O'Sullivan v Herdmans Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Elwyn-Jones,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Ackner |
| Judgment Date | 09 July 1987 |
| Judgment citation (vLex) | [1987] UKHL J0709-2 |
| Date | 09 July 1987 |
| Court | House of Lords |
[1987] UKHL J0709-2
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Ackner
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Mackay of Clashfern. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
This is an appeal from Her Majesty's Court of Appeal in Northern Ireland with leave of that court against an order that the Department of Health and Social Services produce the records of the decision given on 6 July 1982 of the pneumoconiosis medical board on the application of the appellant plaintiff to be held entitled to payment of industrial disablement benefit and of the decision given on 4 March 1983 by the medical appeal tribunal which heard an appeal from the decision of the board. The decision appealed against is an important one since it marks a change in the practice in Northern Ireland in relation to the granting of such orders.
The plaintiff claims to have contracted byssinosis by reason of exposure to excessive flax dust in the course of her employment between 1950 and 1961 in the factory of the respondent defendants. She claims that as a result she has severe respiratory impairment with considerable consequences for her working ability and her social and domestic activities. She claims that the defendants were negligent and in breach of their statutory duty under the Factories Act (Northern Ireland) 1938. The defendants deny liability. One of the major issues in the action is whether the plaintiff's chest condition is properly to be regarded as flax byssinosis. The Court of Appeal describe the background to the case as follows:
"In the diagnosis of flax byssinosis the history given by the patient is of peculiar importance. The disease is brought on by inhalation of excessive amounts of flax dust. The aetiology is obscure, but it is accepted that a pulmonary condition can be attributed to a reaction to the components of such dust when inhaled in sufficient quantities. That condition can be very difficult to distinguish clinically from other chest conditions which have no connection with exposure to dust. We were informed by counsel, and this corresponds with our own experience of such cases, that the distinguishing features for which a medical examiner looks to support a diagnosis of byssinosis are a combination of factors, in which major importance may be attributed to the date of onset of symptoms after first exposure, the day of the working week on which symptoms are first present to a significant degree (the so-called 'Monday syndrome'), the progression of symptoms to other days of the week, and the extent of remission in the evenings, at weekends and in holiday periods. In his grounding affidavit sworn in support of the second application, Mr. F. J. Irvine, partner in the [defendants'] solicitors, states: 'My experience in such litigation has revealed that an analysis of symptoms and complaints made by the plaintiff is crucial to the diagnosis of flax byssinosis.' This averment was not challenged by the plaintiff's counsel, and it accords with our own experience that in cases where the diagnosis is contested the history given by a plaintiff at different times is the subject of minute examination. The use which is made of the previous history at the trial of such cases accordingly goes beyond the mere testing of the plaintiff's credit. Itwas common case that the plaintiff made an application to the Department of Health and Social Services for industrial disablement benefit. In order to do so she would have had to complete Form B.l.100(Pn), setting out certain personal details and her working history. The normal procedure then was that the Department would send Form B.l.77 (FB) to the [defendants] for completion and return, to give the Department verification of the [plaintiff's] periods of employment with the [defendants] and the work which she did in that employment. The plaintiff was examined by the pneumoconiosis medical board, consisting of two respiratory physicians, who carried out a clinical examination and took a history from her. Their practice after concluding their examination and forming their opinion is to complete Form B.l. 180(B), of which a sample from another case was put in evidence. The section containing the history contains the following instruction to the examiner: 'The statement should record, as nearly as possible in the claimant's own words, what he has to say about his present illness and how it developed and should be read to him for agreement and signature below.' There appears a space for the claimant's signature at the bottom of the section of the form. The members of the board set out their decision on the diagnosis of byssinosis, and add in the next section a statement of findings 'on all questions of fact material to the decision on diagnosis.' A claimant whose claim has been refused by the board has the right of appeal to the medical appeal tribunal composed of two respiratory physicians and a lawyer as chairman. These physicians examine the claimant again and consider the material contained in Form B.l.180(B) completed by the board, together with any material submitted on behalf of the claimant, which may include a medical report or medical reports obtained to support the claim. Their practice is to take a fresh history from the claimant and record it. The tribunal then comes to a conclusion, and records it on Form B.l.255(C). This form, a sample of which was produced in evidence, contains the tribunal's findings and conclusion in some detail. The sample before us contains an extract from a medical report obtained from a respiratory physician and submitted on the claimant's behalf. In some cases that report may be one which the claimant's solicitor has obtained for the purpose of the claim brought against the employer. Mr. Kerr Q.C. for the [defendants] conceded that if the tribunal's decision on Form B.l.255(C) is to be discovered some editing would need to be done in order to remove any extracts from such a report, and possibly also discussion of its contents in the decision. He submitted, however, that this would not in practice be difficult to do."
The plaintiff's solicitors had obtained copies of these forms from the Department of Health and Social Services and the defendants made an application under R.S.C.(N.I), Ord. 24, r.5 seeking their discovery. This was resisted on the ground of legal professional privilege and the Court of Appeal, affirming the judge (Kelly J.), upheld the claim and refused to order discovery. No appeal is taken to this House against that decision.
This appeal is concerned with a summons brought under section 32(1) of the Administration of Justice Act 1970 for production of the originals of these documents by the Department of Health and Social Services. The defendants' application for such an order which was opposed by the plaintiff although not by the Department had been refused both by the master and the judge (O'Donnell L.J.). In refusing the order, the judge had given his reasons orally but no full record of them exists. There were some slight differences of recollection between counsel for the parties before your Lordships as to precisely what the judge had said. It seems clear, however, that he refused the order by an exercise of his discretion in accordance with the views expressed by himself (O'Donnell J.) inMcClelland v. Clyde Fuel Systems Ltd. [1973] N.I. 66 [1973] N.I. 66; N.I.J.B., February 1973. Counsel for the party applying for the order in that case had argued that section 32 of the Act of 1970 had made no difference to the law in Northern Ireland and that the principles on which the discretion of the court should be exercised should be the same as those previously applied. The learned judge, dealing with this matter, said (N.I.J.B., P. 6):
"Although I consider that the Act of 1970 did intend to make a change in the existing law, I consider that in exercising its discretion a court should have regard to the earlier decisions dealing with the production of medical records and notes."
It appears from these earlier decisions that the power to make an order which had the effect of securing production of such documents was regarded as closely circumscribed and a very strong case had to be made out that it was impossible or impracticable for the party seeking the order to conduct his case without seeing the documents. Accordingly it was a test on these lines that the judge applied in considering whether he should exercise his discretion to make an order in the present case.
Before the passing of the Act of 1970 a party who wished to have access to medical records was obliged to make an appliction to the court to stay further proceedings in the action under section 27 of the Supreme Court of Judicature Act (Ireland) 1877 until the other party made the records available. The medical records would normally not be in the custody of that other party to the action but this was the only method available to force that party to give consent for the production of these records to the party applying for the stay....
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