The High Court has refused an application by Ladislav Kunzo to compel Kepak Longford Unlimited Company to produce an accident investigation report concerning his workplace injury, finding that the report was protected by litigation privilege.
Mr Justice Barr delivered the judgment on 12 March 2021 in proceedings brought by Mr Kunzo, who was employed as a boner at the company’s meat processing plant in Ballymahon, Co Longford. He alleged that he suffered severe lower back pain and collapsed while handling large pieces of meat on 14 September 2016. His personal injury claim alleged negligence, including excessive lifting demands, inadequate training and assistance, and unsafe working arrangements. Those allegations were not determined in this application.
A discovery order made by consent in November 2019 required the company to disclose specified categories of documents, including the accident report form. In its discovery affidavit, the company claimed legal professional privilege over an item described as the “14-10-16 Kepak accident report form, statements and documents”. Mr Kunzo applied for an order compelling production, arguing that the materials had been created soon after the accident and were required for health and safety reporting.
The company’s health and safety head, Kate Robak, said the investigation was conducted because workplace accidents commonly led to claims, and that the report and related material were sent to the company’s solicitor to assess potential liability and prepare for anticipated litigation. She accepted that the material could also inform periodic safety reviews, but said that was a secondary use.
The judge accepted that litigation privilege could apply before proceedings were formally threatened, if litigation was reasonably anticipated and was the dominant purpose for creating the documents. He found that the accident report was the culmination of a detailed investigation, including interviews, witness statements and review of CCTV, and was prepared to obtain legal advice about an anticipated claim. Its use in safety reviews was subsidiary. The court was also satisfied that the report was not created for submission to the Health and Safety Authority.
The judge separately held that the 2019 discovery order specified the accident report form but did not refer to witness statements, medical reports or photographs. Those supporting materials therefore fell outside the order. He added that, even if they had been covered, they too were protected by litigation privilege. The court refused the orders sought in Mr Kunzo’s application. The judgment decided only the privilege and production dispute; it did not determine liability for the injury claim.