Sneyd v Stripes Support Services Ltd trading as Kammac Support

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 68
• Court: High Court
• Docket Number: [Record No. 2013/13623P]

Between:

Peter Sneyd

Plaintiff

and

Stripes Support Services Limited T/A Kammac Support Services, Diageo Ireland Limited and Shannon Transport International Limited

Defendants

[2023] IEHC 68

[Record No. 2013/13623P]

THE HIGH COURT

Personal injury – Delay – Want of prosecution – First and second defendants seeking to strike out the plaintiff’s action against them on grounds of delay and want of prosecution – Whether the delay in the case was inordinate and inexcusable

Facts: The plaintiff, Mr Sneyd, was employed by the first defendant, Stripes Support Services Ltd, at the premises owned and operated by the second defendant, Diageo Ireland Ltd. He was a forklift truck driver, who ferried pallets of produce around the premises of the second defendant. Subsequent to the onset of the plaintiff’s injuries, the business of the first defendant was taken over by the third defendant, Shannon Transport International Ltd. The plaintiff alleged that due to the negligence and breach of duty on the part of the defendants and each or either of them, he was caused to suffer personal injury, loss and damage. In particular, his case was that due to the fact that he was required to drive an unsafe forklift truck across uneven terrain at the premises of the second defendant on a repeated basis, he was caused to suffer pilonidal sinus in his natal cleft and rectum areas. He alleged that the forklift truck was in an unsafe and dangerous condition, because it did not have adequate suspension, or protection from vibration for operatives driving the machine. He alleged that the second defendant was negligent for failure to maintain the premises in a safe and proper condition. The plaintiff’s claim was in the nature of a repetitive strain injury, in that there was not one single accident, or event which gave rise to his injuries, but rather, they became manifest over time due to the conditions in which he was required to work. Proceedings were commenced by personal injury summons issued on 12th December, 2013. The pleadings closed with the delivery of separate defences on behalf of each of the defendants in May and June 2015. On 5th October, 2021, the first defendant issued its motion seeking to have the plaintiff’s action against it struck out for delay and want of prosecution. A notice of motion in similar terms was issued by the second defendant on 20th January, 2022.

Held by Barr J that while the delay in the case was inordinate, it was not inexcusable. Barr J held that this was not a simple personal injury action; it was an action in which causation and liability were going to pose considerable difficulties of proof for the plaintiff at the trial of the action. Barr J held that it was necessary for the plaintiff’s solicitor to engage in considerable investigation of both the medical and liability aspects of the case. Barr J found that the plaintiff’s solicitor also had to deal with the various requests for voluntary discovery that had come in from the defendants; in that regard, there had been requests for provision of the plaintiff’s medical records and also of his financial records. Barr J was satisfied from the detail of the work done, as set out in Mr Hutchinson’s affidavits, that the plaintiff’s solicitor did the best that he could in the years leading up to March 2020. Barr J accepted Mr Hutchinson’s evidence that following the rolling lockdowns that were imposed at that time and given the restrictions that existed within the medical system, which were struggling to deal with the effects of the pandemic, it was reasonable that there were delays in obtaining copies of the plaintiff’s medical records and making discovery of same at that time. Regarding the defendants’ complaint of the delay in the period 2016 to 2021, Barr J found that this ignored the fact that from March 2020 to June/July 2021, it was not possible to set down witness actions for hearing due to the Covid-19 pandemic. Barr J held that the plaintiff could not be blamed for the action not being heard during that period. Barr J held that it was not necessary to consider the third question under the Primor test: Primor PLC v Stokes Kennedy Crowley [1996] 2 IR 459.

Barr J refused the reliefs sought by each of the defendants in their respective notices of motion.

Reliefs refused.

JUDGMENT ofMr. Justice Barrdelivered on the 17 ^th day of February, 2023.

Introduction.

1 . This is an application by the first and second defendants to strike out the plaintiff's action against them on grounds of delay and want of prosecution.

2 . At all material times the plaintiff was employed by the first defendant, at the premises owned and operated by the second defendant. In essence, he was a forklift truck driver, who ferried pallets of produce around the premises of the second defendant. Subsequent to the onset of the plaintiff's injuries, the business of the first defendant was taken over by the third defendant.

3 . In these proceedings, the plaintiff alleges that due to the negligence and breach of duty on the part of the defendants and each or either of them, he was caused to suffer personal injury, loss and damage. In particular, his case is that due to the fact that he was required to drive an unsafe forklift truck across uneven terrain at the premises of the second defendant on a repeated basis, he was caused to suffer pilonidal sinus in his natal cleft and rectum areas. He alleges that the forklift truck was in an unsafe and dangerous condition, because it did not have adequate suspension, or protection from vibration for operatives driving the machine. He alleges that the second defendant was negligent for failure to maintain the premises in a safe and proper condition. In essence, the plaintiff's claim is in the nature of a repetitive strain injury, in that there was not one single accident, or event which gave rise to his injuries, but rather, they became manifest over time due to the conditions in which he was required to work.

4 . Proceedings were commenced by personal injury summons issued on 12 ^th December, 2013. The pleadings closed with the delivery of separate defences on behalf of each of the defendants in May and June 2015.

5 . On 5 ^th October, 2021, the first defendant issued its motion seeking to have the plaintiff's action it struck out for delay and want of prosecution. A notice of motion in similar terms was issued by the second defendant on 20 ^th January, 2022.

Chronology of Key Dates.

12 th March, 2012	The plaintiff attends with his GP due to intermittent problems with his natal cleft.
April 2013	Plaintiff is advised that his condition was as a result of the type of work that he had been carrying out.
12 th December, 2013	Personal injury summons issued.
February/March/April 2014	Personal injury summons served on the defendants.
5 th March, 2014	Notice for particulars raised by first defendant.
10 th April, 2014	Notice for particulars raised by third defendant.
19 th May, 2014	Replies furnished to first defendant.
28 th May, 2014	Notice for particulars raised by second defendant.
26 th August, 2014	Replies furnished to second and third defendants.
1 st April, 2015	Further particulars sought by second defendant.
24 th April, 2015	Further replies furnished to second defendant.
11 th May, 2015	Delivery of defence by third defendant.
12 th June, 2015	Delivery of defence by second defendant.
17 th June, 2015	Delivery of defence by first defendant.
18 th November, 2015	Discovery made by plaintiff to second defendant.
21 st August, 2017	Further particulars raised by first defendant.
14 th September, 2017	First defendant seeks voluntary discovery.
11 th December, 2017	Further replies furnished to first defendant.
17 th October, 2018	Instructions furnished to senior counsel seeking an advice on proofs.
28 th January, 2019	Consulting engineer furnishes report.
22 nd February, 2019	Advice on proofs furnished by senior counsel.
29 th September, 2021	Letter from counsel with draft notices.
5 th October, 2021	Notice of motion to strike out on grounds of delay issued by first defendant.
1 st November, 2021	Reply to third defendant's defence.
1 st November, 2021	Plaintiff serves further particulars of negligence and breach of duty and of personal injury.
16 th December, 2021	Plaintiff seeks voluntary discovery from all defendants.
20 th January, 2022	Notice of motion to strike out action on grounds of delay issued by the second defendant.
21 st January, 2022	Plaintiff furnishes affidavit of discovery to first defendant.
2 nd March, 2022	Plaintiff services notice of trial.

6 . Some of the dates given by the plaintiff's solicitor in the chronology in his affidavit were marginally inaccurate and have been corrected in the chronology set out above.

The Evidence.

7 . The evidence on behalf of the first defendant was contained in an affidavit sworn on 1 ^st October, 2021, by Ms. Sinéad Connolly, the first defendant's solicitor. In that affidavit, she outlined how the pleadings had closed with her client, with the delivery of a defence on its behalf on 17 ^th June, 2015. Thereafter, a notice seeking further and better particulars had been raised by the first defendant on 21 ^st August, 2017, to which replies had been furnished by the plaintiff on 11 ^th December, 2017. On 14 ^th September, 2017, a request for voluntary discovery had been made by the first defendant to the plaintiff. By letter dated 8 ^th November, 2017, the plaintiff, through his solicitor, had agreed to provide voluntary discovery.

8 . Ms. Connolly stated that apart from those steps, no other steps had been taken in the proceedings, other than an exchange of correspondence in relation to affidavits of verification. She stated that by letter dated 10 ^th August, 2020, she had...