Tobin v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 07 October 2016
• Neutral Citation: [2016] IEHC 547
• Docket Number: [2014 No. 691 P]
• Court: High Court
• Date: 07 October 2016

[2016] IEHC 547

THE HIGH COURT

McDermott J.

[2014 No. 691 P]

BETWEEN

GAVIN TOBIN

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Practice & Procedures – Discovery of documents – O. 31, r. 12 of the Rules of the Superior Courts – Damages for personal injuries sustained in the course of employment – Fair disposal of the case

Facts: The plaintiff sought discovery of certain documents in possession of the defendants under o.31, r.12 of the Rules of the Superior Courts. The plaintiff claimed that those documents were relevant and necessary for the plaintiff's main claim for personal damages sustained by the plaintiff in the employment with the defendants. The plaintiff claimed for discovery of documents on the basis of the allegations that the defendants did not provide a safe work place to the plaintiff. The plaintiff asserted that he was exposed to hazardous chemicals. The defendants contended that the plaintiff was put on full proof in relation to the duties and obligations alleged to be owned by the defendants and he was never exposed to hazardous chemicals.

Mr. Justice McDermott made an order for discovery of the documents but to a limited extent. The Court held that in case of an order of discovery of large number of documents, it should be taken into account whether the discovery was necessary for fair disposal of the case. The Court held that there must be proportionality between the extent of volume of the documents to be discovered and the degree to which the documents were likely to advance the plaintiff's case or damage the defendant's case. The Court held that it should be taken into account that the order for discovery must not be oppressive to the defendants. The Court held that the discovery of the list of all the chemicals together with the list of safety data information concerning the chemicals and exposure of the plaintiff to dangerous chemicals in the course of his work by his employer were relevant and necessary for the fair disposal of case. The Court held that the discovery of all standard operating procedures for use by personnel relating to ‘activities’ at the concerned workshop was too widely drawn and irrelevant.

JUDGMENT of Mr. Justice McDermott delivered on the 7th October, 2016

Mr. Justice McDermott

1 This is an application by the plaintiff for an order pursuant to O. 31, r. 12 of the Rules of the Superior Courts requiring the defendants to make discovery on oath of all documents in their power, procurement or possession which it is said are necessary and relevant to the plaintiff's claim for damages for personal injuries allegedly sustained during the course of his employment as a aircraft mechanic while serving in the Air Corps. A considerable body of documentation was sought under fifteen headings much of which have been agreed between the parties and may be the subject of a consent order. The categories of documents which are now no longer in issue are set out at paras.(iii), (iv), (v), (vi), (vii), (viii), (ix) and (xiv) of the schedule to the Notice of Motion subject to some variation in the wording of those paragraphs and the amalgamation of the documents the subject matter of paras. (v) and (vi).

2 The plaintiff was employed as an apprentice aircraft mechanic in September, 1989 in the Air Corps and commenced service at the apprentice school at Casement Aerodrome in Baldonnel in January, 1990. During his training and over the following years he was stationed at the Aerodrome until his service ceased in September, 1999.

3 The plaintiff claims that during the course of his employment as an aircraft mechanic at the Aerodrome he was exposed to various dangerous chemicals and organic solvents on an ongoing basis and as a result suffered personal injuries. He attributes this to the negligence, nuisance, breach of duty and statutory duty and breach of contract of the defendants and their failure to provide him with a safe system or place of work, safe and proper equipment and safe and competent fellow employees.

4 The particulars of negligence, nuisance, breach of duty and statutory duty and breach of contract are set out at para. 7 of the Indorsement of Claim. Following a series of general claims the particulars allege that the defendants:

‘(h) Failed to provide the plaintiff with any or any appropriate training in and about the work which he was required to carry out;

(i) Failed to carry out a risk assessment of the task involved;

(j) Failed to ensure that the place of work was insofar as was reasonably practical, safe and without risk to health;

(k) Failed to identify the hazard of the place of work under it's control, assess the risk presented by those hazards and be in possession of a written assessment, or in the alternative, having identified a hazard and assessed the risks, failed to take any or any adequate steps to alleviate the same;

(l) Failed to provide the plaintiff and/or his fellow Air Corps personnel with appropriate training with regards to the safe handling of chemicals and solvents and the dangers associated therewith;

(m) Failed to provide any or any appropriate supervision of the plaintiff and his fellow Air Corps personnel insofar as the handling of chemicals and solvents was concerned;

(n) Caused, allowed or permitted the plaintiff to be doused with chemicals by other Air Corps personnel while in the course of his duties;

(o) Failed to provide the plaintiff with any or any appropriate protective equipment to allow him to handle chemicals and solvents in a safe manner;

(p) Required the plaintiff to utilise ineffective and inappropriate gloves while exposed to chemicals and solvents;

(q) Failed to ensure that any or any appropriate ventilation was in place within the area where the plaintiff was required to work;

(r) Required the plaintiff to handle aircraft parts using his bare hands;

(s) Failed to ensure that the system of work which the plaintiff was required to operate was a safe one and did not result in the plaintiff being exposed on an ongoing basis to dangerous chemicals and solvents;

(t) Required the plaintiff to empty, clean and restock chemical storage vats when they knew or ought to have known that it was dangerous and unsafe for him to do so;

(u) Required the plaintiff to handle pump the chemicals from baths when they knew or ought to have known that it was dangerous and unsafe for the plaintiff to do so;

(v) Required the plaintiff to climb into chemical baths or tanks to remove sediment when they knew or ought to have known that it was dangerous and unsafe for him to do so;

(w) Failed to properly investigate the plaintiff's medical complaints having become aware of same;

(x) Caused, allowed or permitted the plaintiff to remain in an environment in the course of his work were he was exposed to dangerous chemicals and solvents not withstanding his having on-going medical complaints;

…’

5 The plaintiff also alleges breaches of the provisions of the Safety and Industry Act 1980, the Safety, Health and Welfare at Work Act 1989, the Safety, Health and Welfare at Work Act 2005 and the Safety, Health and Welfare at Work (General Application) Regulations 2007.

6 The plaintiff claims that in the initial stage of his apprenticeship he enjoyed very good health, was physically active and a keen cyclist and hill walker. He was assigned to the ‘engine shop’ in mid-1991 and experienced symptoms of fatigue. He developed high-levels of anxiety and an inability to concentrate. He continued to suffer from symptoms of anxiety and difficulty in concentration. In September, 1994 the plaintiff commenced studies in electronics at the Institute of Technology but was unable to complete the course because he was unable to concentrate. In June, 1995 he developed testicular pain following a particular work exercise which involved spray painting for an entire day without any personal protective equipment.

7 When he left the Air Corps service the plaintiff continued to suffer symptoms and attended Tallaght Hospital in 2003 because of persistent vomiting and diarrhoea. He suffered various other symptoms thereafter. In December, 2011 the plaintiff was advised, following an occupational history and background investigation by a Toxico- Pathologist that his various medical complaints and conditions were as a result of chronic exposure to high levels of organic solvents in his workplace during his employment with the Air Corps. It is stated:

‘The clinical picture provided by the plaintiff was typical of an organic Encephalopathy characterised by fatigue, poor concentration, sleep disturbance, anxiety and depression. It was concluded that a diagnosis of oligo-spermia which occurred in December 2007 might be associated with this exposure to solvents in the course of his employment. He was advised that future additional risks to his health were posed by this past exposure including the possible onset of Alzheimer's disease and a variety of cancers.’

8 A letter seeking further and better particulars of the plaintiff's claim issued on the 16th July, 2014. Paragraph 9 sought particulars of the claim that he was exposed to various dangerous chemicals and organic solvents on an ongoing basis in the course of his employment and in particular, sought:

‘(a) The precise dates upon which the plaintiff alleges that he was first exposed to chemicals and solvents;

(b) The date upon which the plaintiff alleges that he was last exposed to them;

(c) Confirmation of the purpose for which each such chemical or solvent to which he was exposed was allegedly used in the Defence Forces; and

(d) Identification of the proprietary and generic names of all and any chemicals and solvents to which he alleges he was exposed.’

9 The plaintiff was also asked at para. 7 the dates during which he was employed in the Defence Forces, whether he was employed as an aircraft mechanic for the...