THE HIGH COURT

BETWEEN
PATRICK KELLY

PLAINTIFF
AND

VAN DEN BERGH FOODS LIMITED AND UNILEVER (IRELAND) LIMITED

DEFENDANTS
	
DECISION OF THE MASTER OF THE HIGH COURT 16.1.2003

This is an application by the Plaintiff for discovery of documents concerning his accident on 22nd October 1997 when (it is alleged) "his right hand became trapped in an ice lolly wrapping machine to which he was carrying out adjustments".

Of course by now the circumstances of the accident have been reduced to writing and it is the Statement of Claim (and Particulars) to which the Court must turn to identify the facts which the Plaintiff hopes to be able to prove with direct or indirect help from the leads thrown up by discovery. It is the pleaded facts we are concerned with, rather than the client's original instructions. By that I mean that to draw attention to the nature of the litigation - it is not a general process of inquiry into the circumstances of the accident, rather it is an adjudication of the truth or falsity (on the balance of probability) of the facts alleged in the Statement
of Claim (and denied in the Defence), no more and no less.

There are several other factors which govern the decision on a discovery application, as follows:
(a) no general discovery will be ordered
(b) only material facts ought to have been alleged: if non-material (or "surplus") facts have been alleged, discovery will not be granted.

-2-

(c) In the case of any material fact in the nature of a non-specific allegation, e.g. "failing to provide a safe place of work", discovery in pursuit of evidence of such allegation is a "fishing expedition", and will not be ordered.
(d) Only documents which may yield evidence probative of a material fact will be discoverable. So-called "similar fact" evidence (ignoring for the moment the question of admissibility) is rarely probative of a material fact. The fact often suggested in this context is the state of knowledge of the Defendant: this is rarely material.
(e) Has the party seeking discovery other proof or proofs of the fact to which the documents are stated to relate? If so, discovery is not necessary.

Then there are procedural pre-requisites. Has the party seeking discovery previously requested voluntary discovery, and did his said request identify, for each category of documents sought, the fact or facts in respect of which these documents might be productive of probative evidence? In other words, has each category been cross referred to the factual allegation to which it relates?

Where the Rules refer to the "reasons" for discovery, they are referring to the above matters only. There is no point in specifying as "reasons" either the opinion of Counsel, or the fact that the other party has the documents sought, or that the documents might assist in proving an undisputed fact, or a fact not pleaded at all.

Difficulty often arises as to what is or is not a material fact. Materiality is a question of law. The essential ingredients of the (usual) cause of action in Negligence are:
(i)	the circumstances giving rise to the existence of a duty of care
(ii)	the behaviour of the Defendant alleged 
(a) to fall short of the reasonable care to which the Plaintiff is entitled either under Common Law or pursuant to Statute, and

-3-

(b) to have caused or contributed to the accident.

Both these criteria (a) and (b) have to be met. Careless conduct which did not cause the accident is interesting, perhaps, but not material.

(iii)	the injury or loss sustained by the Plaintiff.

The content of a Third Party report or guidelines, or standard procedures is never the yardstick by which the Court determines the measure of what constitutes "reasonable" care; that adjudication is by reference to the standard of the reasonable man.

By Notice of Motion dated 3rd July, 2002 the Plaintiff in this case seeks discovery of four categories of documents, as follows:

1. All documentation pertaining to the original purchase of the machine upon which the Plaintiff was working on the 22nd of October, 1997.

2. All documentation pertaining to the inspection and/or examination and/or servicing and/or maintenance of the said machine for a period of twelve months prior to the date of the accident and twelve months subsequent to the date of the accident.

3. All documents within the possession, power or procurement of the Defendants concerning the reporting of the accident the subject matter of the proceedings and in particular;

a.	The Internal Accident Report Book,
b.	The Accident Record Book
c.	All or any witness statements.
d.	The Report to the National Authority for Occupational Safety and Health.
e.	 All documentation pertaining to any examination and/or inspection of the machine subsequent to the accident and prior to the issue of the preliminary letter herein.

4. All documents within the possession, power or procurement of the Defendants concerning the preparation of the statutory Safety Statement to include the statutory Safety Statement, updates and revisions to same in force at the time of the accident and in particular the reference to the machine upon which the Plaintiff was working and any specific revision/update of the Safety Statement referable to the said machine for a period of six months subsequent to the date of the accident.

-4-

We are advised that the "reasons" are:

(a) and (b): that the age and condition; of the machine are in issue (because "refurbishment" is denied) and ... the documents will be evidence of the Defendant's state of knowledge as to the condition;

(c) and (d): to prove that the accident occurred as alleged and specifically, the task being carried out by the Plaintiff.

The Plaintiff appears to think that because it is denied (query: is it?) that refurbishment was taking place, it is necessary to demonstrate that the machine was old and needed refurbishment. In point of fact, the allegation that it was during refurbishment that the accident occurred is an allegation of a surplus (non material) fact. Whether or not refurbishment was occurring adds nothing to the Plaintiff's case. The Defendant cannot avoid liability by establishing that the machine was not being refurbished. The reason for the Plaintiff’s work on the machine is neither here nor there. (Incidentally, the particulars of contributory negligence refer to "replacing a misplaced part" and a "test run" - this clearly points to some sort of maintenance work).

Accordingly, I will order discovery only of Category 3.