Moore v St. John of God Community Services Company CLG and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IEHC 272 |
| Court | High Court |
| Docket Number | 2019 No. 1721 P |
[2023] IEHC 272
2019 No. 1721 P
THE HIGH COURT
Sheila Reidy for the plaintiff instructed by Hamilton Sheahan & Co
Ciarán Lawlor for the defendants instructed by Clyde & Co (Ireland) LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 25 May 2023
This judgment is delivered in respect of a contested application for the discovery of documents. The application is made in the context of a personal injuries action arising out of an incident whereby the plaintiff, a care assistant employed by St. John of Gods, alleges that she was physically assaulted twice by a service user. The alleged assaults are said to have occurred on a single date in November 2017 while the plaintiff was attending upon the service user at the accident and emergency department of Connolly Hospital Blanchardstown.
The plaintiff has sought discovery of categories of documents including, inter alia, records in respect of any previous assaults by the service user on staff members; any risk assessments completed in respect of the service user; and documents in respect of management and care plans applicable to the service user, including any positive behavioural support plan.
The plaintiff contends that discovery of these categories of documents is necessary and relevant in order to prove her claim for personal injuries and states that these categories have been specifically requested by her expert. In particular, it is said that the pre-existing propensities of the service user for aggressive outbursts and/or violent behaviour—and the defendants' level of knowledge of same—will be of clear relevance to the issue of liability.
The application for discovery is opposed by the defendants on two broad grounds as follows. First, it is said that the application is speculative in circumstances where there is no plea that the service user has previously assaulted staff members. Secondly, it is said that the plaintiff should have joined the service user as a defendant to the personal injuries action: had this been done, then discovery of confidential material relating to the service user could have been sought from the service user directly, rather than indirectly via the defendants.
The question of whether a category of documents is relevant falls to be determined by reference to the pleadings. The scope of the issues which arise for the trial and which, thus, inform the extent of the documentation which may be considered relevant, is determined by the way in which the parties choose to plead their case ( Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 I.R. 211 (at paragraph 57)).
The position has been put as follows by the Court of Appeal in O'Brien v. Red Flag Consulting Ltd (at paragraph 27):
“[…] A document is relevant if it may reasonably form the basis of a line of enquiry which may lead to the discovery of information that will advance the case of the seeker and/or weaken that of the party against whom it is sought. It is sufficient that a document may contain such information. It is not necessary to prove that it will. Relevance is determined on the basis of the pleadings and not the evidence. A plea must be taken at its high watermark and it is generally not the role of the court to embark on an enquiry as to the strength of the case or the probability of proving a pleaded fact. However, it is not open to a party to submit a bare and unparticularised plea in the hope of using discovery to obtain evidence in support of a claim that is not particularised. In particular, a document cannot be sought for the purposes of demonstrating the existence of a claim where there is no other evidence to suggest that one exists. Discovery may be permitted for the purposes of evidencing a sparsely particularised claim where the impugned activity is alleged to have been committed in a surreptitious and clandestine fashion.”
Here, the defendants have chosen, in the defence delivered on their behalf, to resist the claim against them on the grounds, inter alia, that the alleged assault was not reasonably foreseeable and that there were no reasonably practicable steps which the defendants could have taken to avoid or halt the alleged incidents. As part of this plea, it is expressly pleaded that the plaintiff had been trained for the task assigned to her, including in respect of the management of “ challenging behaviour”; that the service user had been “ appropriately assessed”; that the management of the service user had been “ appropriately resourced”; and that the plaintiff had been made aware of “ the appropriate information” in relation to the service user.
The clear import of these pleas is that the risk of challenging behaviour on the part of the service user had been appropriately assessed and that the appropriate information had been communicated to the plaintiff in her capacity as his care assistant. Having pleaded that an appropriate assessment has been performed, the defendants cannot now object to being required to make discovery of the documentation which evidences that assessment. In light of the pleadings, one of the principal issues which will have to be addressed by the trial judge is whether an assault by the service user was reasonably foreseeable. A previous pattern of aggressive behaviour is, logically, relevant to this issue.
Counsel on behalf of the defendants submits that there is no positive plea on the part of the plaintiff to the effect that the service user has previously assaulted staff members. It is further submitted that the case, as pleaded by the plaintiff, is confined to the two alleged assaults both of which took place on the same day. With respect, this submission fails to consider the pleadings in the round and overlooks the positive case which has been pleaded on behalf of the defendants themselves.
Moreover, it would be unreasonable to oblige the plaintiff to provide evidence of previous assaults as a precondition to seeking discovery. Whether or not there have been previous assaults is a matter within the peculiar knowledge of the defendants. The plaintiff has alleged in her pleadings that she had been assaulted by the service user and has verified this plea on affidavit as required under the Civil Liability and Courts Act 2004. It is neither speculative nor a fishing expedition for the plaintiff to seek discovery on the grounds that there may well have been previous assaults on staff and that same will have been documented.
The defendants' reliance on the judgment in McCormack v. Health Service Executive [2021] IECA 272 is misplaced. There, the claimant in a personal injuries action had pleaded that she had been continuously exposed to the risk of injury...
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Murphy v Commissioner of an Garda Síochána
...35 . In this regard, I agree with the view of Simons J. in Moore v. St. John of God Community Services Company CLG and the HSE [2023] IEHC 272 where he said as follows at para. 9: “ Counsel on behalf of the defendants submits that there is no positive plea on the part of the plaintiff to th......