Army blames Covid-19 for continued failure to give affidavit to former Air Corps mechanic
The army cannot give a signed affidavit to the legal team of a former Air Corps mechanic because of Covid-19 physical distancing rules.
This is despite the fact that Defence Forces lawyers were last ordered to provide the affidavit more than eight months before the first case of the virus was found in Ireland.
A Supreme Court order was made on July 15, 2019 in favour of Gavin Tobin, who is suing the State over his alleged exposure to deadly chemicals on dates during the 1990s.
The army was first ordered by the High Court to provide the information to Mr Tobin’s legal team in 2016.
The information requested is part of the so-called “discovery process” in a court action, where legal teams seek to discover documents they need to pursue their action.
Mr Tobin also alleges he was, on one occasion during the 1990s, subject to “tubbing” - doused with chemicals by other Air Corps personnel.
He is among several former mechanics who are suing over alleged exposure to dangerous chemicals and solvents during their employment.
The army appealed the 2016 High Court order and won in the Court of Appeal but the appeal decision was successfully overturned unanimously in the Supreme Court last year.
“The decision by the army to use Covid-19 as an excuse for not providing information to my legal team is just the latest in a long line of deliberate delays by the State against me,” Mr Tobin said.
“They have been throwing everything at me since I first started my legal action in 2014.”
Minister of State at the Department of Defence Paul Kehoe was asked for a comment.
A spokesperson said: “Responsibility for personal injuries claims taken against the Minister for Defence is delegated to the State Claims Agency.
“It would be inappropriate for the Minister to comment on individual cases.”
A solicitor acting on behalf of the army has emailed Mr Tobin’s team, saying: “The current ongoing Covid-19 pandemic means our clients are not in a position to advance the preparation of discovery in the usual way, given government directions.
“Clearly the current to Covid-19 situation gives rise to a number of unique considerations.
“We are not in a position at present to provide physical documents to counsel in the context of preparation of (an) affidavit of discovery. It is not presently possible for an affidavit to be sworn.
“Significant work has been undertaken in collating documents for review for discovery and we are endeavouring to advance that, in so far as possible, remotely. However preparation of an affidavit of discovery in the usual way is not possible at present.”
They add: “In light of this and having regard to the Covid-19 pandemic and the need to minimise the exposure of persons to unnecessary risk, we would be grateful for a stay of the order for discovery until such time as the current public health crisis has come to an end.
“In the current unique circumstances, further time for the provision of discovery is required.”
As the Supreme Court noted last July, Mr. Tobin has attributed personal injuries he has allegedly suffered to the "negligence, nuisance, breach of statutory duty and breach of contract of the State by reason of what is said to be its failure to provide Mr. Tobin with, amongst other things, a safe place of work".
