In Ladislav Kunzo v Kepak Longford Unlimited Company,  IEHC 180, the High Court accepted the defendant’s argument that an accident investigation report form was privileged because its dominant purpose was to allow the defendant seek legal advice and assess its exposure regarding any ensuing litigation. The Court gave credence to the defendant’s submission that most workplace injuries lead to legal claims. Therefore, even though proceedings had not been intimated or initiated when the report was completed, it was prudent and reasonable for the defendant to undertake a detailed investigation and prepare the report in anticipation of litigation.
The plaintiff sustained an injury to his back on 14 September 2016 while working at the defendant’s meat processing plant. Subsequently the plaintiff engaged solicitors, a letter of claim was sent on 19 October 2016 and proceedings issued on 4 August 2017. The defendant filed a full defence and on 18 November 2019 an Order for discovery was made directing the defendant to disclose an accident report form.
The question before the High Court was whether the defendant was entitled to claim litigation privilege over an accident investigation report form and associated documentation to include witness statements, photographs, and a medical report by the defendant’s doctor.
The plaintiff argued that the accident report form was dated 14 October 2016, which meant it was prepared shortly after the incident and that there was no basis to a claim of legal professional privilege as the letter of claim was sent on 19 October 2016. The plaintiff also argued the accident report form came into existence to comply with the defendant’s reporting obligations under health and safety legislation.
In asserting a claim of legal privilege, the defendant argued that a very high proportion of workplace accidents give rise to litigation. The defendant’s head of health and safety said that the report was prepared by the defendant to properly defend itself and to assess any possible exposure to legal consequences in any ensuing litigation. The defendant claimed that the report would be used for the purpose of a meeting with the defendant’s solicitors to assess any potential liability, steps necessary to defend itself and the likely cost of any claim. The defendant argued that the dominant purpose of the report was to enable legal advice to be obtained, while accepting it had an ancillary purpose in relation to health and safety reviews within the company.
Decision of the High Court
The Court stated that for litigation privilege to arise, it is neither necessary that proceedings are in being before the document comes into existence nor do proceedings need to be formally threatened. It is therefore sufficient that the document was produced because proceedings were reasonably anticipated. The Court accepted the defendant’s argument that a claim will follow in most, if not all, cases where an employee suffers an injury at work. The Court said it was therefore reasonable and prudent for the defendant to carry out a thorough investigation before proceedings are intimated or threatened.
The Court was satisfied that the report form was not created for submission to the Health and Safety Authority but was in fact to report a comprehensive investigation into the circumstances of the accident, in preparation for anticipated litigation. The Court found that the use of the document for periodic health and safety reviews was subsidiary.
The Court further decided that the plaintiff would not be entitled to the documents accompanying the report, which it felt would also be privileged, albeit that they were not encompassed by the Court Order for discovery.
The High Court in this case accepted that if a defendant’s dominant purpose for creating an accident investigation report form was to allow the defendant seek legal advice and assess its exposure regarding any ensuing litigation, litigation privilege applies. This is despite the report form being used for the ancillary purpose of health and safety reviews. For further information or to discuss, please contact Caitriona O'Brien email@example.com or any member of our Healthcare team.Back to Full News
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About the Author
Caitriona is an associate solicitor with the Healthcare team at Hayes solicitors. She specialises in medical and dental malpractice actions and acts on behalf of public hospitals and private clinicians.