High Court of Ireland Decisions

Neutral citation no. 2005 IEHC 181

THE HIGH COURT

[2001 No: 3002P]

BETWEEN

TERESA BURKE KELLY

PLAINTIFF

-and-

LEVER FABERGE IRELAND LIMITED

AND LEVER BROTHERS LIMITED

DEFENDANTS

DECISION OF THE MASTER OF THE HIGH COURT 12^TH MAY 2005.

There are facts and there are material facts.

Statements of claim will often include allegations of facts which are not material. Yet there they are. What is a defendant to do? Caution suggests he should deny all facts alleged rather than seek to distinguish the material from the non material. Once a fact is denied, of course, the fact is "in issue". And, again of course, difficulties in proving the allegation will prompt an application for discovery of "relevant" documents. The issue concerning the non material fact now enjoys a status equivalent to issues regarding material facts.

Yet when it comes to assessing the necessity for discovery the question cannot be avoided: is the fact proof of which is the object of the discovery application material or not. If it is not, it is surplus to the case – it is a non-issue – and discovery will not be "necessary" for the litigation to be conducted fairly to conclusion and judgment.

But the sorting of facts into those which must be proved, at one end of the spectrum, and those which have no bearing on the issues which ultimately determine the outcome, is not simply limited to identifying and discarding non-material facts. Even in a long list of allegations of fact under the heading "Particulars of Negligence . . .etc", - all of which are of course material in an action for damages for negligence – one will frequently spot an individual allegation of a fact which, even if true, could never be characterised as a fact having any sort of causal connection with the damage alleged. It may be carelessness, but it is not carelessness which could, by any stretch of the imagination, have been the cause of the accident.

Or it may be carelessness with a causal connection but which is clearly secondary in rank and will never have to be adjudicated because the primary carelessness to which it is inextricably linked either (a) may be established by the evidence and win the case on its own, or (b) cannot be proved and must be rejected along with its secondary or subsidiary allegation. The latter, in other words, may be true, but cannot sustain the case alone in the absence of probative evidence of the former.

Consider for example the case of a co-worker whose carelessness is alleged to have caused injury to the plaintiff. If he was negligent, he was negligent, and as to whether or not he had been adequately trained, the Court will not need to adjudicate. If, on the other hand, he was not negligent, then no amount of evidence of the inadequate training he was given by his employer will elevate the subsidiary allegation into a primary cause of the accident.

Or consider the State agency which is accused of breaching a citizen's Constitutional rights. The secondary allegation that funding was inadequate is beside the point. If the rights were breached that is the end of the case: the Court will not embark on an inquiry as to why the rights were breached, for example, for want of funds. If the rights were not breached then as regards the secondary issue of funding: cadit quaestio.

Or if an employee alleges that bullying and harassment continued in his workplace even after he complained about it, then that's his case, surely? He does not need to prove how his employer responded to the complaint in order to prove that the response was inadequate. The inadequacy is self evident from the fact that the bullying and harassment continued unabated.

This case is not quite on all fours with any of the above examples but then, neither is it sui generis. It is another example of a discovery application in relation to the proof of facts which though alleged, denied and in issue, will never ultimately be inquired into or adjudicated. That being so, discovery of relevant documents can never be considered to be necessary in the interests of fairness.

In this case the plaintiff used a product manufactured and sold by the defendants – a particular detergent – and alleges that subsequent use of towels washed with it caused her injury including patchy hair loss, an intensely itchy rash and severe tiredness. She alleges that patch testing with the detergent produced a severe irritant reaction, and the diagnosis is irritant dermatitis. Her claim is that the defendants were negligent and in breach of Statutory duty – the statute in question being the Liability for Defective Products Act, 1991 which imposes strict Liability for defective products.

The particulars of Common Law negligence (five in all) include failing to warn, to clearly state . . . or to recommend . . . . "Failing to carry out tests so as to prevent" appears to be a clearly secondary or subsidiary allegation in the sense above described.

The reasons specified by the plaintiff in this discovery application, insofar as they identify facts for the proof of which discovery of documents is being sought, include proving the defendants' involvement in promotion and sale of the product in Ireland (which is not denied); the defendants' knowledge of harm likely to be caused; to establish the defect in the product, and the causal link with the injury; and that the displayed warnings were inadequate and incomplete.

The defect and the causal link are the only facts in play here. Clearly, the plaintiff can prove her injury. If she can also prove the defect and the casual link she meets all the conditions to succeed in her claim under the Act. See section 4:

"The onus shall be on the injured person concerned to prove the damage, the defect and the causal relationship between the defect and damage."

But if, on the other hand, she is unable to prove any one or more of the three material facts specified in that section as together entitling her to damages, her claim in Common Law will also fail. She cannot succeed in a claim for damages for breach of the Common Law duty of care without proving each of the three material facts aforesaid and, in addition, other material facts such as want of care on the part of the defendants of the sort particularised, or of other sorts. Accordingly, the Court need go no further than examining the need for discovery in regard to defect and causation in respect of which facts four categories (c), (d), (e) and (f) are sought as follows:-

(c) Documents in relation to the results of tests carried out by or on behalf of the Defendants to determine or estimate the effect of contact with skin of the product marketed as "Persil Performance Tablets" up to the 5^th day of March 1999;

(d) Documents in relation to the results of tests carried out by, or on behalf of, the Defendants to determine or estimate the effect of contact with skin of fabrics washed using the product marketed as "Persil Performance Tablets" up to the 5^th day of March 1999;

(e) Documents in relation to discussions in relation to the adverse effects, or possible adverse effects, of contact with skin of the product marketed as "Persil Performance tablets". or the likelihood of such effects, up to the 5^th day of March 1999;

(f) Documents in relation to discussions in relation to the adverse effects, or possible adverse effects, of contact with skin of fabrics washed using . the product marketed as "Persil Performance Tablets", or the likelihood of such effects, up to the 5^th day of March 1999"

Why is the plaintiff looking for the result of the defendant's tests? Why can't the plaintiff conduct her own tests? There is nothing in the affidavit grounding this application to say that she cannot. Documents "in relation to discussions in relation to adverse effects" might be discoverable if the plaintiff could not otherwise obtain evidence of the adverse effects. The Court is nowhere informed that she has any problems in this regard.

In point of fact, the plaintiff's solicitor has chosen not to inform the Court of a highly relevant factor which has been the subject of correspondence between the solicitors. It is the defendant's solicitors who, in a replying affidavit, bring this correspondence to the attention of the Court. It includes references to testing of the product by the Chief Medical Scientist of University College Galway with results which "consolidated the opinion of the Consultant Dermatologist". The defendant's solicitors also advises that "the plaintiff's experts had all the scientific material they requested made available to them at the material time".

Need I say more? Discovery of the documents sought is clearly unnecessary. This application is refused with costs.

12^th May, 2005

Edmund Honohan