Moore v St. John of God Community Services Company CLG & Anor (Approved)

Factual and Procedural Background

The judgment concerns a contested application for the discovery of documents in a personal injuries action. The Plaintiff, a care assistant employed by Company A, alleges that she was physically assaulted twice by a service user on a single date in November 2017 while attending to the service user at the accident and emergency department of The Hospital. The Plaintiff seeks discovery of documents including records of any previous assaults by the service user, risk assessments, and management and care plans relating to the service user. The Defendants oppose the application on grounds of speculation and the Plaintiff's failure to join the service user as a defendant.

Legal Issues Presented

1. Whether the categories of documents sought by the Plaintiff are relevant to the issues in the personal injuries claim.
2. Whether discovery of confidential medical and care records of the service user is necessary and justified despite confidentiality concerns.
3. Whether the Plaintiff should have joined the service user as a defendant to obtain discovery directly.
4. The proper approach to claims of privilege over documents relating to investigations of the incident.

Arguments of the Parties

Plaintiff's Arguments

• Discovery of documents regarding previous assaults, risk assessments, and care plans is necessary to prove the claim for personal injuries.
• These documents are relevant to establishing the service user's propensity for aggressive behaviour and the Defendants' knowledge thereof, which bears on liability.
• The categories requested are specifically identified by the Plaintiff's expert and are narrowly drawn.
• It is not speculative to seek discovery of previous assaults as the Plaintiff has pleaded and verified the assaults on the relevant date.

Defendants' Arguments

• The application is speculative because there is no plea that the service user previously assaulted staff members.
• The Plaintiff should have joined the service user as a defendant to obtain discovery directly.
• Documents relating to investigations of the incident are likely privileged and should not be disclosed.
• Reliance on precedent where claims without particularised incidents were refused discovery is cited to oppose the application.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by assessing the relevance of the requested documents, emphasizing that relevance is determined by the pleadings rather than evidence. The Defendants had pleaded that the assault was not reasonably foreseeable and that appropriate assessments and training had been provided to the Plaintiff. This plea made the documentation evidencing such assessments relevant and discoverable. The court rejected the Defendants' argument that the absence of a positive plea about prior assaults by the service user negated relevance, noting that the Defendants themselves pleaded the risk assessment and training.

The court distinguished the present case from precedent where discovery was refused due to lack of particularised incidents, highlighting that here the Plaintiff pleaded specific assaults. It held that seeking discovery of previous assaults was not speculative but reasonable given the Defendants’ peculiar knowledge.

Regarding confidentiality, the court acknowledged the sensitive nature of medical records, especially of vulnerable persons not party to the proceedings. It applied a balancing test from recent appellate decisions weighing the materiality of documents against confidentiality. The court found that narrowly drawn categories of documents were necessary for a fair trial, particularly to assess foreseeability, risk assessments, and compliance with care plans.

On the issue of privilege over investigation documents, the court rejected the Defendants’ broad claim of privilege, requiring proper affidavit evidence to support such claims rather than bald assertions.

The court also rejected the suggestion that the Plaintiff should join the service user as a defendant to obtain discovery, reasoning that the Defendants hold the relevant documents and that joining the service user would be unnecessarily cumbersome and inappropriate.

The court proposed modifications to the categories of documents sought to remove duplication and to narrow the scope, particularly with respect to medical regimes, allowing discovery of management and care plans and records related to PRN medication.

Finally, the court provisionally awarded costs to the Plaintiff, noting the Defendants’ failure to respond timely and the Plaintiff’s substantial success on the discovery application.

Holding and Implications

The court granted the application for discovery with modifications to the categories of documents sought, directing discovery of:

• All documentation recording violent behaviour or assaults by the service user on staff during the three years prior to the incident date.
• All psychiatric, psychological, or behavioural specialist reports indicating or advising positive behavioural support plans or discussing PRN medication, including administration records around the incident date.
• All management and care plans applicable to the service user, including positive behavioural support plans, for the three years prior to the incident date.
• Policies, protocols, or procedures in force at The Hospital and Company A relating to assaults or aggression by service users as of the incident date.

Discovery was refused as to overbroad categories relating to medical regimes beyond those specified above.

The Plaintiff’s application for discovery was thus granted with modifications.

The direct effect is that the Plaintiff will obtain access to narrowly tailored, relevant documentation necessary to fairly adjudicate the foreseeability and liability issues in the personal injuries claim. No new precedent was established beyond the application of established principles balancing relevance and confidentiality in discovery.