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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Griffin v Irish Aviation Authority & anor [2020] IEHC 113 (26 February 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC113.html
Cite as: [2020] IEHC 113
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THE HIGH COURT
[2020] IEHC 113
[2018 No. 2618 P]
BETWEEN
BARRY GRIFFIN
PLAINTIFF
AND
THE IRISH AVIATION AUTHORITY AND PAT FALVEY
DEFENDANTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of February,
2020
1. The plaintiff’s complaint arises from a so-called “team-building exercise” by his employer,
the Irish Aviation Authority, which took place on 19th May, 2016 and involved climbing
Carrauntoohil mountain and a second mountain known as Cnoc na Tionne. The plaintiff’s
position is that the CEO at the time was a mountaineering enthusiast. The plaintiff
complains that the exercise was in effect compulsory and that minimal instructions or
information were given to him. There was no opportunity to opt out and no assessment
of his suitability. During the descent the plaintiff fell approximately 574 feet. He was
unable to control his fall, according to his pleadings, thus impacting repeatedly with rocks.
He complains that he suffered catastrophic injuries and is now tetraplegic, mobilises with
a wheelchair, is dependent on assistance, was unable to return to the family home and
suffers from ongoing pain and complications. His pleadings complain that it is predicted
that he will make no further neurological recovery and that his life expectancy has been
shortened by approximately ten to fourteen years.
2. The first named defendant says that the exercise was being organised and supervised by
the second named defendant Mr. Pat Falvey who is a mountaineer. Discovery was sought
against both defendants and fortunately the motion against the second named defendant
was agreed and a consent order made by Meenan J. on 26th February, 2020. The court is
also assisted by the fact that in the motion against the first named defendant, the parties
have agreed some of the categories of documents, although a number remain
outstanding with which I now deal.
3. I have received helpful submissions from Mr. Shane English B.L. (with Mr. Edward S.
Walsh S.C.) for the plaintiff and from Mr. William Reidy B.L. (with Mr. Liam Reidy S.C.) for
the first named defendant.
4. The precise wording of the categories was slightly narrowed by Mr. English during the
hearing in the sense that while reference is made to documents during the previous five
years, this was narrowed to documents during the period of team-building exercises
which are said to have begun in 2013. So reference to those categories hereafter will be
as so modified.
The general approach to discovery
5. While there is an enormous volume of case law on discovery, not all of which is entirely
consistent, definitive guidance has been given by Clarke C.J. in Tobin v. Minister for
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Defence [2019] IESC 57 (Unreported, Supreme Court, 15th July, 2019). The case law
identifies three major issues:
(i). relevance, as determined by reference to the pleadings (see para. 7.25 of Tobin) –
in that regard I should add that Compagnie Financière du Pacifique v. Peruvian
Guano Co. (1882) 11 QBD 55 remains the touchstone for relevance, as viewed
through the prism of the pleadings;
(ii). necessity, in respect of which the default position is that a document that is
relevant is also necessary (see para. 7.15); and
(iii). proportionality (see para. 7.17).
I now turn to the specific categories of documents in issue here.
Category 3
6. This category seeks communications between the first named defendant and employees
in relation to restrictions that applied on taking leave during the period of the team-
building exercises. The personal injuries summons alleges that the exercise was
compulsory. Mr. Reidy’s response is essentially that the specific element of compulsion
relied on here, namely that the plaintiff was not entitled to take leave during the so-called
team-building exercise, is not specifically pleaded, but that is detail. The broad point is
made on the plaintiff’s pleadings that the exercise was compulsory. The fact that the
various ways in which that was said to have been enforced or applied is merely a matter
of particularisation and evidence. Thus, communications restricting the taking of leave
are clearly relevant to an issue, and presumptively necessary to the prosecution of the
action. The category sought is not disproportionate and should be allowed.
Category 4
7. Here the plaintiff seeks the names and positons of all persons notified of the exercise.
Even assuming for the sake of argument that this is relevant, a request for people’s
names and addresses as opposed to pre-existing documentation is a matter for
particulars rather than discovery. Mr. English is now saying that what he really wants
under this heading is details of any special accommodation for other participants with
their particular requirements. It seems to me that is something beyond what was sought
in the request for discovery and the request as phrased is not one that can be granted as
it currently stands.
Category 5
8. This seeks the names and positions of all the actual participants in the particular exercise
in question and again that runs into a similar problem. Mr. English is now saying that in
effect he wants documents evidencing whether anyone who was invited to the exercise
was allowed not to attend and, if so, why. It seems to me that is really a different and
more specific request than what has been sought here. The request as phrased is not
one that it is appropriate to grant.
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Category 13
9. This seeks any documents related to the examination or evaluation of the suitability of
the equipment suggested or used, but not limited to the actual footwear worn by the
plaintiff. Mr. Reidy’s complaint is that this is already covered by Category 11, and that
may very well be so; but if so, there is nothing particularly to add under this heading. If,
on the other hand, there is something covered by this heading that is not included in
Category 11, it would be relevant, necessary and not disproportionate. Therefore,
Category 13 should be allowed with the rider that this only covers matters, if any, not
already covered by Category 11. If there are no such matters, then no discovery will be
required.
Category 14
10. The objection to discovery as sought under this heading was not in the end pursued, so
that should also be granted.
Category 16
11. The first named defendant is agreeable to provide an accident report form, but not the
statements made by individuals in relation to that. Mr. Reidy says the statements are, or
may be, privileged, and that remains to be seen, but clearly statements given by persons
who witnessed the incident or anything relevant in connection with it are hugely relevant
and necessary. The category is specific and not disproportionate.
Category 19
12. This category seeks any feedback provided in relation to “away days” since 2013. The
plaintiff’s complaint here is that feedback was not sought. The first named defendant
puts the plaintiff on proof of this. It seems to me that any and all feedback would by
definition include a great deal of irrelevant material, so a more limited order is
appropriate, namely safety-related feedback received since 2013.
Category 20
13. This seeks all documentation in relation to subsequent “away days”. This seems of limited
relevance and is also phrased in an open-ended way.
Category 21
14. Under this heading the plaintiff seeks his personnel file. Mr. Reidy complains that it has
not been explained why that is relevant to the actual issues. To a large extent that is a
fair point, but at the same time one wonders whether it is really necessary to make an
issue of that. The plaintiff will presumably be entitled to his personnel file anyway on
making a request under the Data Protection Acts 1988 to 2018, and indeed, as the first
named defendant is a public body, the plaintiff can also seek it under the Freedom of
Information Act 2014. If the plaintiff is going to be getting his personnel file anyway, why
object to it when a request for discovery is launched? Such a situation to my mind is one
of the weaknesses of the approach of saying that the party can get information through
interrogatories, other motions, alternative enquiries and so forth. Theoretically perhaps
that may be the case, but it often saves costs and is more convenient to deal with
everything in one go; a consideration that is, of course, doubly pressing where a party is
suffering from medical difficulty such as here.
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15. That is one of the difficulties with an approach that sets the parties off on wild goose
[2013] 1 I.R. 417 in particular. That was a case that dealt with particulars rather
than discovery, but at paras. 28 and 29, Hogan J. refused to direct particulars as to the
time of the incident alleged by the plaintiff, stating that “it is again in reality a form of
interrogatory”. Even if this premise was correct, which it isn’t, it is hard to see what is
achieved in practical terms by setting a defendant off on such an alternative route. But
more fundamentally, such a request is nothing like an interrogatory and indeed it is hard
to imagine what an interrogatory could conceivably look like if the defendant doesn’t
know the plaintiff’s case as to the time of the alleged incident and is trying to find out.
16. Hogan J. also relied on the fact that the plaintiff against whom particulars were sought
had not raised any issue as to time in the pleadings, other than that it was implicit in the
statement of claim that the incident happened during normal hours. Hogan J. inferred
from that that “the actual time of the incident is, therefore, irrelevant to this claim”.
That, with the utmost respect, does not follow at all. Merely because one party has not
specified a particular detail does not make it irrelevant to the claim having due regard to
the points that might be made by the other party. Most obviously, if the defendant
doesn’t accept that the incident happened at all or as alleged, it will be essential to the
doing of justice to enable that party to pin a plaintiff down on precisely when and how the
alleged cause for complaint arose. Just because the plaintiff doesn’t see fit to specify a
time doesn’t make that issue “irrelevant”. The notion, also advanced by Hogan J., that a
notice for particulars can’t demand details of special damages merely because the plaintiff
says that details will be provided when they are to hand (para. 45), or that details of
treatment are irrelevant because the plaintiff is claiming injury from the consequences of
the incident not the subsequent treatment (para. 41), are, with respect, also clearly
erroneous for a similar reason. They focus unduly on one party’s position and in effect
allow it to dictate what is relevant, necessary or both, without due or indeed any real
regard to points that can legitimately be made by the other party.
17. While Hogan J.’s judgment concludes with homely, paternal advices to the personal injury
bar to be more discriminating in requests for particulars (para. 49), the other side of the
coin is that a certain interrogation of a case in advance can clarify issues and lay the
ground for settlement where appropriate. It can also save costs. For example,
postponing to the trial of the action a clarification as to when the plaintiff says the
incident happened, or other important details, as in Armstrong, is not a practical
approach. The time of an incident is going to come out anyway, and is a perfectly
reasonable thing to seek by way of particulars. Analogous points apply in the present
case in relation to a plaintiff’s personnel file. Given that an issue is being made of it, I am
going to limit the order to such documents in the personnel file as are relevant to the first
named defendant’s claims of contributory negligence and the plaintiff’s pre-existing
condition. It is true as Mr. Reidy says that the plaintiff knows his own medical condition,
but the knowledge of the first named defendant is potentially relevant to the proceedings.
However, I would encourage the parties to agree on something wider to obviate the need
for the plaintiff to have to proceed with applications by way of data protection and FOI.
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Category 22
18. This seeks documents showing enquiries made by the first named defendant into the
qualifications and expertise of the second named defendant. This seems unnecessary
because the most relevant part of it is covered by Category 23 which relates to all
communications between the two defendants in relation to the incident in question.
Category 24
19. This relates to communications in relation to the choice of mountain for the incident
concerned and other away days. Insofar as 2016 is concerned, this is covered by
Category 23 and insofar as later years are concerned, it does not seem to be relevant.
Category 26
20. This seeks communications between the first named defendant and the Health and Safety
Authority in relation to the incident concerned. That is a perfectly reasonable request and
potentially relevant. It is certainly not unduly burdensome and I would allow that
category.
Order
21. Accordingly, the order will be that, subject to directions as to timescale and deponent, the
first-named defendant is to make discovery of:
(i). the agreed categories of documents, which are numbers 1, 2, 6 to 12, 15, 17, 18
and 23; and
(ii). the categories I have referred to above namely 3, 13 as amended, 14, 16, 19 as
amended, 21 as amended and 26.