The State must disclose a range of documents to a former aircraft mechanic in the Air Corps who is suing it over his alleged exposure on dates during the 1990s to dangerous chemicals, the Supreme Court has ruled.
In his personal injury proceedings, yet to be heard, Gavin Tobin also alleges he was, on one occasion during the 1990s, subject to “tubbing” - doused with chemicals by other Air Corps personnel.
He is among several former mechanics suing over alleged exposure to dangerous chemicals and solvents during their employment.
Today, a five-judge Supreme Court gave a unanimous judgment overturning a Court of Appeal (COA) decision that Mr Tobin’s discovery application was premature.
The Supreme Court disagreed with the COA that cost and other considerations meant Mr Tobin should, first of all, seek the material by way of interrogatories, written questions specifying the exact documents being sought which would require sworn answers from the State.
The court’s judgment outlined the proper overall approach to the discovery of documents in circumstances where the burden of complying with discovery is likely to be “significant”.
Giving the judgment, the Chief Justice, Mr Justice Frank Clarke, noted Mr Tobin was employed as an apprentice aircraft mechanic in the Air Corps in 1989 and began work at the apprentice school at Casement Aerodrome in 1990.
He remained there after his training until his service ceased in 1999.
In his case against the Minister for Defence and the State, Mr Tobin alleges his first exposure to dangerous chemicals was in 1991 in the Engine Repair Flight (ERF) workshop and his last exposure was in February 1994 after which he was transferred to work in IT in the Air Support Company Signals.
The State denies he suffered the alleged injuries, requires him to fully prove his claims about exposure to dangerous chemicals and solvents and has also pleaded contributory negligence on his part.
The State consented to the discovery of some categories and objected to others for reasons including it would take 10 staff members and about 220 “man-hours” to locate, review and categorise the documents.
In disputing discovery could be achieved by interrogatories, Mr Tobin said he does not, and could not, be expected to know all of the chemicals in use within the workplace.
The Chief Justice said the initial onus of establishing that disclosure of any particular category of document is “necessary” for the fair and just resolution of a case at a proportionate cost rests on the party requesting discovery.
When that onus is discharged, the onus moves to the requested party to establish there are other and significantly more cost-effective means of achieving the same ends of a fair and just resolution of the case.
Applying those principles to this case, he concluded the COA had erred in its decision.
In this case, no concessions of fact were made by the State defendants with the effect Mr Tobin must establish all matters relevant to his claim, he said. Had a “more nuanced” approach being taken by the defence, the discovery sought would have been reduced.
In October 2016 the High Court granted Mr Tobin an order for discovery of the chemicals he used while working at Casement Aerodrome from 1989 to 1999. He had argued that he would need a full list of the chemicals he was asked to use during his time in the Air Corps in order to make his case against the State.
Mr Justice Paul McDermott granted the discovery order in the High Court and said that “the quantities and dates of purchase and use of chemicals and mixtures and the safety data concerning their handling, application and use form a highly relevant and important part of the case”.
He further ruled that Mr Tobin “will suffer serious disadvantage in the preparation and presentation of his case if the relevant records sought under these categories are not made the subject of a discovery order”.
Today’s Supreme Court judgement was referenced in advance at a recent meeting of the Public Accounts Committee.
On July 4 last, Social Democrats TD Catherine Murphy raised the Air Corps cases with SCA director, Ciarán Breen who said the Supreme Court ruling in the Tobin case would have implications for others to follow.
“One is in the court of appeal, and I think has been given a date for the year after next because there's a glut of appeals in the Court of Appeal, and others are awaiting an important decision by the Supreme Court on a discovery issue,” Mr Breen had said of the status of the eight cases.
The State’s approach meant Mr Tobin, among various matters, must demonstrate whether there was negligence and if there was a causal connection between any such negligence and the injury caused.
For expert evidence to be of any probative value, that would also need to be based on facts concerning his exposure to chemicals, he said.
The range of chemicals to which he was exposed will undoubtedly potentially be an issue at trial, the Chief Justice said. He disagreed with the COA the discovery should be confined to the chemicals utilised at the ERF, noting Mr Tobin had not specified the exact location of his last alleged workplace exposure to chemicals in 1994.
While the discovery sought would place a material burden on the State, that burden was “moderate” and not extreme and he was not convinced there would be a very great saving achieved by using interrogatories as opposed to discovery.
For those and other reasons, he found the High Court was correct in directing discovery as sought but should have confined discovery in respect of some categories to a narrower period of time - the period during which Mr Tobin was employed in the ERF workshop, he said.