High Court of Ireland Decisions

 


HC 174/04

THE HIGH COURT

1999 No. 10647P

Between/

Victor Whitington

Plaintiff

- and -

The County Council of the County of Donegal

Defendants

Decision of the Master 30^th April 2004.

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.

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.

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 . . .

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

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

c) All prior accidents at the aforesaid location during the currency of the said road works.

d) All complaints received by the defendant pertaining to the said road works, presence of debris and gravel on the said road and warning system during the currency of the said road works.

e) The clearing of gravel and debris from the said road and the maintenance of same in a safe and orderly manner.

f) The provision of lighting in the vicinity of the said road works.

g) The safety provisions, statement and considerations pertaining to the said road works.

One turns to the grounding affidavit to see whether this inadequately pleaded basis for discovery has been supplemented with more cogent or specific reasons as to why the discovery sought is "necessary". It hasn't, apart from the formal averment that "the documentation requested is necessary for disposing fairly of the above issues and for saving in (sic) costs". So what are the "issues" referred to in this averment?

They are:

1. Whether the defendant carried out any repairs or other works on the road upon which the plaintiff was driving. (No limiting time frame is suggested - the request is open ended.)

2. Whether the defendant left debris and gravel on the roadway and had no system for containing or marking same, left it unsupervised and failed to periodically inspect it.

3. Whether the defendant failed to fence the said works, route traffic safely, light the roadway adequately or place warning signs nearby.

4. Whether the defendant allowed vehicular access to a dangerous roadway and in so doing disregarded the safety of motorists.

The plaintiff's solicitor does not advise us as to any particular difficulty he has in proving any of the foregoing, nor does he tell us if he has yet bothered to request a garda abstract which might contain all the evidence he needs, or whether he did and it doesn't. Or perhaps the investigating garda has died? He doesn't tell us whether the plaintiff or his passenger has any particular difficulty in recalling the events of the night. Presumably, however, the allegation about gravel is based on information supplied by either or both, or is referred to in the garda abstract. Otherwise, where did it come from?

In summary, the application is hopelessly short on specifics. The basis of the necessity for discovery is not outlined, and the necessity cannot be assessed by the court.

In an attempt to progress this long delayed action, I must bring common sense to bear on the request for discovery. The real difficulty facing the plaintiff (apart from his bald tyre) is proving that the gravel and debris (the presence of which I am assuming - in the absence of evidence to the contrary - he can prove) were deposited there by the defendants and possibly in the course of road works. The plaintiff has no way of proving this fact. But it is the only fact (amongst those material facts which he must prove to succeed in his claim) which he cannot prove with the evidence which I have no reason to believe is not currently available to him.

Discovery will be ordered as follows

"Documents containing specifications and works programme for road works on the specified roadway within the three month period prior to the plaintiffs accident, including contractual documents in respect of supply delivery and (temporary) storage of gravel in respect of such works."

Technically, the plaintiff's application complied with the rules of Court. There were reasons specified. They were not convincing. There was an averment of necessity. It was unsupported by factual evidence to enable the court to satisfy itself as to necessity and, on the fact of the pleadings, it was apparent that the plaintiff had evidence sourced elsewhere. I will reserve costs.