The High Court has ordered Cosgrave Developments (Dublin) Limited to make discovery of documents sought by the employer of a worker who alleges he was injured in a fall from scaffolding at a construction site in Dún Laoghaire in July 2016.
Mr Justice Richard Humphreys made the order on 18 May 2020 in a motion brought by the third-named defendant, John Kilbaine, against the first-named defendant, Cosgrave Developments. The judge directed discovery of the requested documents, with changes to the categories concerning written arrangements between defendants and complaints. The complaints category was limited to the three years before the incident. The court left the timescale and the relevant deponent to be addressed with the parties.
The underlying personal injuries action names Frank Somers as plaintiff and also names Scaff Hire Limited and H&M Scaffolding Limited as defendants. The judgment describes Kilbaine as Somers’s employer and a subcontractor, and Cosgrave Developments as the site’s main contractor. The plaintiff alleges he suffered personal injuries after falling from scaffolding at the site. Kilbaine’s defence denies that its negligence caused the injuries, contends that liability attaches to other defendants and pleads contributory negligence. The judgment does not decide those allegations or the overall liability for the accident.
Cosgrave had objected that discovery was premature because it had not served a defence and because particulars of Kilbaine’s indemnity and contribution claim remained outstanding. The judge held that, in the absence of an application for directions on pleadings under the relevant court rule, the notice of indemnity and contribution was the final pleading between those defendants. The lack of a defence to the plaintiff’s claim did not prevent their pleadings from being closed between themselves. He also concluded that the 2004 Act’s definition of “pleading” did not cover claims made between defendants in this context.
The court found the discovery request broadly relevant and necessary. The categories included accident reports and witness statements; documents about site safety, scaffolding and responsibilities; records concerning a loading bay for a teleporter; and documents about the teleporter driver’s employer. The judge said documents did not have to be created if none existed. He also noted that Cosgrave had not filed a replying affidavit disputing the factual basis of the application.
The ruling concerns discovery between defendants in the personal injuries proceedings. It does not determine whether the worker was injured as alleged, who was responsible, or whether any defendant is liable.