Former Air Corps mechanic alleges exposue to dangerous chemicals

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 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" - being doused with chemicals by other Air Corps personnel.

He is one of several former mechanics suing over alleged exposure to dangerous chemicals and solvents during their employment.

On Monday, a five- judge Supreme Court gave a unanimous judgment overturning a Court of Appeal decision that Mr Tobin’s discovery application was premature.

The Supreme Court disagreed with the Court of Appeal 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 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 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 Court of Appeal 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.

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.