Court of Appeal: Minister for defence successfully appeals order for discovery of documents regarding chemicals in Aer Corps

About this case:

• Judge:
  Mr Justice Gerard Hogan

Varying the order of the High Court to limit the scope of discovery, Mr Justice Gerard Hogan said that the case illustrated the crisis of burdensome discovery in the legal system.

Background

Gavin Tobin worked as an aircraft mechanic serving with the Aer Corps at Casement Aerodrome, Baldonnel in the early 1990’s.

In his claim for personal injury, Mr Tobin alleges:

(a) that in the course of his employment as an aircraft mechanic at Baldonnel, he was exposed, through the handling of equipment and inhalation, to toxic chemical fumes; and

(b) that he was on occasion subjected to what appears to have been a sort of initiation rite by means of a practice known as “tubbing”. This involved his entire body being doused with chemicals by other Aer Corps personnel while he was tied to a stretcher.

Delivering the judgment of the Court of Appeal, Justice Hogan explained that Mr Tobin complained of acute anxiety, depression, a general feeling of unwellness and random incidents of severe pain; and that this affected his capacity for work (notably not rendering him unfit for work).

Mr Tobin claims that the Minister for Defence was guilty of negligence:

• in the manner in which he was provided with a system of work in that he was required to work in a hazardous environment;
• that he not provided with appropriate training or equipment;
• that the Minister failed to identify that the chemicals with which he was working were hazardous and that he was provided with ineffective gloves and poor ventilation.

Mr Tobin sought fifteen categories of discovery. The Minister for Defence offered to make discovery of nine categories, six of which were in precisely the same wording as was sought.

The Minister objected to discovery in the terms sought, stating that it was burdensome. Since some of the documents dated back some 28 years, Justice Hogan explained that the burden was likely to be very considerable.

High Court

In the High Court, Justice McDermott made orders providing for what amounts to extensive discovery in favour of Mr Tobin.

Justice McDermott disagreed with the Minister’s analysis of the case and which was based on an analysis of Mr Tobin’s pleadings that the only location at which he claimed he was exposed to toxic fumes was the ERF.

Justice McDermott also ruled that the nature of the claim “necessarily requires that this burden of discovery be imposed upon the defendants.”

Court of Appeal

Justice Hogan said that the present appeal served “to illustrate the crisis …now facing the courts regarding the extent of burdens, costs and delays imposed on litigants and the wider legal system by the discovery process as it presently operates”. 

Justice Hogan accepted that State defendants were “probably in a better position than many other defendants to secure the resources necessary to attend to this particular discovery request”, but said that this could not “in any sense take from the nature of the demands with which compliance with this request would impose”. Justice Hogan added that “these are burdens which fall to be discharged by the taxpayers and just because this is a very large and diffuse body, their interests in ensuring an efficient system of litigation cannot nevertheless be overlooked”.

Stating that the case was “another example of where present day discovery practice and procedure has gone seriously amiss”, Justice Hogan said that the “extent of the contemporary burden of discovery is itself illustrated by the present case, where in what is little more than a routine personal injuries case of moderate difficulty, the Minister was ordered to make discovery of documents in relation to sales purchases and other documents going back to 1990. Such is the extent of the crisis facing our legal system by reason of the burdens imposed by discovery requests, that it now behoves the judiciary to re-calibrate and adjust that practice by insisting that in cases where the discovery sought is likely to be extensive, no such order should be made unless all other avenues are exhausted and these have been shown to be inadequate”.

Justice Hogan said that it was appropriate to order discovery for category 1 (The Safety Data Registrar maintained by the Defendants in respect of Casement Aerodrome from the period between 1st January 1990 and 1st September 1999) and category 12 (Environmental impact records, EPA Inspection records etc). Varying the order made by the High Court, Justice Hogan said that category 12 should be confined to both issues of chemical safety and the ERF in the manner which the Minister urged.

In regards to the following categories:

2: All documentation, notes, records, reports, etc. listing or identifying any chemicals which were utilised by the plaintiff in the course of his duties during the said period together with any documentation identifying the quantities and dates of purchase of such materials.

5: Documents pertaining to general safety training and special safety training in chemicals

6: Documents pertaining to the provision of information with regard to the dangerous properties of the chemicals utilised by the plaintiff in the course of his employment

10: Any accident, incident or injury records pertaining to chemical exposure for the relevant period to include reports of any such accidents or injuries to the Health & Safety Authority

11: All records, reports, incident reports, etc., pertaining to spillages of chemicals to include any documentation relating to the procedure to be adopted on spillages at the reason therefore.

14: All standard operating procedures for use by personnel relating to the activities which they are required to carry out in the course of their duties during the relevant period.

Justice Hogan said that ordering discovery for categories 2, 5, 6, 10, 11 and 14 was premature, and to that extent he said he would allow the appeal.

Varying the order of the High Court, Justice Hogan said that Mr Tobin should first seek this information “by means of interrogatories” or “a notice to admit facts”. Emphasising the need for a co-operative approach by both parties, Justice Hogan said that if Mr Tobin did not receive what was necessary or essential through these means, that  it was open to him to renew the present application for discovery in the High Court.

• by Seosamh Gráinséir for Irish Legal News

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