Taylor v Clonmel Healthcare Ltd
 IESC 13
THE SUPREME COURT
RSC O.31 r12
RSC (NO 2) (DISCOVERY) 1999 SI 233/1999
RSC O.31 12(4)
SWORDS V WESTERN PROTEINS LTD
RYAN AIR PLC V AER RIANTA CPT UNREP FENNELLY 2.12.2003
COMPAGNIE FINANCIERE DU PACIFIQUE V PERUVIAN GUANO CO
ALLIED IRISH BANK PLC V ERNST & WHINNEY
BROOKS THOMAS LTD V IMPAC LTD
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
COURTS & COURT OFFICERS ACT 1926
BURKE V DPP 2001/2/518
PRACTICE AND PROCEDURE
Appeal - Whether sufficient precision in categories of documents sought - Whether Master no jurisdiction to make order because of non-compliance with rules - Rules of the Superior Courts, O. 31, r.12 (298/2003 - Supreme Court - 23/3/2004)
Taylor v Clonmel Healthcare Ltd - -
Facts: The plaintiff appealed against the order of the High Court refusing his application for an order for discovery of documents. The plaintiff’s action was for personal injuries arising out of alleged exposure to noxious substances in the course of his employment. The plaintiff sought documentation relating to inter alia the system of work. His application was refused both on a finding that there was insufficient precision in the categories of documents sought and that the Master had no jurisdiction to order discovery because of non-compliance with the rules.
Held by the Supreme Court (Hardiman, Geoghegan and Fennelly JJ) in allowing the appeal and ordering the discovery sought that the categories of documents sought were stated with sufficient precision to comply with the rule. The Master had full power to waive any technical breach in the rules if the object of the rule has in reality been achieved.
Reporter: R. W.
This is an appeal from an order of the High Court (Roderick Murphy J.) dismissing an appeal from an order of the Master of the High Court refusing an application by the above-named plaintiff/appellant for an order for discovery of documents.
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 paragraph 4 of the statement of claim which reads as follows:
"4. The plaintiff was employed with the defendants from in or around the month of March 1989 until in or around the month of February, 2000 in the defendants' 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 suggest 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 and 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.
A defence was delivered on the 21st of October, 2002, the relevant part of which for the purposes of this application is contained in paragraph 1 which reads as follows:
"1. 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 appellant wrote a letter to the solicitors for the respondent dated the 7th of November, 2002 seeking voluntary discovery in accordance with O. 31, r. 12 of the Rules of the Superior Courts as amended since the 3rd of 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 7thof November, 2002 reads as follows:
We acknowledge receipt of your defence and note that your clients deny that the defendant 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 clients deny that they were 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 defendants agree to make Voluntary Discovery on Oath of all documents which are or have been in their 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 defendants 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 and
(b) the discovery which the defendants are 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 defendants agree to make the said discovery within the time required namely, 42 days from the date of this letter and fail to make such discovery within the said time, the plaintiff may make application pursuant to the Rules of the Superior Courts in respect of the defendants' 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 defendants confirm their 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 defendants do make the said discovery and for the costs of, and incidental to, the said application; and this letter, and the defendants” failure to advise us, as required, that they agree to make the said discovery required shall be relied upon to ground the said application.
We await hearing from you.
Denis O'Sullivan & Co.
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 letter. Given that the letter commences with a clear exposition of what are the issues in the case, it is self-evident why the appellant wanted the categories of documents listed and it is equally self-evident that within those categories she was only looking for documents material to the issues as set out. It can, of course, be argued that on its face at least the fifth category sought is much too wide and contravenes the 1999 amendments. I will, however, return to that issue later in the judgment. In making that comment, I am not overlooking the fact that the respondent is similarly criticising the other four categories sought.
The solicitors for the...
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