High Court orders discovery of specific medical records in personal injury case but refuses broad fishing exercise.

Neutral Citation: [2016] IEHC 390

THE HIGH COURT

[2015No.3682P]

BETWEEN

ROSEMARY POWER

PLAINTIFF

AND

TESCO IRELAND LIMITED

DEFENDANT

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2016.

Part 1

Introduction

1. While working as a general retail assistant with Tesco Ireland Limited, Ms Power injured herself in July, 2014 when she fell over

shopping crates that had been placed in her way. She has since commenced these personal injuries proceedings. Tesco concedes

that the accident occurred but denies that Ms Power suffered the various injuries that she claims; and it requires that Ms Power

prove the causal link between the accident and the injuries that Ms Power claims to have suffered.

2. Pursuant to O.31, r.12 of the Rules of the Superior Courts 1986, as amended, Tesco now comes to court seeking discovery of

various categories of medical records. The full categories, as stated in the notice of motion, are identified later below. In its solicitor’s

affidavit offering the different rationales for each of the categories of documentation of which discovery is sought, there appears the

additional statement that “Sight of the said medical records is also sought by way of disclosure in accordance with the decision of the

Supreme Court in the case ofMcGroryv. ESB [2003] 3 I.R. 407.” And during the hearing of the within application, the court was

referred in passing to the decision in McGrory. Notably, however, no order has been sought by Tesco under O.39, r.47, by reference

to some alleged want of disclosure by Ms Power.

Part 2

Disclosure and Discovery

3. Personal injury proceedings are a sub-category of civil litigation with their own particular concerns when it comes to issues of

disclosure and discovery. The most significant distinguishing feature of personal injuries cases is of course the disclosure requirements

extant under the Rules of the Superior Courts (No 6) (Disclosure of Reports and Statements) 1998(S.I. 391 of 1998) which added a

new series of rules (rules 45-51) to Order 39 of the Rules of the Superior Courts that formalised and amplified upon the judicially

approved arrangements as to disclosure that had previously pertained.

4. Order 39, rule 45(1)(a) of the Rules of the Superior Courts, 1998 provides that the disclosure rules apply to “any claim for damages

in respect of any personal injuries to a person howsoever caused”. This is a form of wording which suggests that there must be some

connection or relation between a plaintiff's claim and the personal injuries s/he has sustained, and this in itself frames rules 45 to 51.

5. Order 39, rule 46(1) and (2) require parties to disclose two categories of information. In summary, these are (1) schedules listing all

reports from expert witnesses intended to be called, and (2) statements detailing certain prescribed information such as the names

and addresses of witnesses intended to be called and a full statement of all items of special damage. Disclosure between the parties

should generally be contemporaneous. As to (1), only expert reports prepared by an expert whom it is intended to call to give

evidence need be disclosed; if, at any time prior to disclosure, an expert ceases to be an expert whom it is intended to call to give

evidence, her or his expert report need not be disclosed.

6. Notably, a party to litigation is required only to disclose reports prepared by experts. Order 39, rule 46(1)(e) gives some guidance

as to who might be considered an expert; however, it is not a definitive listing of who constitutes an expert. For example, it does not

mention psychotherapists who are undoubtedly experts in their professional field. To allow for the evolution of new expert disciplines

in the ever-expanding domain of science, this Court would tend to be guided by the reference in s.2 of the Civil Liability and Courts

Act 2004 to expert evidence being “evidence of fact or opinion given by a person who would not be competent to give such evidence

unless he or she had a special skill or expertise”. So when, for example, a solicitor is deciding if a particular report is an expert report,

the question s/he needs to pose to herself or himself is whether the author of that report is a person who would not be competent to

offer the opinions contained in that report unless s/he had a special skill or expertise arising.

7. Order 39, rule 45(1)(e) defines what is meant by a report. Although it does not prescribe a form of report, if an expert is to serve

the purpose for which a report is called, any opinion disclosed by an expert in her or his report ought to touch upon the factual matrix

on which that opinion is based. An expert need not commit to writing every opinion that s/he holds; however, the effect of Payne v.

Shovlin [2006] I.E.S.C. 5, a case not opened to the court but well known to practitioners in the field of personal injuries, appears to

be that any expert opinion committed to written form, favourable or adverse, ought to be disclosed.

8. The most elementary form of disclosure in personal injuries proceedings is when a plaintiff tenders herself or himself for examination

by a physician retained by the defendant. This has happened in the within proceedings. The uneasy balance between a plaintiff's

constitutional right to privacy and the constitutional demands as to fairness of proceedings which any such examination presents is

pragmatically reconciled by the courts through their being willing to grant a stay pending a plaintiff's attendance for medical

examination. This practice has received the sanction of the Supreme Court in McGrory v. ESB [2003] 3 I.R. 407 (considered below).

And that sanction removes any doubt which might perhaps otherwise have presented as to whether, by granting such a stay, the

courts were compromising to some extent a plaintiff's right to privacy.

9. McGrory imposes a general duty of cooperation on plaintiffs in personal injury cases, especially as regards a plaintiff's attending for

examination with a defendant's doctor. Stated briefly, it seems to this Court that the following principles can properly be identified

from the judgment of Keane C.J. for the Supreme Court in that case.

I. Promotion of Settlements.

[1] The interests of justice are served by the promotion of settlements rather than the prolongation of litigation and by the possibility

of early, complete preparation for both parties to a trial rather than by obliging one party to delay its full preparation until after the

trial has started. (McGrory, 412 (by reference to O’Sullivan v. Herdmans Ltd. [1987] 1 W.L.R. 1047, 1056)).

II. Granting a Stay.

[2] The court has ample (inherent) jurisdiction to grant a stay whenever it is just and reasonable so to do. (McGrory, 411 (by

reference to Edmeades v. Thames Board Mills [1969] 2 Q.B. 67)).

[Keane C.J. later identifies, at 415, three instances where this inherent jurisdiction “should be exercised”, viz. where a plaintiff (a) (i)

refuses to submit to medical examination or (ii) refuses to disclose his medical records to the defendant, or (b) refuses to permit the

defendant to interview his treating doctors. Given Keane C.J.’s separate endorsement, in McGrory, of the judgment of the Court of

Appeal of England and Wales in Dunn v. British Coal Corporation [1993] I.C.R. 591, it appears that the reference to non-disclosure of

medical records is to relevant medical records relating to injuries which are the subject of the action.]

III. Interviewing Opponent’s Witnesses.

[3] There is no property in a witness of fact. (McGrory, 412 (by reference to Harmony Shipping Co. v. Saudi Europe [1979] 1 W.L.R.

1380, 1384)).

[4] The court, vested with the primary duty of ascertaining the truth, has a right to every man’s evidence. (McGrory, 413 (by

reference to Harmony)).

[5] No side to proceedings can debar the court from ascertaining the truth by seeing a witness of fact before trial or by purchasing

his evidence or by making communication to him. (McGrory, 413 (by reference to Harmony)).

[6] No side to proceedings can prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling

him to give evidence or from issuing him with a subpoena. (McGrory, 413 (by reference to Harmony)).

[7] While many communications between a solicitor and an expert witness will be protected by legal professional privilege, the

preceding points under this heading apply also to expert witnesses. (McGrory, 413 (by reference to Harmony)).

IV. Patient Confidentiality.

[8] The right of the patient to confidentiality ceases when he puts his health in issue by claiming damages in a lawsuit. This is

because the right to confidentiality is eclipsed by the right of those facing the action to know the basis and scope of the claim being

advanced. (McGrory, 413 (by reference to Hay v. University of Alb Hospital (1991) 2 Med. L.R. 204, Nur v. John Wyeth & Brother Ltd.

(1996) 7 Med. L.R. 300); see also McGrory, 414).

[9] A plaintiff who seeks to bring an action but, by his own conduct, prevents material evidence being obtained by the other side and

placed before the court is impeding the process of law. (McGrory, 413 (by reference to Shaw v. Skeet (1996) 7 Med. L.R. 371); see

also McGrory, 414).

[10] The court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating

doctors any information they may have relevant to the plaintiff’s medical condition. (However, the plaintiff cannot be required to

disclose medical reports in respect of which he is entitled to claim legal professional privilege). (McGrory, 414).

V. Discovery as an Alternative.

[11] There is no room in properly conducted litigation for an approach which denies one side access to relevant material which will be

available at a later stage of the proceedings by discovery or through disclosure of reports and statements. (McGrory, 414).

[12] A plaintiff is not entitled to impede access to relevant material by withholding his consent to a treating doctor giving information

as to his condition when that information will in any event be available at a later stage. (McGrory, 414).

VI. Seeking Medical Examination.

[13] There is a right on the part of a defendant in an action where the plaintiff claims damages for personal injuries (a) to have the

plaintiff medically examined, (b) to have access to (à la Dunn) relevant medical records, and (c) to interview his treating doctors.

This right is not dependant on the pleadings having closed because, absent agreement on quantum, damages are always in issue.

(McGrory, 414).

[14] Once proceedings have been instituted, (a) a medical examination of the plaintiff, (b) full access to relevant medical records,

and (c) interviews with his medical advisors, are of assistance in enabling a defendant to form a view as to (i) the amount of damages

which the plaintiff is likely to recover and (ii) any lodgement which they should prudently make in court with their defence. (McGrory,

415).

[15] Whether or not liability is a live issue in a case, making the material just referred to at an early stage of litigation, instead of

withholding it until the action itself when it will have to be produced, can only facilitate earlier settlement of actions. (McGrory, 415).

10. At first glance, McGrory might seem to open up a brave new world of disclosure, but in truth it is difficult to see that it has done

anything to change the obligations that otherwise arise for parties to personal injuries proceedings pursuant to their discovery

obligations under O.31, r.12 of the Rules of the Superior Courts. This is because McGrory is concerned with relevant medical records,

the critical test for discovery is relevance and necessity, and, when it comes to necessity, as Murray J. observed in Framus v. CRH

plc [2004] 2 I.R. 20, 38, “[T]he primary test is whether the documents are relevant to the issues between the parties”, but, as

Murray J. went on to note, “Once that [relevance] is established it will follow in most cases that…discovery is necessary for the fair

disposal of those issues.” Proportionality has its role to play in this.But the first focus is on relevance (with necessity generally

tagging along and proportionality feeding in).

11. One question that does arise, and which is not answered by McGrory, nor it seems more generally is where the outlying borderline

lies between medical records that are ‘relevant and necessary' and those that are not. Given Keane C.J.'s favourable reference to

Dunn in McGrory – albeit in a particular regard –it might be considered that the decision of the Court of Appeal of England and Wales

in that case provides a useful starting-point in seeking to answer this question. It offers the proposition that general discovery of a

plaintiff's entire pre-medical history ought to be allowable. However, this is but a starting-point: discovery, were it always or even

widely to be ordered on this basis, would almost invariably be disproportionate (oppressive). Hence it would seem to this Court that

the correct position as a matter of law, when it comes to disclosure/discovery in personal injuries proceedings, is that (a) there

should be a medical examination of the plaintiff by the defendant's doctor (with the usual right of the court, as acknowledged in

McGrory, to grant a stay), and (b) (i) if that examining doctor forms the opinion that there is some pre-existing condition, and/or (ii)

there is some other evidential indicator to which the defendant can point that suggests a plaintiff’s prior medical history to be

relevant, then and in that instance access to prior medical history will typically be ordered, subject to any such time constraint as

appears appropriate in the particular circumstances arising so as to ensure that only that which is relevant and necessary is

discovered and oppression avoided.

12. In this last regard, the court notes that there is, it seems, a not uncommon practice on the part of the courts when ordering

discovery of a plaintiff’s prior medical history to confine that discovery generally to a three-year period in a bid to ensure

proportionality and avoid oppression in the discovery process. Be that as it may, there is no presumption that three years is good,

with anything shorter being untypical and anything longer verboten: a shorter or longer period, stretching in theory at least to a

plaintiff’s entire medical history (though it is difficult to conceive that many circumstances would present in which this would be

appropriate) may be merited in the particular circumstances presenting in any one case.

13. Armed with the foregoing principles, what discovery ought to be ordered in this case?

Part 3

Discovery to be Ordered

14. The court identifies hereafter the detailed categories of documentation of which discovery is sought by Tesco, the rationale

offered for the discovery of each category, and what, if any, order the court will make in respect of each category of discovery

sought.

Category 1.

Documentation Sought: All medical notes/records to include (but not limited to) all admission and all discharge notes/records, medical

reports, scans and other documentation and materials pertaining to the Plaintiff’s attendance at the Accident & Emergency

Department of South Tipperary General Hospital, on the 22nd of July, 2014, and any subsequent attendance at South Tipperary

General Hospital, including any diagnosis of, or investigation and treatment prescribed in respect of the same, in the possession,

power or procurement of the Plaintiff, including all notes, memoranda, supporting documentation and correspondence.

Rationale Offered for Discovery Sought: Ms Power alleges that on 22nd July, 2014, she sustained injuries to her face, nose, knees,

right forearm, right wrist and hands, as a result of falling over shopping crates at the Defendant’s premises. The Defendant has joined

issue with the Plaintiff in this regard, and the Plaintiff’s medical records will clearly be of significance to the Judge’s consideration of

the relationship between the personal injuries allegedly sustained and the accident complained of. The aforementioned discovery is

therefore necessary for fairly disposing of the issues between the parties and for the saving of costs. Sight of the said medical

records is also sought by way of disclosure in accordance with the decision of the Supreme Court in McGrory.

Ms Power’s Response: Disclosure by way of medical examination has already occurred through examination of Ms Power by a physician

appointed by the defendant and that physician is free to liaise with Ms Power’s doctors and consult their notes and records.

Moreover, absent proof that these documents are necessary as opposed to desirable, discovery is declined.

Decision: These documents are relevant and necessary to a proper disposal of the proceedings. The court will order this category of

discovery as sought. Having ordered discovery, it does not appear necessary for the court to consider the issue of disclosure further

at this time.

Category 2.

Documentation Sought: All medical notes/records/scans and other memoranda compiled by Dr Stephanie Dowling GP in respect of Ms

Power for a period of twelve months immediately subsequent to the accident of 22nd July, 2014.

Rationale Offered for Discovery Sought: The discovery sought is, Tesco claims, necessary for the purpose of establishing the precise

circumstances giving rise to the injuries complained of and the nature and extent of Ms Power’s subsequent out-patient treatment

with a view to mitigating her loss. This discovery, Tesco claims, is necessary for fairly disposing of the cause or matter between the

parties. Sight of the said medical records is also sought by way of disclosure in accordance with the decision of the Supreme Court in

McGrory.

Ms Power’s Response: Disclosure by way of medical examination has already occurred through examination of Ms Power by a physician

appointed by the defendant and that physician is free to liaise with Ms Power’s doctors and consult their notes and records.

Moreover, absent proof that these documents are necessary as opposed to desirable, discovery is declined.

Decision: These documents are relevant and necessary to a proper disposal of the proceedings. The court will order this category of

discovery as sought. Having ordered discovery, it does not appear necessary for the court to consider the issue of disclosure further

at this time.

Category 3.

Documentation Sought: All medical notes/records/scans of the Plaintiff from all treating physicians, general practitioners, consultants

or other specialists, physiotherapists whatsoever with whom the Plaintiff attended for a period of five years up to and including the

date of the alleged accident, the subject matter of the within proceedings, including any diagnosis, investigation and prescribed

treatment, in the possession, power or procurement of Ms Power, including all notes, memoranda, supporting documentation and

correspondence.

Rationale Offered for Discovery Sought: The discovery sought is, Tesco claims, necessary for the purpose of establishing the precise

circumstances giving rise to the injuries complained of, and to ascertain what role Ms Power’s pre-accident history plated in respect

of Ms Power’s alleged personal injuries on foot of the accident the subject matter of the within proceedings. Ms Power maintains that

she has suffered diminished functional capacity, together with substantial and persistent pain and suffering as a consequence of the

accident complained of. Notwithstanding the extensive nature of the Plaintiff’s complaints, X-rays and scans performed following the

accident complained of did not disclose any obvious abnormalities, and the aforementioned discovery sought will clearly be of

significance to the injuries already sustained and the accident contended for. The discovery therefore is, Tesco claims, necessary for

fairly disposing of the issues between the parties and for the saving of costs. Sight of the said medical records is also sought by way

of disclosure in accordance with the decision of the Supreme Court in McGrory.

Ms Power’s Response: This category of discovery represents a ‘fishing’ exercise.

Decision: Given the discordance between the injuries claimed and the X-ray and scan results, it appears to the court that discovery

of this category of documentation is relevant and necessary and thus it will order this category of discovery as sought. The court is

entitled to have regard to proportionality and will therefore limit discovery of all of this category of documentation to a three-year

period before the accident. Having ordered discovery, it does not appear necessary for the court to consider the issue of disclosure

further at this time.

Category 4.

Documentation Sought: All records/notes/scans from all treating physiotherapists and psychotherapists for a period of twelve months

immediately subsequent to the date of the accident, the subject matter of the within proceedings, including any diagnosis,

investigation and prescribed treatment, in the possession, power or procurement of Ms Power, including all notes, memoranda,

supporting documentation and correspondence.

Rationale Offered for Discovery Sought: Ms Power has maintained that she has suffered diminished functional capacity following the

accident complained of. She maintains that she has also been rendered hypervigilant of tripping hazards on foot of the accident

complained of. Tesco has joined issue with Ms Power in this regard. The discovery, Tesco claims, is therefore necessary for the

purpose of establishing the steps taken by Ms Power to mitigate the alleged symptoms and to establish precise circumstances giving

rise to the injuries complained of. Sight of the said medical records is also sought by way of disclosure in accordance with the

decision of the Supreme Court in McGrory.

Ms Power’s Response: Disclosure by way of medical examination has already occurred through examination of Ms Power by a physician

appointed by the defendant and that physician is free to liaise with Ms Power’s doctors and consult their notes and records.

Moreover, absent proof that these documents are necessary as opposed to desirable, discovery is declined.

Decision: These documents are relevant and necessary to a proper disposal of the proceedings. The court will order this category of

discovery. Having ordered discovery, it does not appear necessary for the court to consider the issue of disclosure further at this

time.

Category 5.

Documentation Sought: All medical notes/records/scans to include (but not limited to) admission and discharge records from any

hospital attended by Ms Power or from any hospital from which treatment was received for a period of five years up to and including

the dates of the accident, the subject matter of the within proceedings.

Rationale Offered for Discovery Sought: The discovery sought is, Tesco claims, necessary for the purpose of establishing the precise

circumstances giving rise to the injuries complained of, and to ascertain what role Ms Power’s pre-accident history played in respect

of her alleged personal injuries on foot of the accident the subject-matter of the within proceedings. This discovery is therefore,

Tesco claims, necessary for fairly disposing of the issues between the parties and for the saving of costs. Sight of the said medical

records is also sought by way of disclosure in accordance with the decision of the Supreme Court in McGrory.

Ms Power’s Response: This category of discovery largely duplicates Category 3. And, as with Category 3, this category of discovery

represents a ‘fishing’ exercise.

Decision: Except as regards the hospital admission and discharge records, this category of discovery largely duplicates Category 3. It

appears to the court that discovery of the admission and discharge records to which reference is made is relevant and necessary for

a fair disposal of the proceedings. The court will therefore order discovery of the said hospital admission and discharge records; to

avoid unnecessary duplication the balance of this category is refused. The court is entitled to have regard to proportionality and will

therefore limit discovery of this category of documentation to a three-year period before the accident. Having ordered discovery, it

does not appear necessary for the court to consider the issue of disclosure further at this time.

15. The court notes that so far as discovery of the above documentation is concerned the usual arrangements apply: the party

making discovery (Ms Power) is obliged to inform her opponent (Tesco) if documentation clothed by the order of discovery is

privileged. Thereafter privilege can be relied upon by Ms Power to prevent Tesco from inspecting the documentation so clothed.

16. Finally, if some deficiency (unidentified thus far to the court) is contended by Tesco to present by reference to such disclosure as

has hitherto occurred in these proceedings, it is open to Tesco to make suitable application under O.39, r.47 of the Rules of the

Superior Courts.