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Introduction to a 1997 Chemical Injury Judgment

The judgement below should be used by anyone seeking compensation for chemical trauma, to convince their legal representatives that chemical injury is as serious as any other type of trauma, if not more so, since toxicity symptoms can sometimes occur long after the exposure incident owing to delayed effects of poisoning.

Experience shows that there is a lack of knowledge about toxic chemical injury in legal and medical circles, which frequently leads to a dismissive attitude by lawyers and doctors when they are approached by patients who have suffered or are suffering the effects of poisonous exposures. Patients should not waste their time and energies trying to educate them, but should go instead to one of the medics or lawyers who is familiar with such problems. The Australian Chemical Trauma Alliance is a referral service through which to locate appropriate legal and medical help.

Do not be discouraged by anyone who tries to sneer at you or ridicule your claim (in order to undermine your self-confidence and protect their own interests). Justice has been served on more than one occasion, as evidenced by the accompanying judgement. It is a sad fact that justice does not come easily for chemical victims, but that is all the more reason why it should be doggedly pursued. The support groups who fought for recognition of a variety of medical conditions have had to overcome a series of obstacles placed in their path. Chemical victims are the latest contenders for such recognition, and their battle is even harder because multinational chemical industries are involved. But remember - they may have the resources, but we have the numbers!


SYNOPSIS OF JUDGEMENT FROM HONG KONG

FOR YOUR INFORMATION

This clarifies the level of damages that was awarded to the Plaintiff

1996, P.I. No. 580
(formerly 1990, No.A3978 1990, No.A4009 1994, No.A8122)

IN THE HIGH COURT OF HONG KONG
COURT OF FIRST INSTANCE
PERSONAL INJURIES

BETWEEN

KRISTAN BOWERS PHILLIPS          Plaintiff
by his next friend PHILIP G. HIGGINS

and

INITIAL ENVIRONMENTAL SERVICES LIMITED          1st Defendant
(formerly known as EXCLUSIVE ENVIRONMENTAL SERVICES LIMITED)

THE HONG KONG PHILHARMONIC SOCIETY LIMITED          2nd Defendant

THE HONG KONG ACADEMY FOR PERFORMING ARTS          3rd Defendant

CIBA-GEIGY (HONG KONG) LIMITED          4th Defendant

WONG CHING HO COMPANY LIMITED          5th Defendant

(As consolidated by Orders of 10th January, 1995 and 15th May, 1995)
Coram:
The Hon, Mr. Justice Seagroatt in Court
Date of Hearing:
6th January, 1997 until 19th June, 1997
Date of Handing Down of Judgment and Delivery of Synopsis of Judgment:
31st July, 1997
Mr. Daniel Brennan, QC, Mr. Ruy Barretto and Mr. Raymond Leung
(instructed by Drivers) appeared on behalf of the Plaintiff.
Mr. Geoffrey Ma, SC, (until 21st April 1997) and Mr. Stephen Franklin
(instructed by Johnson Stokes & Masters) appeared on behalf of the First Defendant; (subsequently Mr. Franklin was instructed by Fred Kan & Co.)
Mr. Ronny Wong, SC, and Ms. Susanna Leong
(instructed by TS Tong & Co.) appeared on behalf of the Second Defendant.
Mr. Ronny Tong, SC, and Mr. Peter Ng
(instructed by WK To & Co.) appeared on behalf of the Third Defendant.
Mr. Denis Chang, SC, and Mr. Ramesh Sujanani
(instructed by Simmons & Simmons) appeared on behalf of the Fourth Defendant.
Mr. Tony Poon
(instructed by KC Ho & Fong) appeared on behalf of the Fifth Defendant.

SYNOPSIS OF JUDGMENT

  1. On the 21st June 1987 the Plaintiff who is now 47 years of age inhaled some pesticide (diazinon) which was being sprayed in the Hong Kong Academy of Performing Arts whilst the Hong Kong Philharmonic Orchestra, of which the Plaintiff was the principal timpanist, was rehearsing.
  2. As a consequence he suffered physical injury and was taken to hospital. He also developed a psychiatric injury which was also caused by the inhalation of pesticide and physical injury. These injuries were foreseeable.
  3. The injuries suffered by him were caused by the negligence and breach of duty of all the Defendants to a greater or lesser extent. He is entitled to judgment against all of them.
  4. The Plaintiff recovered to some extent from the physical or organic injury but is left with a small degree of permanent organic injury. The psychiatric element of his injury gradually worsened. He has not and will probably not make a full recovery from that.
  5. He lost his employment as a principal timpanist and has not been able to obtain employment in any capacity since. He is virtually unemployable. As a direct consequence his business which had been in existence for only a few years collapsed. He was unable to pursue other fee earning activities and develop patents for his inventions which would have earned him income. He had received substantial medical and quasi-medical care and investigation over the intervening years.
  6. General Damages for pain and suffering and loss of amenity of life (including the loss of an artistic career but excluding the financial loss involved) are $750,000.00.

    The loss of income as Principal timpanist with the H.K.P.O. is $2,958,478.00 gross for past loss. For future loss, applying a multiplier of 10 years, the figure is HK$6,532,754.00 gross.

    For loss of his business which would have become profitable and would have been developed by him and his wife there is an award of $1,000,000.00. This is assessed on the basis of the loss of an opportunity as it is not possible to calculate the actual future profit which would have been achieved.

    A similar approach has been adopted in respect of his timpani mallet patents which would have produced some income for him as there were markets available. The degree of competition within those markets is also incapable of precise evaluation. There is an award of $750,000.00.

  7. There is a number of items of special damage (past losses and expenditure) which to date amount to $3,885,268.00 some of these are gross figures from which tax may have to be deducted.

    There are also additional items of future loss and expenditure which are itemised but in total amount to approximately $3,601,421.00.

    Lost earnings in the U.S.A. past and future total US$15,500.00. Tax may be payable on some of them.

  8. The fourth Defendant - the international chemical company Ciba-Geigy (Ciba) - were negligent and in breach of duty of care in importing the chemical, an organo-phosphate (diazinon) which it had formerly developed, manufactured, and then licensed for manufacture, and distributed for sale without proper labelling to warn of the dangers involved in its use. It knew of unsafe practices in the operations in which the toxic substance was used. It failed to have proper regard for those at risk in its use particularly pest control operators and members of the public. When it instituted some safety policy it was too little and too late. It was more interested in the market-place.
  9. The fifth Defendant - Wong Ching Ho (WCH.) - although knowing of the risks involved in the use of diazinon, failed to apply adequate labelling, and to transmit up-to-date reliable information and literature. It relied too much on what it thought was the expertise and experience of the Pest Control Companies. It too was more interested in establishing exclusive rights to supply and in the market-place.
  10. The first Defendant - Exclusive Environmental Services (Exclusive) were pest control operators who had a contract to treat the H.K.A.P.A. They had no proper system in relation to the carrying out of the treatment. Instructions as to risks and safety were not translated into Chinese. They were neglectful of their operatives own safety and of the public who might be in the vicinity of such work. They had available certain information but did not act upon it.
  11. The third Defendant - The Hong Kong Academy of Performing Arts ('APA') - failed to realise that the H.K.P.O. had booked the rehearsal hall at the same time as Exclusive were due to carry out pest control treatment. They had some knowledge of the risk involved. They allowed the rehearsal to proceed. They failed to warn the H.K.P.O. members. They failed to devise a safe system for the pest control operation to be carried out. They had no emergency system or equipment. Their management system was deficient. As occupiers they failed to take reasonable care for invitees.
  12. The second Defendant - The Hong Kong Philharmonic Orchestra (H.K.P.O.) - owed to its employees a duty of care, and a duty to provide a safe place of work. They had no effective management system in existence at the A.P.A. when the rehearsal was due to take place. They knew the A.P.A. had no venue staff. They allowed a rehearsal to proceed when in the circumstances they ought to have known it might not be safe.
  13. These five defendants seek contribution or indemnity against each other. This does not affect the entitlement of the Plaintiff to seek satisfaction of his judgment against any one or more of them. Ciba bears the greatest responsibility. I assess it at 35 per cent. WCH and Exclusive bear equal responsibility as between themselves. I assess it at 20 per cent each. The A.P.A. is to bear 15 per cent responsibility; The H.K.P.O., 10 per cent responsibility.
  14. The judgment for the Plaintiff is in the total of the sums set out, with interest at the appropriate rate on the sums which bear interest, together with an order for costs on a Common Fund basis. The Plaintiff is legally aided and under a disability. This has been an expensive civil action.
  15. I have prepared and delivered this synopsis as an aid and convenience because the judgment itself is in excess of 200 pages and I believe that any interested party and the public is entitled to know the essential findings at the earliest stage. It is not however a substitute for the judgment itself and in the unfortunate event of there being any arguable conflict or inconsistency between this synopsis and the judgment, it is the judgment which prevails. The course I have adopted is not to be regarded as a precedent.

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