Tobin v The Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr Justice Mark Heslin
• Judgment Date: 28 February 2023
• Neutral Citation: [2023] IEHC 91
• Court: High Court
• Docket Number: [Record No. 2014/691P]

Between

Gavin Tobin

Plaintiff

and

The Minister for Defence, Ireland and The Attorney General

Defendants

[2023] IEHC 91

[Record No. 2014/691P]

THE HIGH COURT

Personal injuries – Negligence – Discovery – Plaintiff seeking further and better discovery – Whether the defendants had complied in full with their discovery obligations

Facts: The plaintiff, Mr. Tobin, by means of a personal injuries summons issued on 21st January 2014, sought damages from the defendants, the Minister for Defence, Ireland and the Attorney General, for alleged negligence, nuisance, breach of duty, breach of statutory duty, and breach of contract. The case came before the High Court by way of a motion issued by the plaintiff on 15 December, 2021 seeking the following relief: an order pursuant to O. 31, r. 21 of the Rules of the Superior Courts striking out the defence of the defendants for failing to make discovery in accordance with a Supreme Court order dated 15th July, 2019; in the alternative, an order pursuant to O. 31 and/or the inherent jurisdiction of the court directing the defendants to make further and better discovery in accordance with the Supreme Court order dated 15th July, 2019. In para. 33 of his affidavit grounding the motion the plaintiff averred inter alia the following: “All I am seeking is to have a fair disposal of my proceedings. At the very least, I must know what chemicals I was exposed to. If the Air Corps procures the safety data sheets of the chemicals that were present at the time, then I will be able to meaningfully advance my proceedings”. The position adopted by the defendants (per Col. Moran’s affidavits) was that: (i) they had complied, in full, with their discovery obligations; (ii) the motion was entirely without merit; and (iii) the plaintiff was not entitled to either of the alternative reliefs sought.

Held by Heslin J that adequacy could only be determined with reference to the specific obligations created by the Supreme Court’s order and the failure even to make enquires from third parties allowed for a finding that inadequate searches had been made and the defendants’ discovery was inadequate. In circumstances where a fair trial remained possible, it seemed to Heslin J that the appropriate relief for the court to grant was the alternative relief which the plaintiff had sought. Heslin J held that this would require the defendants to comply, in full, with the Supreme Court’s order, by means of an order made by the court directing further and better discovery. Heslin J held that, in light of the Supreme Court’s judgment and order, the plaintiff was entitled to expect at least the following in any affidavit of discovery furnished by the defendants: (i) confirmation that all relevant searches had been conducted for both physical and electronic-stored documents; (ii) confirmation that the said searches had been conducted in respect of all locations within Casement Aerodrome Baldonnel, Co. Dublin; (iii) the identification of the person(s) who carried out these searches and the instructions given to them; (iv) details of precisely what those searches entailed; (v) confirmation that all potentially relevant third parties were identified and that adequate searches, via enquiries with all third parties who may hold duplicates of missing documents (e.g. copy sale/purchase records of chemicals and copy safety data sheets regarding each sale/purchase) were carried out; (vi) to the extent that (after all relevant searches had been properly conducted) documents were said to be missing, lost or unavailable, details of what documents were, but no longer are, in the defendants’ possession, when they ceased to be in the defendants’ possession, why they are no longer in the defendants’ possession, what became of same, and an account of the efforts made to locate the original/source a copy; (vii) details of all efforts to track down lost or missing documents via other means, in particular, from third parties; (viii) an affidavit or affidavits sworn by deponent or deponents who can ‘stand over’ the foregoing.

Heslin J held that there were no facts or circumstances which would justify a departure from the ‘normal rule’ (given statutory expression in s. 169(1) of the Legal Services Regulation Act 2015) that ‘costs’ should ‘follow the event’.

Relief granted.

JUDGMENT of Mr Justice Mark Heslin delivered on the 28th day of February 2023 .

Introduction

1 . The case comes before this Court by way of a motion issued by the Plaintiff on 15 ^th December, 2021 seeking the following relief:

• — An order pursuant to O.31, rule 21 of the Rules of the Superior Courts striking out the Defence of the Defendants for failing to make discovery in accordance with the Supreme Court Order dated 15 ^th July, 2019;

• — In the alternative, an Order pursuant to Order 31 and/or the inherent jurisdiction of the court directing the Defendants to make further and better discovery in accordance with the Supreme Court Order dated 15 July, 2019.

2 . At the outset I want to express my sincere thanks to Mr Counihan SC for the Plaintiff and to Ms Corcoran BL for the Defendants. Both made oral submissions with clarity and skill during the hearing, supplementing written submissions which I have carefully considered and which were of great assistance in dealing with the issues in the present application. The principal submissions and most relevant authorities will be referred to during the course of this judgment. For present purposes, however, it is appropriate to look at the nature of the underlying proceedings and to understand the history of the discovery process, to date, as well as the significance of same to the fair determination of the matters in dispute.

Personal Injuries Summons

3 . By means of a Personal Injuries Summons issued on 21 January 2014 (“the Summons”), the Plaintiff sought damages from the Defendants for alleged negligence, nuisance, breach of duty, breach of statutory duty, and breach of contract. In summary, the Plaintiff claims the following. He joined the Irish Army Air Corps as an apprentice aircraft mechanic in September 1989 and was trained at Casement Aerodrome Baldonnel, Co Dublin, where he was stationed until he left the service in September 1999. The Plaintiff claims that during the course of his employment as an aircraft mechanic at Casement Aerodrome, he was exposed to various dangerous chemicals and organic solvents on an ongoing basis, as a consequence of which he suffered severe personal injury loss damage inconvenience and expense. The Plaintiff pleads inter alia that when he commenced basic military training he was in very good health, was physically active and a keen cyclist and hillwalker. He pleads that following his posting to the “ engine shop” in mid-1991, he subsequently experienced symptoms of fatigue, developed high levels of anxiety and inability to concentrate, suffered from a lack of confidence and became unwell. Among the pleas made by the Plaintiff is that the Defendants failed to provide him with a safe place of work, a safe system of work, safe and proper equipment, appropriate training, and safe and competent co-workers. Paras. 7 (a) to (aa) comprise “Particulars of Negligence, Nuisance, Breach of Duty and Breach of Contract” and these include the following:

“(l) failed to provide the Plaintiff and/or his fellow Air Corp personnel with appropriate training with regard 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 Corp 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 Corp personnel while in the course of his duties;”

4 . Particulars of personal injury are pleaded at para 9 of the Plaintiff's Summons which include inter-alia the following:

“Following an examination of the Plaintiff and an investigation into his occupational history and background by a medically qualified Toxico-Pathologist in December 2011 the Plaintiff was advised that his various medical complaints and conditions referred to above came about as a result of his chronic exposure to high levels of organic solvents in his workplace during his employment in the Irish Army Air Corps. The clinical picture provided by the Plaintiff was typical of an organic encephalopathy characterised by fatigue, poor concentration, sleep disturbance anxiety and depression. Further the Plaintiff's exposure to solvents and his subsequent diagnosis of oligo-spermia may well be associated with his exposure to solvents in the course of his employment but the same remains under investigation. The Plaintiff has been advised that he faces future additional risks to his health posed by the past exposure to organic solvents including the possible early onset of Alzheimer's disease and a variety of cancers.”

Particulars

5 . A notice for particulars was raised by the Defendants on 11 March 2014 and replied to on 16 July 2014. The Plaintiff's replies to particulars include inter-alia information in respect to issues including (i) the Plaintiff's position or role in the Defence Forces; (ii) when he says he was exposed to dangerous chemicals; (iii) their uses insofar as he is aware; (iv) the chemicals he says he was exposed to; and (v) his pleas ( per Paras. 7 (l), (m) and (n) of the Summons) including that he was “ doused with chemicals”. The following headings are mine, whereas the text comprises verbatim quotes from the Plaintiff's Replies to Particulars:-

Roles

“Basic military training for the initial 4 months.

Airport apprentice School training from January 1990 until July 1991.

Aircraft mechanic training — July 1991 in Engine Repair Flight (“ERF”) for approximately 10 weeks before transferring to basic flight training school for...