Whitington v Donegal County Council

• Jurisdiction: Ireland
• Judge: Master
• Judgment Date: 30 April 2004
• Neutral Citation: [2004] IEHC 75
• Docket Number: 1999 No. 10647P
• Court: High Court
• Date: 30 April 2004

[2004] IEHC 75

THE HIGH COURT

1999 No. 10647P

WHITINGTON v. DONEGAL CO COUNCIL

Between/

Victor Whitington

Plaintiff

- and -

The County Council of the County of Donegal

Defendants

Abstract:

Practice and procedure - Discovery - Necessity of documents - Facts in issue - Whether gravel left on roadway by defendant so as to pose risk to traffic - Whether documents probative of facts in issue - Whether request for voluntary discovery in accordance with Rules of Court.

Facts: the plaintiff, who had crashed on a road under the defendant’s control, alleged that the defendant had been negligent, inter alia, in causing a danger to traffic by placing and leaving gravel on a roadway. Seven categories of documentation were sought by the plaintiff, one of which related to whether any works had been carried out by the defendant on the road in question.

Held by the Master in ordering that the defendant discover material in respect of works on the stretch of road in question for the three months prior to the accident and reserving the costs of the motion that the difficulty faced by the plaintiff was proving that the presence of gravel on the roadway was deposited by the defendant and was the only fact which he could not prove with the evidence otherwise available to him. That, whilst there was an averment of necessity of the documents sought, the basis of that necessity was not outlined by the plaintiff.

Reporter: P.C.

Master

1 This young man is probably lucky to be alive. It's a story we read all too often in the newspapers: young man driving his girlfriend home late at night, driving an old car he had bought six months earlier worth no more than £1000 and with a bald front tyre. The date is April 1997. Goodness knows what speed he was travelling at, but at least there was no other vehicle involved. The car leaves the road and crashes against a fence. He suffers serious facial injury as a result of which he loses the sight of his right eye. He spends several days in intensive care before a three week hospitalisation in St. James, and now has to rule out his intended career as a welder.

2 Why? He alleges that the local authority defendant left gravel and debris on the highway, causing his car to skid out of control. The plaintiff's particulars confirm that the accident was "immediately reported" to the gardaí at Donegal. Presumably the gardaí investigated—the plaintiff's solicitor does not enlighten us on this point.

3 Instead, seeking evidence, the plaintiff solicitor requests discovery of the defendant's files. His letter seeking voluntary discovery is dispatched just short of six years after the date of the accident. Six categories of documentation are sought, the reason specified in each case being the corresponding particular of negligence as alleged, coupled with the general formula to the effect that the documents"have a direct bearing on the matters on (sic) issue and are wholly relevant and are proper matters for discovery". The seven categories sought are "documents … and complaints relating to …

4 a) The carrying out of road works on the main Donegal Town to Ballybofey Road at or near Clar in the County of Donegal.

5 b) The design, installation, operation and management and control of the warning system for motorists on the date...