Power v Tesco Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 July 2016
• Neutral Citation: [2016] IEHC 390
• Docket Number: [2015No.3682P]
• Court: High Court
• Date: 11 July 2016

BETWEEN

ROSEMARY POWER

PLAINTIFF

AND

TESCO IRELAND LIMITED

DEFENDANT

[2016] IEHC 390

Barrett J.

[2015No.3682P]

THE HIGH COURT

Practice & Procedures – Discovery of documents – O. 31, r. 12 of the Rules of the Superior Courts, 1986 – Personal injury claim – Establishment of link between accident and injuries sustained – Fair disposal of the proceedings

Facts: The defendant sought an order for discovery of certain medical records in a personal injury claim instituted by the plaintiff arising out of the slip-and-fall. The plaintiff contended that she had sustained serious injuries in that accident. The defendant, though admitting the occurrence of the accident, nonetheless disputed the nature and the extent of injuries sustained by the plaintiff. The defendant contended that the documents that he sought were necessary to prove a casual link between the accident and the injuries allegedly sustained by the plaintiff.

Mr Justice Max Barrett granted an order to the defendant to seek the requisite medical records of the plaintiff subject to its being limited to a three-year period with liberty to the defendant to bring a suitable application under o.39, r. 47 of the Rules of the Superior Courts, 1986, in case there was deficiency in the compliance of the order of the discovery. The Court, in line with the decision of the Supreme Court in the case of McGrory v ESB [2003] 3 I.R. 407, observed that the interest of justice demanded that there must be a fair disclosure of all the relevant information for a fair disposal of the proceedings. The Court held that in a personal injury claim, there should be examination of the plaintiff by the defendant's doctor and if the defendant's doctor was of the opinion that there was a preexisting condition, the Court would grant the access to prior medical history provided that the defendant could show that it was relevant to establish the link between the parties.

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2016.

Part 1

Introduction

1 While working as a general retail assistant with Tesco Ireland Limited, Ms Power injured herself in July, 2014 when she fell over shopping crates that had been placed in her way. She has since commenced these personal injuries proceedings. Tesco concedes that the accident occurred but denies that Ms Power suffered the various injuries that she claims; and it requires that Ms Power prove the causal link between the accident and the injuries that Ms Power claims to have suffered.

2 Pursuant to O. 31, r.12 of the Rules of the Superior Courts 1986, as amended, Tesco now comes to court seeking discovery of various categories of medical records. The full categories, as stated in the notice of motion, are identified later below. In its solicitor's affidavit offering the different rationales for each of the categories of documentation of which discovery is sought, there appears the additional statement that ‘Sight of the said medical records is also sought by way of disclosure in accordance with the decision of the Supreme Court in the case of McGrory v. ESB [2003] 3 I.R. 407.’ And during the hearing of the within application, the court was referred in passing to the decision in McGrory. Notably, however, no order has been sought by Tesco under O. 39, r.47, by reference to some alleged want of disclosure by Ms Power.

Part 2

Disclosure and Discovery

3 Personal injury proceedings are a sub-category of civil litigation with their own particular concerns when it comes to issues of disclosure and discovery. The most significant distinguishing feature of personal injuries cases is of course the disclosure requirements extant under the Rules of the Superior Courts (No 6) (Disclosure of Reports and Statements) 1998( S.I. 391 of 1998) which added a new series of rules (rules 45-51) to Order 39 of the Rules of the Superior Courts that formalised and amplified upon the judicially approved arrangements as to disclosure that had previously pertained.

4 Order 39, rule 45(1)(a) of the Rules of the Superior Courts, 1998 provides that the disclosure rules apply to ‘any claim for damages in respect of any personal injuries to a person howsoever caused’. This is a form of wording which suggests that there must be some connection or relation between a plaintiff's claim and the personal injuries s/he has sustained, and this in itself frames rules 45 to 51.

5 Order 39, rule 46(1) and (2) require parties to disclose two categories of information. In summary, these are (1) schedules listing all reports from expert witnesses intended to be called, and (2) statements detailing certain prescribed information such as the names and addresses of witnesses intended to be called and a full statement of all items of special damage. Disclosure between the parties should generally be contemporaneous. As to (1), only expert reports prepared by an expert whom it is intended to call to give evidence need be disclosed; if, at any time prior to disclosure, an expert ceases to be an expert whom it is intended to call to give evidence, her or his expert report need not be disclosed.

6 Notably, a party to litigation is required only to disclose reports prepared by experts. Order 39, rule 46(1)(e) gives some guidance as to who might be considered an expert; however, it is not a definitive listing of who constitutes an expert. For example, it does not mention psychotherapists who are undoubtedly experts in their professional field. To allow for the evolution of new expert disciplines in the ever-expanding domain of science, this Court would tend to be guided by the reference in s.2 of the Civil Liability and Courts Act 2004 to expert evidence being ‘evidence of fact or opinion given by a person who would not be competent to give such evidence unless he or she had a special skill or expertise’. So when, for example, a solicitor is deciding if a particular report is an expert report, the question s/he needs to pose to herself or himself is whether the author of that report is a person who would not be competent to offer the opinions contained in that report unless s/he had a special skill or expertise arising.

7 Order 39, rule 45(1)(e) defines what is meant by a report. Although it does not prescribe a form of report, if an expert is to serve the purpose for which a report is called, any opinion disclosed by an expert in her or his report ought to touch upon the factual matrix on which that opinion is based. An expert need not commit to writing every opinion that s/he holds; however, the effect of Payne v. Shovlin [2006] I.E.S.C. 5, a case not opened to the court but well known to practitioners in the field of personal injuries, appears to be that any expert opinion committed to written form, favourable or adverse, ought to be disclosed.

8 The most elementary form of disclosure in personal injuries proceedings is when a plaintiff tenders herself or himself for examination by a physician retained by the defendant. This has happened in the within proceedings. The uneasy balance between a plaintiff's constitutional right to privacy and the constitutional demands as to fairness of proceedings which any such examination presents is pragmatically reconciled by the courts through their being willing to grant a stay pending a plaintiff's attendance for medical examination. This practice has received the sanction of the Supreme Court in McGrory v. ESB [2003] 3 I.R. 407 (considered below). And that sanction removes any doubt which might perhaps otherwise have presented as to whether, by granting such a stay, the courts were compromising to some extent a plaintiff's right to privacy.

9 McGrory imposes a general duty of cooperation on plaintiffs in personal injury cases, especially as regards a plaintiff's attending for examination with a defendant's doctor. Stated briefly, it seems to this Court that the following principles can properly be identified from the judgment of Keane C.J. for the Supreme Court in that case.

I. Promotion of Settlements.

1 The interests of justice are served by the promotion of settlements rather than the prolongation of litigation and by the possibility of early, complete preparation for both parties to a trial rather than by obliging one party to delay its full preparation until after the trial has started. (McGrory, 412 (by reference to O'Sullivan v. Herdmans Ltd. [1987] 1 W.L.R. 1047, 1056)).

II. Granting a Stay.

2 The court has ample (inherent) jurisdiction to grant a stay whenever it is just and reasonable so to do. (McGrory, 411 (by reference to Edmeades v. Thames Board Mills [1969] 2 Q.B. 67)).

[Keane C.J. later identifies, at 415, three instances where this inherent jurisdiction ‘should be exercised’, viz. where a plaintiff (a) (i) refuses to submit to medical examination or (ii) refuses to disclose his medical records to the defendant, or (b) refuses to permit the defendant to interview his treating doctors. Given Keane C.J.'s separate endorsement, in McGrory, of the judgment of the Court of Appeal of England and Wales in Dunn v. British Coal Corporation [1993] I.C.R. 591, it appears that the reference to non-disclosure of medical records is to relevant medical records relating to injuries which are the subject of the action.]

III. Interviewing Opponent's Witnesses.

3 There is no property in a witness of fact. (McGrory, 412 (by reference to Harmony Shipping Co. v. Saudi Europe [1979] 1 W.L.R. 1380, 1384)).

4 The court, vested with the primary duty of ascertaining the truth, has a right to every man's evidence. (McGrory, 413 (by reference to Harmony)).

5 No side to proceedings can debar the court from ascertaining the truth by seeing a witness of fact before trial or by purchasing his evidence or by making communication to him. (McGrory, 413 (by reference to Harmony)).

6 No side to proceedings can prohibit the other side from seeing a witness of fact,...