The order as drawn up does not precisely reflect this, but the parties are agreed as to the amendment necessary to properly encapsulate the consent order. The issue between them concerns whether, in addition to the agreed discovery, the defendant is entitled to discovery of the plaintiff's post-accident medical records.

Background – Plaintiff's Case as Pleaded

2 . The underlying proceedings concern an accident which occurred on 13 November 2017 at the defendant's premises, a livestock mart, on which, unsurprisingly, animals were present. The plaintiff claims to have been standing in a designated safe area when a bullock collided with his left leg and caused him an injury. The defendant disputes the plaintiff's claim in its entirety, denies vicarious liability for the actions of a bullock owned by a third party and pleads contributory negligence on the basis that the plaintiff failed to remain in the safety pens and was standing in a part of the mart where animals were kept and through which they were moved. The discovery sought does not relate to the circumstances of the accident but rather to the injury allegedly sustained by the plaintiff as a result of the accident.

3 . The plaintiff issued a personal injury summons on 15 April 2020, some two and a half years after the accident. The particulars of personal injury pleaded suggest that he sustained a soft tissue injury to his left leg which was swollen and bruised in the aftermath of the accident. It is also pleaded that he continued to suffer pain and had difficulty standing, climbing stairs and walking. The particulars state that the plaintiff sought a specialist's referral in March 2018 but do not give any detail as to whether that referral was made and, if so, to whom. The latest date given for attendance at his general practitioner is July 2018, at which stage the plaintiff continued to complain of ongoing leg pain.

4 . On 1 March 2021, the defendant raised a notice for particulars. Most of the queries related to the circumstances of the accident but a few sought further information as to the plaintiff's injury and the medical treatment he had received. At particular no. 16, the defendant sought the identity of the plaintiff's medical attendants, the dates of his attendances and the treatment received and at no. 19, the defendant sought details of any injury of any nature prior or subsequent to the accident the subject of the proceedings. These particulars were replied to nearly a year later on 9 February 2022. The plaintiff declined to answer no. 16 on the basis that the information sought was a matter for evidence. In respect of no. 19, the plaintiff disclosed two matters. The first was that in 1999 he had been involved in a road traffic accident and sustained injuries for which he had received compensation. The second, and more significant, was that he had a history of back pain and a L4/L5 disc bulge. He had undergone spinal surgery in the 1980s.

5 . On the same date, more than four years after the date of the accident, the plaintiff delivered updated particulars of personal injury. These gave details of his attendance at and the opinion of a consultant orthopaedic surgeon. The consultant had carried out investigations of the plaintiff's left lower limb pain, including an MRI scan of his lumbar spine. This showed a compression of the left L5 nerve root which led the consultant to conclude “a dual pathology as the most likely source of the ongoing pain” and that each was contributing equally to the plaintiff's lower leg pain. Despite the plaintiff's historic back issues, it is pleaded that he was not having any major difficulties and was moving well – presumably before the accident. Further, it is pleaded that as of March 2020 (co-incidentally prior to the issuing of the personal injury summons) the plaintiff's general practitioner was of the view that the L5 nerve root may have been aggravated by the trauma received in November 2017 and the ongoing leg pain is described as “referred pain from the L5 nerve root compression”. There is a reference to the plaintiff attending a consultant spinal surgeon in October 2020 and it is unclear if this is the same person as the consultant orthopaedic surgeon. Fairly widespread pain and functional impairment affecting the lumbar spine, left hip and...