THE HIGH COURT
2008 4402 P
BETWEEN
JOHN PATRICK REILLY
PLAINTIFF
AND
MALACHY CALABINE TRADING AS JAMAL DEVELOPMENTS LIMITED
DEFENDANT
DECISION of the MASTER of the HIGH COURT delivered on the 19th day of
October, 2011
In this action, the plaintiff is seeking damages. The defendant, his employer, is
apparently trading as a limited company.
The plaintiff alleges that on 18th July, 2006 (then aged 53), he sustained injuries
during the course of his employment as a carpenter by the defendant on a building site
near Ballina when a timber plank, sitting on scaffolding, along which he was walking,
“snapped” and he fell to the ground two metres below. He landed on his feet, but was
seriously injured, nevertheless.
The plaintiff spent ten days in hospital and a further seven weeks in a plaster
cast over his left heel which had sustained a squashed fracture with fragmenting. He
is left with a limitation of movement of the left heel and clear evidence of significant
osteoarthritis of the subtalar joint. Fusion is being considered.
The plaintiff alleges that his employer was negligent in nine specific respects,
together with “further and other acts of negligence (of) which he is not presently
aware”. These are:
(a) unsafe place of work;
(b) unsafe system of work;
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(c) dangerous and unsafe scaffolding;
(d) planks on the scaffold which were not “proper and adequate”;
(e) planks with an excessive span;
(f) gaps in the working platform which was not “fully planked out”;
(g) scaffolding with no handrails;
(h) scaffolding erected by untrained persons;
(i) no risk assessment.
Note that there is no allegation that the plank itself was substandard or defective
and damaged in any way.
A further ten particulars are listed, without description, namely, breaches of
Regulations 3, 6, 9, 15, 51, 52, 53, 55, 67, 68(5) of Statutory Instrument No. 481 of
2011.
In October 2010, furnishing particulars requested by the defendant, the
plaintiff’s solicitor named three witnesses to the accident, namely, the defendant (sic)
himself, Tommy Gallagher and Peter Ginty. The solicitor also observed that an
engineering inspection would be necessary “if liability is seriously in issue”.
And then, in March, 2011, we find the same solicitor swearing that “the locus of
the scene (sic) could not be inspected by the Plaintiff’s Forensic Engineers” and
seeking discovery of two categories of documents to enable said engineers to
“comment on the documents” and “to assist the Court in determining the issues”.
The Supreme Court guidelines on when to order discovery of documents are
now generally applied in all cases. Ryanair v. Aer Rianta [2003] 4 I.R. 264,
“genuinely necessary” and Taylor v. Clonmel Healthcare Ltd. “really needed” refer.
Practitioners who continue to seek discovery on the older, Peruvian Guano test
(documents which may, not which must, either directly or indirectly enable the party
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to advance his own case or to damage the case of his adversary) need to bear in mind
that only in the rarest of circumstances can the “real and genuine need” referred to by
the Supreme Court be stretched to include speculative searching for materials which
might open up some new, unpleaded, circumstance. If you have the evidence you
need to bring home the case as pleaded, it is pointless to seek, in effect, general
discovery in the hope of turning up something new, something extra.
In determining whether the applicant has enough evidence to prove his case, or
has an evidential “deficit” in this regard, the Court must therefore first check to see
what is the cause of action pleaded, and then prepare, from established law, a
checklist of the material facts which must be proved.
This action is a claim for damages. The cause of action is not specified in the
relief sought. Instead, we see, under the heading ‘Wrong Alleged’, the plaintiff is
alleging negligence and breach of duty. He is not seeking damages, then, for
example, for breach of contract, or for trespass or for fraud. Although it may be
thought absurd to mention these, it is done here to highlight that the cause of action
chosen determines which of the facts are material. Only the facts legally material to
the cause of action specified can be considered as suitable as a basis for discovery of
documents “really and genuinely” needed to present the claim.
Court cases are not inquiries into the general circumstances pertaining at the
material time. They are concerned solely with the proof of the specific facts alleged
by the plaintiff. (And when those facts are admitted, and therefore no longer “in
issue”, the Court will not need to hear evidence). Can a plaintiff demand a full
inquiry by pleading that he is relying on other, unspecified, acts of carelessness of
which he is presently unaware, and on the strength of such a claim seek general
discovery?
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While there is nothing to bar a plaintiff from pleading and relying on facts
which may emerge in due course, to seek discovery of documents in an effort to
identify same is clearly an exercise in pre-Statement of Claim discovery. As such, the
principles which the Courts operate to control potential abuses of process via
speculative, pre-Statement of Claim discovery, cannot be overlooked, even when, as
here, the non-specific allegation happens to be contained in the Statement of Claim
actually delivered - it is still the rule that you cannot seek discovery except for
specific allegations. In short, you cannot “fish”.
Although it is, of course, open to any Court to make as wide an order of
discovery of documents as it thinks fit, and act within its discretion in this regard, the
Rules of Court have always (in living memory) stipulated that discovery should only
be such as was necessary in the interests of justice. The 1999 rule change sought to
explore the parameters of such necessity by requiring applicants to act with restraint
and only when it could be stated by a lawyer on oath that the discovery sought was
needed. In recent years, the Supreme Court has started the process of constraining the
hitherto unlimited discretion by edging towards a rule-based model. The Court has
not gone any further than to impose the greater rigour on the adjudication which is
called for in order to determine whether the discovery sought is not just “necessary”
but “really and genuinely necessary”.
The following is a suggested methodology which could be employed in
weighing each application on the foregoing basis. It is a discretionary “checklist”.
1.
Review the Notice of Motion to check if what is sought is, indeed, a
category of documents and not “all documents relating to fact A”. This is,
strictly speaking, not a “category” at all, but a subset of general discovery
of “relevant” documents.
2.
Does the grounding affidavit depose that discovery is needed or does it
merely exhibit the letter seeking voluntary discovery without averment as
to the truth of the factual contents of the letter?
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3.
Is the affidavit by the solicitor? Only a lawyer, as an expert, can assess the
“need” asserted and the Court is relying on its officers in this regard.
4.
Does the affidavit set out separately for each category the fact which is the
focus of the request and the state of the applicant’s evidence with regard to
same (fact and inadequacy of probative evidence thereof, combined, are
referred to as the “reason” for the application)? [If the stated “reason”
(relevance to material fact in issue plus evidential “deficit”) is not good
enough, should the Court substitute an alternative, better reason (this is the
concept of “patent discoverability”) and sanction on costs?]
5.
Check the pleadings. Looking at each category in turn, is the fact
concerning which the particular category is sought a fact which is actually
pleaded, and is it denied and in issue?
6.
Even if so, is it a material fact (as a matter of law) to the cause of action
actually pleaded (and not as it might have been pleaded!) e.g. strict liability
tort: want of care is not material.
7.
Is the fact alleged so non-specific as to be altogether too general to be the
basis for discovery, following the decision in Framus?
8.
Is it a “surplus” fact which the Court will never need to adjudicate because
the case will have been won or lost on the central fact alleged e.g. the
failure to train a clearly negligent employee is a surplus fact.
9.
Do you know why you need discovery? (If you do not know why you need
discovery, you do not need it!) Is there an “evidential deficit”? Are there
factual witnesses available? Does it need an expert? Has the expert
already made up his mind (P.J. Carroll v. the Minister)?
10.
What evidence of the (material) fact in issue is already presumed to be
available to the applicant (a rebuttal presumption) (or in PI cases already
verified by the party’s verifying affidavit)? Without knowing this baseline,
how is the Court to determine what additional evidence may be “really” or
“genuinely” needed?
11.
Next to be assessed is the probative quality of the documentary material
sought: will the documents themselves prove the fact for which they are
requested, or will there have to be better viva voce evidence anyway from
witnesses available to the applicant? Perhaps the evidence is clearly
inadmissible?
12.
Would a subset of the category suffice? How much evidence of a
particular fact is “really and genuinely” needed?
13.
Is the material already in the public domain? Or otherwise available
without the need for a formal order? (e.g. if a defendant needs postaccident medical records, his medical witnesses can usually source these
directly from the plaintiff’s medicos: he does not need a formal order for
discovery).
14.
Does an applicant ever “really” or “genuinely” need corroborative evidence
if his own direct evidence can prove his case? It is logically impossible to
assert real or genuine need for material to prove a fact which is clearly
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provable without same. (A conundrum: if, somehow, he needs
corroborative evidence, how much does he really and genuinely need? Just
a little bit or full general discovery?)
15.
Broadly speaking, is the discovery requested proportionate to the
significance and criticality of the issues to which it pertains? And the cost
of discovery not disproportionately burdensome?
In his grounding affidavit of 7th March, 2011, the solicitor for the plaintiff avers
that discovery of the defendant’s risk assessment and safety statement documents is
necessary “and germane . . . to assist Forensic Engineers to be in a position to assist
the Court in determining the issues arising herein . . . in the light of the accident and
the nature thereof”. The only issue specifically identified by him is “the adequacy or
otherwise of the said documents . . . in the light of the defendant’s statutory
obligations” with regard to same.
Firstly, the case pleaded is that there was no risk assessment. Secondly, even if
it had been pleaded (or could be regarded as falling under the umbrella of other acts
“of negligence of which the plaintiff is presently unaware”), any deficiencies in the
defendant’s risk assessments and/or safety statement, though, in themselves perhaps
evidence of a want of care, are not probative of the actual infirmity in the scaffolding
and must be treated, for the purposes of assessing need for discovery, as surplus facts.
The applicant does not really or genuinely need discovery of these documents. His
case will stand or fall on whether he was required to travel an unnecessarily hazardous
route. And there are witnesses.
The second category sought is documents “touching on following the
investigation” (sic) by the Safety Authority. The deponent refers to “such
investigation as was carried out by the HSA” but seems unclear as to whether there
was such an investigation. The defendant’s documents “touching or (?) following”
such investigation are not said to be probative of anything other than the same facts as
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were, perhaps, investigated. There is nothing to suggest that the relevant HSA
officials are not available to be called as witnesses. These would give the “best
evidence” of what was recorded at the time. However, there is no suggestion that the
plaintiff or his witnesses are unable to prove the case even without these additional
witnesses.
Altogether, this is an entirely unconvincing basis for discovery in a case which
is surely (though not pleaded) res ipsa loquitur.
The application for discovery is therefore refused.
Edmund Honohan
19th October, 2011