Introduction to a 1997 Chemical
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
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
KRISTAN BOWERS PHILLIPS Plaintiff
by his next friend PHILIP G. HIGGINS
INITIAL ENVIRONMENTAL SERVICES LIMITED 1st
(formerly known as EXCLUSIVE ENVIRONMENTAL
THE HONG KONG PHILHARMONIC SOCIETY LIMITED 2nd
THE HONG KONG ACADEMY FOR PERFORMING ARTS 3rd
CIBA-GEIGY (HONG KONG) LIMITED 4th
WONG CHING HO COMPANY LIMITED 5th
(As consolidated by Orders of
10th January, 1995 and 15th May, 1995)
- 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.
- (instructed by Drivers) appeared on behalf of the
- Mr. Geoffrey Ma, SC, (until 21st April 1997) and Mr.
- (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
- 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.
- 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
- 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.
- 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.
- 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.
- 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
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
- 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
Lost earnings in the U.S.A. past and future total
US$15,500.00. Tax may be payable on some of them.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.