Taylor v Clonmel Healthcare Ltd
Practice - Discovery - Purpose - Requirement to specify documents sought and reasons - Necessity for discovery to fairly dispose of cause or matter - Burden of proving necessity - Whether strict compliance with Rules necessary - Object of amendment of Rules - Powers of Master of High Court - Exercise of jurisdiction of High Court by Master - Rules of the Superior Courts 1986 (S.I. No. 15), O. 31 - Rules of the Superior Courts (No. 2) (Discovery) 1999 (S.I. No. 233).
Cur. adv. vult.
11th February, 2004
1 I have read the judgment to be delivered by Geoghegan J. and I agree with it.
2 This is an appeal from an order of the High Court (Murphy J.), dismissing an appeal from an order of the Master of the High Court, refusing an application by the plaintiff for an order for discovery of documents.
3 The action is for damages for personal injuries arising out of alleged exposure to noxious substances in the course of the plaintiff's employment with the defendant. The essence of the claim is contained in the following extract from para. 4 of the statement of claim which reads as follows:-
"The plaintiff was employed with the defendant from in or around the month of March, 1989 until in or around the month of February, 2000 in the defendant's said factory premises and in the course of her employment she has been exposed to quantities of noisome and noxious dust, fumes and vapours, including penicillin powder, in consequence whereof the plaintiff sustained severe personal injuries and has suffered and continues to suffer loss and damage.
The plaintiff developed symptoms of cough, breathlessness and wheeze. The plaintiff developed asthma. The combination of normal spirometry tests and marked wheeze in the plaintiff suggests a large amount of inflammation in her small-calibre airways, the bronchioles and her present wheezes suggest a lot of current airway obstruction in her small bronchioles. The plaintiff has suffered and continues to suffer much pain, inconvenience, loss of amenities of life, loss of earning capacity and loss of enjoyment of life and has been and continues to be gravely affected in her social, working, domestic and recreational life…"
The remainder of the paragraph deals with particulars of special damage which are not relevant to this application.
4 A defence was delivered on the 21st October, 2002, the relevant part of which, for the purposes of this application, is contained in para. 1, which reads as follows:-
"It is denied that, during the course of her employment with the defendant, the plaintiff was exposed to the alleged or any quantities of noisome or noxious dust or any dust, fumes or vapours. It is denied that, during the course of her employment with the defendant, the plaintiff was exposed to penicillin powder as alleged or at all. If the plaintiff was exposed to the alleged or any dust, fumes, vapours or penicillin powder (all of which is denied) then it is denied that as a consequence thereof the plaintiff sustained the alleged or any personal injuries or suffered, or continues to suffer the alleged or any loss or other damage."
On receipt of delivery of that defence, the solicitors for the plaintiff wrote a letter to the solicitors for the defendant dated the 7th November, 2002, seeking voluntary discovery in accordance with O. 31, r. 12 of the Rules of the Superior Courts, as amended since the 3rd August, 1999, by the Rules of the Superior Courts (No. 2) (Discovery) 1999. I think it useful to set out in the judgment the terms of this letter and some of the subsequent correspondence relating to discovery. The letter of the 7th November, 2002, reads as follows:-
"Re: Marie Taylor v. Clonmel Healthcare Ltd. High Court
We acknowledge receipt of your defence and note that your client denies that the plaintiff was exposed to the alleged or any quantities of noisome and noxious dust or any dust, fumes or vapours. We note that it is further denied that, during the course of her employment with the defendant, the plaintiff was exposed to penicillin powder. We further note that you advised that if the plaintiff was exposed to any dust, fumes, vapours or penicillin powder then it is denied, as a consequence thereof, the plaintiff sustained the injury complained of in the statement of claim. We further note that it is denied that the plaintiff sustained any injury. We note that your client denies that it was guilty of the negligence, breach of duty and breach of statutory duty as set out in the statement of claim. Arising from your denial we now require that the defendant agrees to make voluntary discovery on oath of all documents which are or have been in its possession relating to matters in question in the said proceedings and in particular the following documentation:-
1. system of work;
2. the precautions (if any) taken to prevent injury from materials used in the work/performing part of the workplace;
3. the nature of all materials used in or forming part of the work or place of work;
4. employment documentation relevant to the plaintiff to include the plaintiff's employment file, personnel file and medical file;
5. any other documents in the possession, power or control of the defendant in relation to the issues as pleaded.
Please be advised that:-
(a) the plaintiff makes this requirement pursuant to the Rules of the Superior Courts 1986 and
(b) the discovery which the defendant is hereby required to agree to make is discovery which shall be made in like manner and form and shall have the like effect as if directed by order of the High Court and
(c) if the defendant agrees to make the said discovery within the time required namely, 42 days from the date of this letter and fails to make such discovery within the said time, the plaintiff may make application pursuant to the Rules of the Superior Courts 1986 in respect of the defendant's failure to make the said discovery within the said time.
Please also note that unless, within 10 days from the date of this letter, the defendant confirms its agreement to make the discovery hereinbefore required, an application will be made on behalf of the plaintiff to the court for an order requiring that the defendant does make the said discovery and for the costs of and incidental to, the said application; and this letter and the defendant's failure to advise us, as required, that it agrees to make the said discovery required shall be relied upon to ground the said application.
We await hearing from you.
Denis O'Sullivan & Co."
5 I should mention at this stage, that in my view that letter clearly gave reasons for the discovery sought, even though the word "reasons" is not to be found in the...
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