The High Court has ordered Arrabawn Co-operative Society Limited to make discovery in a personal injuries case brought by David White over an alleged workplace accident at the company’s milk powder plant in Nenagh, County Tipperary.
In a judgment delivered on 26 May 2021, Mr Justice Garrett Simons rejected the company’s argument that a criminal prosecution pending against it meant it could resist discovery without identifying particular documents or explaining why they were privileged. The judge said the court alone had authority to decide a claim of privilege.
The proceedings concern an accident said to have happened on 28 April 2017. The plaintiff’s case is that he suffered serious burns while removing a filter from a pipeline carrying very hot milk, after a filter cap on a parallel pipe allegedly blew off and sprayed him. He alleges, among other things, inadequate safety training and that the company failed to heed warnings about the filter cap and malfunctioning shut-off valves. The company’s defence denied the allegations and pleaded that the plaintiff was entirely responsible or contributorily negligent; the judge noted that those pleas were not particularised.
The Health and Safety Authority has brought a prosecution against the company over the incident, which is pending before the Circuit Criminal Court. The company argued that producing documents in the civil case could interfere with its right against self-incrimination. The judge did not rule on whether that privilege applies to the company or covers any particular documents.
The judge found that the ten requested categories met the tests of relevance, necessity and proportionality. They include accident records, training and operating procedures, records of earlier incidents, complaints, inspections and repairs, workplace risk assessments and safety statements, and correspondence with the Authority. He said the broad range of disputed facts in the company’s defence supported discovery. Several categories were limited to the 24 months before the accident.
The court said privilege would normally be assessed after an affidavit of discovery identifies the documents and states the grounds for withholding them. On the information available, the company’s claim was not one that must inevitably succeed. The judge observed that the court lacked detail about the documents and whether the Authority already had any of them. Any challenge to privilege must await a later application for inspection; the merits of the privilege claim were not decided in this judgment.
The application was allowed. The company must file an affidavit of discovery, sworn by its chief executive, Conor Ryan, within six weeks of the order being perfected. The plaintiff may apply for inspection if he wishes to challenge any privilege claim. The judge’s provisional view was that the plaintiff should recover the costs of the motion, but invited written submissions on costs by 9 June 2021 if the company sought a different order.