The High Court has dismissed Jack Donohoe’s personal injury action against Irish Press plc, finding that prolonged delay and the loss of evidence created a real and unavoidable risk that the company could not receive a fair trial.
Mr Justice McCarthy delivered the judgment on 27 July 2007. The order ended the action; the court did not determine whether the alleged workplace exposure occurred or whether the company was liable.
Mr Donohoe alleged that he was exposed to asbestos while working at the company’s Burgh Quay premises. His statement of claim said he inhaled dust and fibres, including asbestos from brake pads, in a machine room. He said imaging in January 2001 showed calcified pleural plaques. His pleaded case acknowledged that he had no symptoms, no evidence of asbestos-related lung disease and no impairment on pulmonary function testing. His doctor said monitoring was needed because of an increased risk of future lung conditions.
The proceedings began in January 2002. After the plaintiff replied to a request for particulars in February 2003, no substantive step was taken until further particulars were provided in January 2007. Notices of intention to proceed had been served in December 2004 and November 2006. The judge found the post-2003 delay inordinate and noted that the plaintiff’s affidavit gave no explanation for it.
The defendant’s evidence was that many company records had been disposed of during a receivership, followed by liquidation. It had identified only one surviving employee who might be able to give relevant evidence, and that person was ill. The defendant also faced difficulty identifying insurers for the relevant periods, establishing cover for only some years.
Applying principles including those in *Primor plc v Stokes Kennedy Crowley*, the judge considered both the delay and the balance of justice. He said the defendant was gravely prejudiced and that the risk of an unfair trial was real and unavoidable. The defendant’s failure to deliver a defence and its time taken to consider its position after the case was revived did not, in the circumstances, outweigh the prejudice. The judge also considered that the alleged injuries were not catastrophic and any compensation would likely be modest.
The court dismissed the action for want of prosecution or, alternatively, for inordinate and inexcusable delay, under its inherent jurisdiction. This was a procedural dismissal, not a finding on the truth of the exposure allegations or the merits of the personal injury claim.