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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rafferty v. Lamp Post Construction Co. Ltd. [2003] IEHC 37 (29 April 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/37.html Cite as: [2003] IEHC 37 |
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No 12481P 2000
BETWEEN
PLAINTIFF
DEFENDANT
DECISION OF THE MASTER OF THE HIGH COURT 29th April 2003
The plaintiff's letter of 28th August 2002, seeking discovery of five categories of documents in relation to an accident alleged to have occurred in December 1998, is lacking in specifics.
Five categories are sought. Three have an individual reason (the same reason for each) assigned to them. An afterthought reason, specified as referable to all five categories, is that the documents are "relevant to the issues ... having regard to paragraphs 1 to 5 of the Defence delivered." No application for discovery can proceed on the basis of such a general indicator of relevance. The Rule (as interpreted in the Swords decision) is to the effect that the Court has no jurisdiction.
Nor does the Court have jurisdiction to make the order for general discovery sought by the plaintiff.
That leaves the three categories of documents in respect of which a reason has been offered. These are (and I summarise)
(i) Not the Safety Statement itself (curiously), but all preparatory papers together with documents relating to publication and dissemination;
(ii) Not the Risk assessments themselves but all ancillary or linked documents for 1998, and
(iii) Records of safety training with particular regard to lifting sheets of metal.
The reason offered for all three is "to consider and assess the Defendant's compliance with the provisions of the Safety, Health and Welfare of Work (General Application) Regulations 1993." It seems likely that the plaintiff intended to specify the same reason for the other two categories, given the subject matter thereof viz.
(iv) All records of accidents of a similar nature for five years, and
(v) All documents (? general discovery again) including all documents required to be maintained by the defendant under the Safety in Industry Acts.
This, then is a request for discovery in respect of an allegation of breach of Statutory Duty only, and not the more general, Common Law, negligence claim. The plaintiff may very well have a case in negligence. He, and three others, were carrying a metal sheet from its place in the factory. The plaintiff was walking backwards. He tripped over a piece of metal or other obstruction which he (and his co-workers) had overlooked. One of the four was the factory foreman, but the plaintiff thinks he may not have reported the accident. The plaintiff's injuries were such that a fortnight after the accident (the date of which he can't be sure of) his physiotherapist recommended that he pay a visit to his doctor to obtain an assessment of his back pain. In all, he was six weeks off work, his ability to pursue his golfing hobby is limited, and he may be prone to occasional back pain in the future. It is also possible that the Court might find that he was contributorily negligent as alleged by the Defendant. It is possible that he may face an application to bear the costs of proceeding with a Circuit Court action in the higher cost environment of the High
Court. It is possible the Court may find that the defendant had exercised reasonable care, and must be paid its costs by the plaintiff.
It should perhaps be pointed out at this stage that the case, as framed, does not concern any allegation of negligence in or about the carrying of the metal sheet, per se. As pleaded, the case is about an obstruction on the factory floor. Category (iii) above appears therefor not to relate to any pleaded issue.
The stated basis of the application for discovery is the alleged non compliance with statutory duties. The plaintiff is of course limited to those duties alleged, in the particulars, to have been breached. Further limitations apply, namely, that discovery can be considered only in respect of those breaches which are material (or causal) and which cannot be proved by the plaintiff otherwise than by means of discovery: The Court will not embark upon a general inquiry into compliance with statutory obligations - it is concerned only with the causes of the accident.
The Factories Act 1955 was intended, it appears, to do two things. Firstly to reduce to clear enforceable terms standards for an employer's management of his "factory" so that enforcement by prosecution at the suit of the Minister might be available. Secondly (and this by inference only) to state for the record what was to be regarded thereafter as accepted practice, deviation from which norm might be actionable at the suit of an injured party as an instance of failure to exercise reasonable care. In the latter context the same want of care by an employer might be pleaded either as an instance of failure to exercise reasonable care or as a breach of statutory duty. Consequently, for ease of reference, statutory provisions when cited can be regarded as not uniquely referable to a distinct "breach of statutory duty" case
but as a short form reference to a particular duty or duties enforceable in Common Law at the suit of an injured party, even when the statute itself did not and does not create such a remedy.
The Safety in Industry Acts have the merit of precision and clarity in their exhaustive particularisation of the standard of care. It is therefore all the more irritating to find statutory provisions listed apparently at random in a catch all attempt to procure fishing expedition discovery.
The simple unadorned plea of breach of a particular section of the Act (or Regulations made thereunder) is not specific enough to ground an application for discovery. One must plead the allegation of fact constituting the breach of such provisions.
The plaintiff s breach of statutory duty claim is pleaded as "being in breach of sections 6, 8, 10, 11, 12, 13, 17, 21 and 28 of the (1993) Regulations." To the untrained eye this formulation may have the appearance of detail and particularity. Practitioners will however recognise it for what it is: a "cluster" plea. One or two on-target duties may be contained within its broad scope, but most are wide of the mark in the context of the alleged circumstances of the accident. To allege, for example, that the defendant failed to designate a particular employee to attend to accident prevention (Reg 8) is clearly to allege a "surplus" fact the truth of which will not feature either here or there in the causal chain however the plaintiff s claim may be formulated.
The other Regulations cited include the duty of an employer to co-operate with another employer onsite (Reg 6), the provision to employees of information as to risk (Reg 11), consultation with employees before changes are implemented (Reg 12), and the provision of personal protective equipment (Reg 21).
No explanation is offered as to how these provisions may be linked to the cause of action.
In one case (Reg 17) the obligation is to ensure that the place of work satisfies the specifics listed in the 2nd, 3rd and 4th schedule. In all, those schedules contain 93 separate requirements! In short, citation of the provisions of Statute is not being employed to benefit from the precision of the statutory material. It is being used to complicate a perfectly straightforward case.
In drafting the request for voluntary discovery, the plaintiff's solicitor has not even attempted to penetrate the broad brush plea and weakly requests documents "to consider and assess the Defendants' compliance with the 1993 Regulations." How can the defendant be expected to determine whether he should accede to this general request? He cannot.
In any event, these allegations, even where they appear to enjoy some prima facie connection with the pleaded circumstances of the accident, will never attain the status of materiality. If the plaintiff cannot bring home his case in Common Law, for whatever reason, no proven technical breach of the Regulations will assist him to succeed. This is not a matter of opinion. It is a matter of logic.
Anyhow, the plaintiff has no need of discovery (even if the Court could be persuaded that the alleged breaches were material, which I doubt). He has three good witnesses and himself to give evidence that he tripped over an obstruction on the floor.
I refuse the application.
