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GAZETTE
SEPTEMBER 1979
RECENT IRISH CASES
DISCOVERY OF DOCUMENTS
What is a "document"? — 0 . 31
r. 12 of Superior Court rules in-
cludes X-Ray plates and photo-
graphs.
The Plaintiff sought damages for per-
sonal injuries claimed to have been
sustained in a motor accident on 1
January 1973. The injuries immedi-
ately after the accident appeared to
be trivial but on 11 August 1973 the
Plaintiff had some kind of fit or
seizure and was now permantly
paralysed. The Defendant's medical
advisors wished to inspect the X-Ray
photographs of the Plaintiff taken
immediately after the accident to
establish that the fit or seizure and
the paralysis were not caused by the
accident on 1 January 1973. The
Plaintiffs solicitors refused to allow
this inspection and on application for
Discovery was brought before, and
refused by the Master of the High
Court. The Defendant appealed to
the High Court which affirmed the
refusal of the Master and the
Defendant appealed to the Supreme
Court.
Held
(per Henchy J.), allow-
ing the appeal, that the aim of
the relevant Rules of the Superior
Courts (Order 31) was to enable a
party to learn, in advance of the trial,
of the existence of the documents on
which his opponent might rely at the
trial; to give the party who had got
discovery an opportunity of seeking
production for inspection of any of
those documents, and to debar the
party who had made discovery from
introducing in evidence at the trial
such documents as he ought to have
discovered. "The word 'document'
therefore, should be construed so that
it will comprehend the full range of
things which could become part of
the Court file at the end of the
hearing of the proceedings in
question. In that sense, the word
would clearly included X-Ray films."
Per Kenny J.: "The (High Court)
Judge and the Master followed
what we are told has been the
practice in the High Court since
1954. This practice was based on
the decision of McLoughlin J. in
Lynch v. Fleming
(1953/54 Ir. Jur.
Rep. 45) where discovery of X-Ray
plates or photographs was refused
because they did not appear to be
"Capable of being interpreted as the
thoughts or ideas of any person" (per
McLoughlin J.). "In my opinion that
decision was wrong and should not
be followed. Etymologically the word
'document' is derived from the latin
word 'documentum' which in turns
comes from the verb 'docere'. It is,
therefore, something which teaches
or gives information or a lesson or an
example for instruction. The main
characteristic of a document is then
that it is something which gives
information. An X-Ray plate or
photograph gives information and so
is a document and the Defendant is
entitled to discovery of it."
Lorraine McCarthy v. Liam O'Flynn
— Supreme Court (per Henchy and
Kenny JJ., with O'Higgins CJ.) —
19 June 1979 — Unreported.
FAMILY LAW — ADOPTION
Whether consent of natural moter to
adoption of her child should be dis-
pensed with pursuant to Section 3 of
Adoption Act 1974.
The Plaintiff was an unmarried
mother whose child was born in June
1977. The child was kept in a chil-
dren's home and the Plaintiff visited
her regularly until late August 1977.
From the beginning of September
1977 until the beginning of Decem-
ber 1977 the Plaintiff ceased to visit
her child and had no contact what-
ever with her and deliberately
avoided having any contact with the
social worker from the children's
home then involved. Finally, on 1
December 1977, the Plaintiff met
with a social worker from the Eastern
Health Board (into whose hands the
mother had been placed) and the
Plaintiff agreed to place the child for
adoption and signed a form to this
effect. The child was placed for adop-
tion with prospective parents on 19
December 1977.
In February 1978, the Plaintiff,
having had second thoughts about
her decision, refused to sign the final
consent to adoption, and in April
1978 the child was returned to her
custody. Shortly afterwards, the
Plaintiff found that she could not
cope with the child and brought her
to a nursery and contacted the social
worker from the Health Board. After
some discussions, the Plaintiff in-
formed the social worker that she had
finally decided to place the child for
adoption on condition that she was
returned to the same prospective
parents for adoption. On 2 May
1978 the child was taken from the
nursery, the Plaintiff signed the final
consent to adoption, and the child
was delivered to the prospective
adoptive parents. Soon afterwards
the Plaintiff contacted the social
worker from the Health Board say-
ing that she regretted her decision,
and on 18 May 1978 she wrote to
the Adoption Board withdrawing her
consent.
The prospective adoptive parents
refused to return the child to the
Plaintiff and the Plaintiff then in-
stituted proceedings against the
Health Board, through whose agency
the child had purported to be placed
for adoption, for return of custody of
the child to her pursuant to the
Guardianship of Infants Act 1964.
The prospective adoptive parents,
who had actual custody of the child,
were added as notice parties and they
applied to the Court for an Order
under Section 3 of the Adoption Act
1974 dispensing with the consent of
the Plaintiff to adoption and placing
the child in their custody pending the
decision of the Adoption Board on
their application to adopt the child.
Finlay P. following the decision of
the Supreme Court in
G. v. An Bord
Uchtála and Ors.
(High Court per
Finlay P., 19/9/78; Supreme Court,
19/12/78, both unreported) found
that he had to decide the following
issues, namely, whether Plaintiff had
agreed to place her child for adop-
tion within the meaning of Section 3
of the Adoption Act 1974 so as to
bring into operation the provisions of
the said Section 3, and, if so, whether
it was in the best interest of the child
that she should now remain in the
custody of the prospective adoptive
parents for some time and that the
Plaintiff's consent should be dis-
pensed with so as to enable the
Adoption
Board to make an
Adoption Order if they should see fit.
In addition, Finlay P. felt that, in
addition to the above matters, he
would also have to decide the
following issues under Sections 14