McNally v Molex Ireland Ltd & Molex Incorporated

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 11 November 2022
• Neutral Citation: [2022] IEHC 555
• Court: High Court
• Docket Number: Record No. 2018/414Sp

Between

Patrick McNally

Plaintiff

and

Molex Ireland Limited & Molex Incorporated

Defendants

[2022] IEHC 555

[Record No. 2015/4515P]

THE HIGH COURT

Discovery – Negligence – Personal injuries – Plaintiff seeking an order striking out the defence in the proceedings for failing to comply with an order of discovery – Whether a fair trial remained possible

Facts: The plaintiff, Mr McNally, commenced proceedings comprising a claim for personal injuries by means of a personal injury summons which issued on 2nd June, 2015. The plaintiff, who was a mechanical engineer, and who claimed to have been employed by the first defendant, Molex Ireland Ltd, from 1983 to 1990, alleged that he sustained personal injuries, loss and damage as a result of exposure to a particular chemical i.e. Trichloroethylene. A full defence was filed by the defendants on 5th May, 2016 in addition to an assertion that the plaintiff’s claim was stature barred, and without prejudice to that plea, the plaintiff was put on full proof of his claim in every respect. The case came before the High Court by way of a motion issued by the plaintiff on 29th September, 2021 seeking: (1) an order pursuant to O. 31, r. 21 of the Rules of the Superior Courts striking out the defence in the proceedings for failing to comply with the order of discovery made by the Court of Appeal on 13th November, 2019; and (2) such further and/or consequential orders as the court shall deem appropriate.

Held by Heslin J that there had been a failure on the part of the defendants to make proper discovery. Heslin J rejected the defendants’ contention that there had been full compliance with what the Court of Appeal ordered. Heslin J held that the discovery process had been negligent. The state of the evidence did not allow Heslin J to conclude with sufficient confidence that the defendants’ failure to comply with their discovery obligations amounted to a deliberate stratagem to deprive the plaintiff (and, as a consequence, a trial judge) of relevant documentation and information. The Court was aware that the jurisdiction to strike out a defence for failure to make discovery is a discretionary one, citing Hamilton CJ in Mercantile Credit Company of Ireland Limited v Heelan [1998] 1 I.R. 81) and one to be exercised only in extreme cases, citing Murphy v J Donohoe Limited (No. 2) [1996] 1 I.R. 123, where the interests of justice require it. In circumstances where Heslin J took the view that a fair trial remained possible, it seemed to him that the justice of the situation was met by ordering the defendants to comply in full and in a timely manner with the Court of Appeal’s order, by way of an order directing further and better discovery.

Heslin J held that, although the Court would not be striking out the defendants’ defence, the plaintiff was entitled to relief in the form of an order for further and better discovery, with an order for costs in respect of that motion. Heslin J held that the time limit for making discovery should be twelve weeks reflecting, precisely, the period ordered by the Court of Appeal. It seemed to Heslin J that allowing twelve weeks should be more than adequate in circumstances where almost three years had elapsed since the Court of Appeal made its order. Heslin J held that the parties should correspond with regard to the precise terms of the order to be made and should submit an agreed draft to the Registrar within fourteen days. In the event of any dispute between the parties as to the terms of such an order, Heslin J held that short written submissions should be filed within the same fourteen-day period.

Discovery ordered.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 11 ^th day of November 2022.

Introduction

1 . The case comes before this Court by way of a motion issued by the plaintiff on 29 ^th September, 2021 seeking (1) an order pursuant to O.31, r.21 of the Rules of the Superior Courts striking out the Defence in these proceedings for failing to comply with the order of discovery made by the Court of Appeal on 13 November, 2019; and (2) such further and/or order/consequential orders as the court shall deem appropriate. I am grateful to Mr. O'Donoghue SC for the plaintiff and to Mr. McDonagh SC for the defendant who provided detailed written submissions and made skilled oral submissions at the hearing. These were of great assistance to the court in reaching this judgment and I will refer to the principal submissions during this judgment as well as certain of the authorities which counsel on both sides helpfully drew to the Court's attention and which seem to me to be of most assistance in determining the matter.

The Plaintiff's Personal Injuries Proceedings

2 . The underlying proceedings comprise a claim for personal injuries which the plaintiff commenced by means of a personal injury summons which issued on 2 June 2015. In summary, the plaintiff, who is a mechanical engineer, and who claims to have been employed by the first named defendant, from 1983 to 1990, alleges that he sustained personal injuries, loss and damage as a result to exposure to a particular chemical i.e. Trichloroethylene (hereinafter “TCE”). The plaintiff pleads that the first named defendant is a limited liability company which manufactures and repairs products for the electronic industry, with a plant located in Shannon Industrial Estate. He pleads that the second named defendant, with a registered address in Illinois, USA, is the parent company of the first. The plaintiff pleads inter alia, that he was employed in the Shannon plant and, for a minimum of six hours per day, his work was confined to a small workroom within the first named defendant's production plant where he repaired tools and machine parts. The plaintiff pleads that he worked at tool repairing bench and that before, after, and during repairs, tools and machine parts were cleaned in a tool cleaning “tank” within the workroom, which tank was located directly beside the plaintiff's repair bench. The plaintiff pleads that this tank contained a chemical solvent known as TCE. He pleads that when this tank was covered, TCE vapour was exposed to the workroom. The plaintiff pleads that he and his colleagues were required to stand at the tank cleaning tools in TCE with their bare hands and breathing in solvent vapour. He pleads that the workroom was not ventilated and that he was exposed to at least twice the permitted occupational limit of TCE for a period of seven years. The plaintiff pleads that he left this job in January 1990 and that, in 2012, he attended his doctor with symptoms of stiffness; a sore back; dragging of his left leg; and a slowing of his speech and that, in January 2013, he was diagnosed with Parkinson's disease. The plaintiff pleads that in August 2014 he was advised that the probable cause of his Parkinson's disease was exposure to TCE from 1983 to 1990 whilst an employee of the first named defendant at the Shannon plant. Twenty-six allegations of negligence and breach of duty (a) to (z) are pleaded at para. 5 of the personal injury summons.

3 . Among the twenty-six specific pleas of negligence include the following:-

• “(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;

• (d) failing to ensure that the Trichloroethylene tank was covered and properly sealed from the workspace at all times;

• (e) failing to ensure that the tank which contained Trichloroethylene was designed in a way which limited its exposure to employees, and in particular in failing to site the said tank in a well-ventilated outdoor or partially covered space;

• …

• (n) failing to issue the plaintiff with any or 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 minimised risk to 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 defendants' facility, the neurotoxicity of Trichloroethylene was well understood in the industry, as was the need to protect employees from breathing its fumes or 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 remodeled 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 a hinged and unsealed lid thereon closed 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…”.

Defence

4 . A full defence was filed by the defendants on 5 May, 2016 in addition to an assertion that the plaintiff's claim is stature barred, and without prejudice to that plea, the plaintiff is put on full proof of his claim in every respect.

The use of TCE

5 . It is clear from the pleaded case that the use of TCE at the Shannon plant is a central issue for the plaintiff to establish. Indeed, counsel for the plaintiff submitted during the...