McCarthy v O'Flynn

• Jurisdiction: Ireland
• Judge: Henchy J.,O'HIGGINS AGREEING,KENNY J.:
• Judgment Date: 01 January 1980
• Neutral Citation: 1978 WJSC-SC 1733
• Court: Supreme Court
• Docket Number: [S.C. No. 55 of 1979],No. 3175P/1974
• Date: 01 January 1980

McCARTHY v. O'FLYNN

LORRAINE McCARTHY

v.

LIAM O'FLYNN

1978 WJSC-SC 1733

Higgins C.J.

Henchy J.

Kenny J.

No. 3175P/1974

THE SUPREME COURT

1 Judgment of Henchy J. O'HIGGINS AGREEINGdelivered the 19 June 1979

2 The question in this appeal is whether an order directing discovery of documents may be made when what is sought to be discovered is X-ray films. In the High Court, the judge thought not. He felt he should follow the decision of McLoughlin J. in Lynch v. Fleming 1953/4 Ir. Jur. Rep. 45 where discovery of X-ray plates or photographs was refused because they did not appear to be "capable of being interpreted as the thoughts or ideas of any person".

3 In my opinion, that is too narrow a test of what is to be deemed a document for the purpose of the rule(0. 31, r. 12).

4 The purpose of discovery is to provide, by means of this pre-trial procedure, against unfair evidential advantage being taken at the trial. If discovery of documents is ordered, the party against whom the order is made must make an affidavit in the prescribed form, setting forth in a schedule all the documents relating to the issue, specifying those of them which he objects to produce, and those which are no longer in his possession or power (0. 3, r.l3).

5 The party who has made discovery may be served with a notice to produce any of the discovered documents for inspection and to permit copies of them to be made. If he fails to comply with the notice he shall not, in the absence of special cause, be allowed "to put any such documents in evidence on his behalf in such cause or matter" (0. 31, r. 15).

6 While a "document", in its dictionary meaning, connotes any thing that furnishes evidence, and while the word, as used in the Rules of the Superior Courts, varies in the scope of its meaning with thecontext(see, for example, the special definition of it given by 0. 107, r.l for the purpose of that Order and the distinction drawn in other rules between "document" and "exhibit"), I think it should be construed in the discovery rules in terms of the scheme and purpose of those rules. Thus read, I consider the word to include any thing which, if adduced in evidence at the hearing of the proceedings, would be put in, or become annexed to, the court file of the proceedings, All such things are part of the documentation of the case and qualify for preservation as part of the court archives. The aim of the relevant rules is to enable a party to learn, in advance of the trial, of the existence of the documents on which his opponent might rely at trail; to give the party who has got discovery an opportunity of seeking production for inspection of any of those documents; and to debar the party who has made discovery from introducing in evidence at the trial such documents as he ought to have discovered. The word "document", therefore, should be construed so that it will comprehend the full range of things which couldbecome part of the court file at the end of the hearing of the proceedings in question. In that sense, the word would clearly include X-ray films.

7 I would therefore allow this appeal and order discovery of the X-ray films in question.

8 It is difficult to understand why it is only now, five years after the accident, that the proceedings have reached the stage when the defendant is seeking discovery. Prima facie, there has been undue delay in bringing the case to trial. Whether the plaintiff's advisers can justify that delay remains to be seen.

9 Judgment delivered 19th June 1979. KENNY J.:

O'HIGGINS AGREEING.

10 This is an action in which the plaintiff seeks damages for personal injuries claimed by her to have been sustained in a motor car accident on 1st January, 1973. She was a pillion passenger on a motor-bicycle on that day when it was in collision with the defendant's motor car. The plaintiff's injuries seemed, immediately after the accident, to be trivial but, on 11th August, 1973, she had some kind of fit or...