THE HIGH COURT
7990P/1999

BETWEEN

Charles Quigley & Patricia Quigley

										   PLAINTIFFS
-and-

The County Council of Dun Laoghaire & Rathdown and Ascon Limited 
and M.C. O’Sullivan & Company Limited

									          DEFENDANTS

JUDGMENT delivered by the Master of the High Court on the 3rd day of May 2002	 

	This case presents an opportunity to focus on the matter of the state of a party’s knowledge, and whether to order discovery of documents which might be probative of such state.
	Discovery should only usually be ordered of documents which may even indirectly assist a party to prove a material fact.  Material facts are those facts which are essential ingredients of the cause of action.  Failure to prove such a fact is fatal to the proceedings.
	It is a rare enough case which is based on a cause of action an essential ingredient of which is the defendant’s state of knowledge.  Contrariwise a defendant cannot usually expect to avoid liability by proving ignorance:  this is a proposition which is fully answered by the Plaintiff’s plea that a defendant “ought to know”.  Traditionally this plea is to be found in a rolled up plea that the defendant “knew or ought to have known”, but in logic the two pleas play different roles in the action, and ought to be separated.
	The plea that a defendant’s liability is triggered by his state of knowledge is not (as usually found) a particular of negligence but is instead the basis of the alleged existence of a duty of care arising out of such knowledge and not otherwise.  It is a plaintiff’s alternative formulation of a duty of care which differs factually and legally from the duty based on the mere physical proximity of the parties in whatever are the alleged factual circumstances.  It is a “stand alone” claim.
	In most cases, the plaintiff can succeed by proving that he was injured by a motorist driving dangerously, by the harassment of a fellow employee, by a hazard on the building site, without having to prove that the motorist knew he was driving dangerously, or that the employer knew of the fellow employee’s track record, or that the builder knew the scaffolding was unsafe.  In these cases (almost res ipsa loquitur cases), if the Plaintiff fails to succeed his primary claim, he cannot, as a matter of logic, succeed in his secondary or alternative claim, namely that the injury was caused by breach of a different duty of care, that grounded on a material fact regarding the defendant’s state of knowledge.
	Consequently it is hardly ever necessary to prove, as a material fact, the state of the defendant’s knowledge.  There are of course clear exceptions such as the cases of defendants whose breach of duty of care is in permitting a recurrence of a circumstance which was known to them to have caused an injury when it first occurred.  There, the duty of care springs from the defendant’s state of knowledge - it is the primary case pleaded by the Plaintiff.
	In other cases unless the Court is satisfied that the plaintiff has a stateable alternative case, based on defendant’s knowledge, which can succeed even though the primary case fails, discovery of documents as to the defendant’s state of knowledge is not appropriate.
	As for the particulars of negligence usually in the form of “ought to have known”, clearly if the plaintiff wishes for whatever reason to prove this as a fact, it is a matter for third party, usually expert, evidence and clearly not a matter which the plaintiff would expect to find documentary leads in the discovered documents of the defendant. 
	In this case the Plaintiffs allege that as owners/occupiers of premises in the immediate vicinity of civil engineering works being carried out by the defendants in 1995 they were owed a duty of care and that, in breach of such duty, drilling and blasting operations caused structural damage.
	The defence of Statutory authority is not pleaded but instead the defendants deny the Plaintiffs’ allegations.
	The Plaintiffs’ alternative claim (as per the above analysis) is that the defendants failed to do certain things before drilling and blasting commenced, and/or failed to stop work after receiving complaints.
	The Plaintiffs now seek discovery of four categories of documents which may be probative (directly or indirectly) of the material facts of the said alternative claim namely
		          (a)  Pre work assessments of the possibility of damage
		          (b)  Precautions to prevent or minimise
		          (c)  All complaints regarding damage actually caused
		          (d)  Response/remedial action following such complaints.
	As I am of the view that it is pointless for the Plaintiffs to seek to argue their alternative claim in the event of the primary claim failing, and as I am of the view that the discovery now sought is of facts which are not material to the primary claim, I will not order discovery of these classes of documents.