THE HIGH COURT
2001 No 16106 P
BETWEEN
MICHAEL O'DONOVAN
PLAINTIFF
AND
IRISH DUNLOP COMPANY LIMITED AND OTHERS
DEFENDANT
Decision of the Master of the High Court 10th October 2002
The Pleadings in this case outline the Plaintiffs claim. Sometime in his 70th year, he commenced to notice difficulty with bladder control and two years later his urologist diagnosed bladder cancer and arranged for endoscopic resection in February 2001. We are told that "the Plaintiff will require regular repeat examination of his bladder and stands a fifty percent chance of suffering further bladder tumours", and that "the Plaintiff is very concerned and continues to suffer a diminution in the quality of his life". He will be 75 years of age next January. If the particulars of injury in the Statement of Claim dated the 17th December 2001 were up to date, we may infer that no new tumour was found during 2001, suggesting a hopeful prognosis.
The plaintiff is suing the defendant because he worked in Dunlops in Cork between 1946 and 1976, and alleges that, in the production of rubber tyres, chemicals (specifically, 2-napthylamine) were released in the work place and that he was exposed to same and that this exposure caused the bladder cancer which first manifested itself some twenty two years later. More accurately the plaintiff alleges that exposure to these chemicals at some time between 1946 and 1976 (i.e. up to fifty years prior to first symptoms) caused his cancer.
In his affidavit grounding the application for discovery, Mr. Cantillon, the Plaintiffs solicitor, advises that an application for early trial was made to His Honour Judge Lavan on the 11th April 2002. Perhaps this was on account of the Plaintiffs age. An early hearing could be obtained for this case in the Circuit Court. The measure of damages for two years of discomfort, the shock of diagnosis and surgery, and a few years of uncertainty (actual and prospective) seems to be well within that Court's jurisdiction.
To succeed in his action the plaintiff must prove his exposure to carcinogens as alleged. He must prove on the balance of probability that this exposure, rather some other of the many causes of cancer (e.g. genetic, viral, environmental, hormonal etc.) caused his cancer: I note on p.398 of the Oxford Handbook of Oncology, 2002, that "cigarette smoking is known to increase 2-6 fold the risk of developing bladder cancer", and on p.4 that "environmental factors appear to have a major role in the aetiology of most types of cancer, accounting for over 80% of human cancer".
The plaintiff will also have to prove that his employer failed to take reasonable care of him in his work place. He will have to prove, in other words, that the plaintiff ought to have known, as at the dates of exposure, the risks of causing cancer to workers, and that there was some reasonable step or steps which they could have taken (given the state of technology at the time) to shield the plaintiff from such exposure. At the very least, the Plaintiff argues he should have been advised to have his urine checked regularly after he left the job.
It is for this uphill evidential battle that the plaintiff seeks to arm himself by seeking discovery of the defendant's files and papers going back fifty years.
It should be borne in mind by legislators who are proposing the creation of a Personal Injuries Assessment Board that one of the factors which creates delay and costs in litigation is the notion that every plaintiff must start with a blank sheet and build his case with evidential blocks. A Judge cannot form a view based on his own knowledge of the subject matter - he is barred from so doing, (save in regard to limited categories of so-called "Judicial Knowledge") and for good reason, namely transparency of the judicial function.
Taking this case as an example, the Plaintiff (because the defendant has denied them) will have to prove the nature of the chemicals emitted during production of tyres, his exposure, the causative link with his particular cancer which became symptomatic over twenty years later, and so forth. Also, (again because the defendant has denied it) he will have to prove that he was in fact employed by Dunlops. (The matter of the costs incurred as a result of such formal denials, perhaps knowingly evasive, is also a matter for the legislators). All of this proof could perhaps be adjudicated more expeditiously by expert assessment, reported to such a tribunal as "fact" to be taken as proven unless either party, on cause shown, seeks to re-open the assessor's conclusions. In this way the discovery process could perhaps be foreshortened or eliminated.

The plaintiff seeks discovery of documents in seven categories. I will order discovery of the following categories only:-
(a)	The Plaintiffs personnel file.
(b)	All documentation recording ordering, delivery and payment for
chemicals for use in the tyre production process in the calendar years
1952, 1962 and 1972.
(c)	Any Management memoranda concerning release of chemicals or
carcinogens into the atmosphere within the workplace, whether prepared
in response to complaints or otherwise, between 1946 and 1976.
(d)	Any document on which the Defendant will place reliance in support of
its plea that the plaintiffs claim is Statute barred.
(e)	Any documents addressed to the plaintiff relating to testing of his urine
after 1976.
Because of the perceived need for speed in this case, I will also make a cross order for discovery in the following categories :-
(a)	All of the Plaintiffs medical records from birth.
(b)	The death certificates of the plaintiffs parents.
(c)	All records of the employments of the plaintiff by the defendant or otherwise, during his working life.