McNally v Molex Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 13 November 2019
• Neutral Citation: [2019] IECA 284
• Docket Number: Record No: 286/2019
• Court: Court of Appeal (Ireland)
• Date: 13 November 2019

[2019] IECA 284

THE COURT OF APPEAL

Edwards J.

McGovern J.

Donnelly J.

Record No: 286/2019

PATRICK MCNALLY

APPELLANT/PLAINTIFF

V

MOLEX IRELAND LIMITED

AND

MOLEX INCORPORATED

RESPONDENTS/DEFENDANTS

Discovery – Personal injuries proceedings – Proportionality – Appellant seeking discovery – Whether the respondents discharged their onus of showing that the discovery sought was unnecessary

Facts: The appellant/plaintiff, Mr McNally, appealed to the Court of Appeal against the ex tempore judgment and order of Noonan J dated the 21st of May, 2019, refusing to grant discovery to the plaintiff in the following terms: “Any documentation in the defendants’ possession or within the defendants’ procurement relating to all claims of the occurrence of any neurodegenerative disorders or injuries from the use of Trichloroethylene, Gizer or Gun Kat at any of the defendants’ production or workplace facilities worldwide.” The application for discovery of this category of documents arose in the context of personal injuries proceedings brought by the plaintiff.

Held by Edwards J that, in all the circumstances of the case, he was satisfied that the respondents/defendants, Molex Ireland Limited and Molex Incorporated, had not discharged their onus of showing that the discovery sought was unnecessary on account that it would be unduly burdensome and/or disproportionate having regard to the existence of alternative means of obtaining the information sought. Edwards J held that in so far as the High Court judge found otherwise he was in error, although in fairness to him his decision was rendered, as had been pointed out, before the Supreme Court delivered its judgment and ruling in Tobin v Minister for Justice [2019] IESC 57.

Edwards J held that he would allow the appeal and grant an order for discovery in the following terms: “Any documentation in the defendants’ possession or within the defendants’ procurement relating to all claims of the occurrence of any neurodegenerative disorders or injuries from the use of Trichloroethylene, Gizer or Gun Kat at any of the defendants’ production or workplace facilities in Ireland and North America.”

Appeal allowed.

JUDGMENT of Mr Justice Edwards delivered on the 13th of November, 2019.

Introduction

1 This is an appeal against the ex tempore judgment and Order of Noonan J. dated the 21st of May, 2019, refusing to grant discovery to the appellant/plaintiff in the following terms:

“Any documentation in the defendants' possession or within the defendants' procurement relating to all claims of the occurrence of any neurodegenerative disorders or injuries from the use of Trichloroethylene, Gizer or Gun Kat at any of the defendants' production or workplace facilities worldwide.”

2 For convenience, the appellant/plaintiff will be referred to throughout this judgment simply as “the plaintiff”; and the respondents/defendants will be referred to simply as “the defendants”, or if referred to individually as “the first named defendant” or “the second named defendant”, as appropriate.

The context in which the disputed category of discovery was sought

3 The application for discovery of this category of documents arises in the context of personal injuries proceedings brought by the plaintiff in the following circumstances. The first named defendant manufactures and repairs products for the electronics industry at its plant at Shannon, County Clare. The plaintiff, who is a mechanical engineer, claims to have been employed, by the first named defendant (a matter that is disputed), at that plant from February 1983 until January 1990. It is pleaded that the second named defendant is the parent company of the first named defendant with a registered address in the United States of America and that at all material times the second named defendant controlled and supervised the operations of the first named defendant.

4 The plaintiff's case, as pleaded, is that he suffered personal injuries, loss and damage as a result of exposure to a chemical solvent, i.e. trichloroethylene, in the course of his work at the said plant at Shannon, County Clare; which exposure, it is alleged, was caused by the negligence, breach of duty and breach of contract of the defendants, and each of them, their servants or agents. This the “wrong” alleged against the defendants.

5 Various particulars are pleaded as to the acts of the defendants, their servants or agents said to constitute the alleged wrong and concerning the circumstances in which the alleged wrong was committed. Amongst these it is pleaded that the plaintiff's work was to repair tools and machine parts in a small workroom within the production plant. It is further contended that for a minimum of six hours per day the plaintiff's work was confined to this small workroom and that the plaintiff worked an average of 48 hours per week in shifts of either 8 or 12 hours. It is pleaded that the plaintiff worked at a tool repair bench and that before, during and after the repair work carried out by him, tools and machine parts were cleaned in a tool cleaning tank within the workroom. The plaintiff contends that this tank was directly beside his repair bench and that it contained a chemical solvent known as trichloroethylene, otherwise known as TCE, and also known as “trike”, which was pumped under pressure onto the tools and machine parts which had been placed on a mesh within the tank for cleaning, before being returned to a reservoir and recirculated in the same manner until the process was complete. The plaintiff alleges that when this tank was uncovered, the workroom, and those present within it, were exposed to trichloroethylene vapour. It is pleaded that the plaintiff and his colleagues were required to stand at this tank while cleaning the tools in trichloroethylene with their bare hands, and all the while breathing in solvent vapour. It is pleaded that the plaintiff was exposed to trichloroethylene vapour at concentrations of between 1000 and 8900 mg/m ³, and that this was at least twice the occupational exposure limit permitted at that time. It is further pleaded that the workroom was not ventilated with fresh air and that no air extraction system was in place. The plaintiff claims to have been exposed to trichloroethylene at these high levels for a period of seven years and that in consequence of this he has developed Parkinson's disease.

6 The personal-injury summons goes on to set forth some twenty six specific allegations of negligence and breach of duty designated (a) to (z) respectively. Amongst these are the following pleas which may, inter alia, be of relevance to the category of discovery in controversy in this appeal:

(a) exposing the plaintiff to trichloroethylene, a known neurotoxin;

(b) exposing the plaintiff to trichloroethylene at levels that were unsafe;

(c) exposing the plaintiff to trichloroethylene levels which exceeded the occupational exposure limits permitted at that time;

(n) failing to issue the plaintiff with any or any appropriate safety guidelines or otherwise to train and instruct him on the safe use of trichloroethylene;

(o) failing to protect the health and safety of the plaintiff as an employee, and in particular failing to consider and evaluate the health risks posed by the use of trichloroethylene;

(p) failing to provide the plaintiff with any direction or instruction on how the job was to be performed safely and with minimized risk to his health;

(r) failing to instruct or to properly instruct the plaintiff in the safe use of a neurotoxic agent;

(x) failing to warn the plaintiff of the dangers of being exposed to trichloroethylene;

(z) at the time of the plaintiff's employment at the defendant's facility, the neurotoxicity of trichloroethylene was well understood in the industry, as was the need to protect employees from breathing its fumes and allowing absorption through the skin. The defendants' efforts at ventilating the plaintiff's workspace from noxious fumes consisted of removing some ceiling tiles in the summer months. In or about 1985 when the workspace was relocated to a remodelled workspace with the addition of blower heaters and coolers, the defendants failed to avail of the opportunity to provide mechanical extraction ventilation and/or modify the work process. In respect of the cleaning tank, the defendants' instructions were merely to keep her hinged and unsealed lid thereon when not being used for cleaning tools. In the circumstances there was an egregious and wilful disregard for the safety of the plaintiff and his colleagues ….

7 The Personal Injuries Summons in this case is dated the 2nd of June, 2015. A Defence was filed on behalf of the defendants on the 5th of May, 2016. This contains a preliminary objection asserting that the plaintiff's claim is statute barred. Without prejudice to that, the Defence is essentially a traverse of the plaintiff's claim and it puts the plaintiff on proof of all of the essential components of his claim, including, but not confined to; proof of all particulars of the acts of the defendants allegedly constituting the wrong, proof of the particulars of the circumstances relating to the alleged commission of the wrong, proof of the particulars of negligence and/or breach of duty and/or breach of contract alleged on the part of the defendants, their servants or agents, and proof of the particulars of injuries allegedly sustained by the plaintiff. It denies inter alia that the plaintiff's development of Parkinson's disease has anything to do with his employment history. Further, it is asserted by way of substantive defence that the plaintiff was not in fact employed at the material times by the defendants but rather was employed by another company, Molex Illinois S. A. Geneve; and that the defendants are not liable for or responsible in law for any negligence, breach of duty or breach of contract on the part of Molex...