HC 172/04
[2001 No. 4320 P]
THE HIGH COURT
BETWEEN
HELENA BYRNE
PLAINTIFF
AND
EASTERN REGIONAL HEALTH AUTHORITY
DEFENDANT
DECISION OF THE MASTER 27th April 2004
	The plaintiff alleges she was assaulted and battered by a patient in the defendant’s hospital where she was employed as a Staff Nurse.  The date of the incident was 5th November 1998.  She sustained quite a painful soft tissue injury to the right side of her neck, the right shoulder and the right arm.  She also complains of anxiety, flashbacks and nightmares.
	In the Statement of Claim of 2nd May 2001, the plaintiff particularises her allegation of carelessness/negligence on her employer’s part in terms of an unsafe system of work including inadequate training, insufficient number of co-workers, failure to restrain or sedate the (unnamed) patient.  The defence denies all such allegations, and denies the assault itself. 
	I do not know if the plaintiff is actually hampered by lack of evidence in respect of these allegations.  One would expect that the letter seeking voluntary discovery (18/10/02) would specify such difficulties but it doesn’t.  Instead, in respect of each of the nine categories sought, (bar one), one and only one reason is specified namely, “in the interests of disposing fairly of these proceedings and for the purposes of saving costs.”  This formula falls short of what is required of the applicant by the Rules of Court.  Quite clearly it is also of no help to the defendant in judging whether or not to concede discoverability in response to the letter.  And so the parties end up before me.  
	The application was grounded on the affidavits of the plaintiff’s solicitor listing facts and averring that discovery is “necessary” to prove the facts.  (The affidavit does not indicate what difficulty the plaintiff has in proving same by any other means).  The facts are (stated in the form of questions):
(1)	What was the medical condition of Claire Brady?
(2)	Did the defendant assess the risks facing the plaintiff in dealing with Claire Brady?
(3)	Was there a proper “system” for assessing, restraining and managing such patients?
(4)	Did the defendant have a policy to deal with aggressive patients; was it “sufficient” and “adequate”?
(5)	Did the defendant complete a safety statement and did it assess the risks faced by the plaintiff?
(6)	Did the defendant know, pre accident, that concerns had been expressed regarding staffing levels; did it “address” the concerns?
(7)	What was the level of similar incidents? Was this incident foreseeable and did the defendant “fail to act upon previous incidents”?
Having thus listed the matters which prompted the discovery application, same must be cross checked with the pleadings to establish whether these facts are matters in issue.  We must go further, though, and, even in respect of disputed facts, determine if the facts are material and causative, and not just merely peripheral, secondary, or logically relevant to a fact in issue but not probative thereof.  In short, is it a fact which the plaintiff must prove to win the case?  Or is it immaterial; a factual dispute which the court will not be enquiring into or need to adjudicate?
The plaintiff does not need discovery of documentation concerning facts which are not material.  The assault is material.  Whether the patient  was a hazard is material.  Want of care is material.  It is not necessary to determine whether the defendant knew how to prevent it and how the defendant determined what level of care it would exercise is neither here nor there.  If the plaintiff cannot prove the assault and/or the hazard, she will not be able to invite the court to award damages on the basis of any secondary or non causative carelessness on the defendant’s part, even though such carelessness be easily shown.  Injuria sine damno. 
Put another way, queries 2 to 7 inclusive above listed are matters in respect of which, even if the defendant could be adjudged to have acted with care, findings in the defendant’s favour would not be an answer to the plaintiff’s claim: they are issues which are not material.  
Patient Claire Brady either was or was not a hazard.  The plaintiff has to prove that she was but can do so, on the balance of probability, inferentially from the fact of the assault.
The inference, however, may be displaced by evidence of an unremarkable previous history: if she was not a hazard (until immediately after the assault in question) the defendant can avoid liability.  One must assume that it is this proposition which the defendant intends to rely on, namely, that it did not need to take steps in anticipation of just such an assault either because it had never occurred before and because there was nothing in the patient’s chart to point to such a possibility.  Consequently the experts, and the Court in due course, will have to assess the patient’s behavioural patterns and the plaintiff must have appropriate discovery to this end.
If she was in fact a hazard (as demonstrated from medical records or behavioural history) the defendant of course cannot avoid liability by arguing that it did not know, because it ought to have known.  But the plaintiff still has to prove want of care, and can again do so, inferentially from the fact that the assault occurred.  What if the defendant contends that the care it exercised was reasonable and proportionate to the risk?.  The extent of the risk must be determined: was it slight or serious? Did the standard of care meet the demands of the situation?  Evidence of the actual system prevailing on the day is available to the plaintiff and her experts in the detail of the circumstances of the assault known to the plaintiff (e.g. inadequate staffing, no alarm system etc etc).  No discovery is “necessary” in that regard, nor is it sought.  But here again, medical records and the behavioural history of the patient will feature as data enabling the experts to assess the risks to staff posed by the patient, against which the Judge will rate the safety of the system of work as either adequate, in law, or deficient: third party opinions in that regard are not of any “probative” value since the issue is a question of law.
I will therefore order discovery in respect of the material in Claire Brady’s file, as follows:-
“any current risk assessment in respect of patient Claire Brady, or in the absence of same, documents containing such references to history, assessment, treatment and medication of patient Claire Brady as would form part of such risk assessment.  
This category is in substitution for the category sought namely:
“All medical records and case notes in the possession or power of (sic) procurement of the defendant relating to the patient Claire Brady who inflicted the plaintiff’s injury including inter alia clinical notes/medical notes, nursing Kardex notes prescription charts and drug recording charts”.
	Practitioners should avoid seeking entire files when a clearly identifiable subset is sufficient for the proof of the disputed fact.  If the subset is enough, the balance of the larger file is obviously not “necessary”.
	The defendant must get the costs of the motion, in view of the plaintiff’s failure to properly request voluntary discovery.