THE HIGH COURT
2000 No. 9075p
BETWEEN
JACQUELINE DOWNEY (A PERSON OF UNSOUND MIND NOT SO FOUND) SUING BY HER MOTHER AND NEXT FRIEND MARY DOWNEY
PLAINTIFF
AND
THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN, THE SOUTHERN HEALTH BOARD IRELAND AND THE ATTORNEY GENERAL 
RESPONDENTS 
Decision delivered by the Master of the High Court on 14th day of May 2002.  

	This is an application for discovery by the third named defendant.  Last January I dealt with the plaintiff’s application for discovery against the other defendants.  
	The case against the defendants, taken on behalf of this profoundly retarded child now aged 32 years, is for damages for perceived inadequacies in her education by the State and likewise in the matter of health care / therapies etc.  I use the words “profoundly retarded” above, as opposed to “autistic”, on the strength of Professor Fitzgerald’s assessment of 12th February 2001 but note that Mr. Alan Willis, Educational Psychologist, disputes the diagnosis (18th June 2001).  In his earlier report, Mr. Willis states his view that “had she been diagnosed at an early age and then been given appropriate educational intervention then she would (now ? - March 2000) 
(1)	be toilet trained
(2)	be able to imitate actions and sounds, if not words 
(3)	be able to dress and undress herself 
(4)	be able to feed herself
(5)	be able to communicate her basic needs either verbally or non verbally 
(6)	show significant reduced obsessive and repetitive behaviour patterns.”

	In this case, the plaintiff is seeking damages to compensate her (not her parents) for the fact that she would have been able as above described, as opposed to not being able.  The Court will be asked, in effect, to assess damages, in monetary terms, for the absence of these skills.  It is not being asked to measure damages for the difference between her present state and the state of a normal healthy 30 year old: on the plaintiff’s case she could have expected only a modest improvement in her lifestyle had she been educated by the defendants - possibly so modest as to be practically of little use to her, although clearly for her parents and carers, a world of a difference.  It is, however, the plaintiff’s claim for damages, not her parents’ claim.
	I have highlighted the above matters so that the litigants will fully appreciate the nature of the litigation, and the likely outcome, in terms of quantum, if the plaintiff proves her case.  
	In ruling on the plaintiff’s application for discovery by the first second and fourth defendants I expressed the view that the case would largely be concerned with establishing the extent of the duty of care owed to the plaintiff and that the factual issue to be determined would be the plaintiff’s condition at the material times.  Having adjudicated on that fact, it is possible that the Court would be asked to determine whether or not the appropriate care was afforded, but it seems more likely on the materials before me that the defendants’ case would stand or fall on the correctness of their assessment of the child’s condition.  Put simply, if the Court holds that she was not properly diagnosed, it seems unlikely that it can then be asked to rule that, its conclusion on diagnosis notwithstanding, the education and health case afforded was nevertheless “appropriate” when such care had been based on an incorrect diagnosis.  However, documentation concerning education and health care may still be discoverable as probative of the facts upon which the competing diagnoses are based, rather than in the context of any dispute as to the adequacy of the care.  
	I am doing no injustice to the plaintiff in refusing to order discovery of documents concerning funding of care services, or training/assessment of care personnel : these are not material facts in the case concerning diagnosis or adequacy of care, in the sense that the constituents of the care actually provided will prove, or not, the plaintiff’s case when the Court has the benefit of expert assessment thereof.  If the actual care provided was not adequate, so objectively assessed, the plaintiff does not need to prove any further fact regarding funding or training.  On the other hand, if the care was adequate, there is no basis for a “stand alone” claim for damages on the strength of lack of funding or training : such a case is not stateable if, in fact, the care provided was acceptable.  
	Following the Supreme Court ruling in Synotts case I will limit discovery to the period prior to the plaintiff’s eighteenth birthday.
	Accordingly, I will order discovery of the third defendant’s documents in the categories (a) (b) (c) (d) (h) (i) (j) in the Plaintiff’s notice of motion, reworded as follows:
(a) 	All expert reports or assessments of the plaintiff available to the third defendant during the plaintiff’s minority.
(b)	The files of the third named defendant concerning the plaintiff during her minority.
(c)	All correspondence during the said period etc ... (as in notice of motion)
(d)	All School, Health or Care facility files concerning the plaintiff and compiled during her minority, which has been copied to the third named defendant.
(h)	(As drafted ... but limited to the period of the plaintiff’s minority)
(i)	Ditto.
(j)	All IEPs and ICPs prepared for the plaintiff prior to her eighteenth birthday.