HONG KONG: High Court slams Ciba-Geigy over pesticide

Hong Kong's High Court has found Ciba-Geigy (Hong Kong) Ltd (now Novartis) "failed in all respects" by not meeting its responsibilities to ensure proper labelling, dissemination, instruction and overall stewardship of a pesticide it originally manufactured and now imports.

Justice Conrad Seagroatt made the finding – and ordered the company to pay 35% of a total damages bill of HKD17.8 million – in a case involving the exposure of a professional musician to the organophosphate pesticide Diazinon.

The man suffered neurological and psychiatric problems as a result of his exposure to the chemical, which was being sprayed in an area of the Hong Kong Academy of Performing Arts, while the musician was rehearsing. The judge noted that manufacturers and distributors of chemicals which are “inherently toxic” and known to be injurious have a clear duty of care to warn all to whom they supply of the nature of the danger, what steps should be taken to avoid that danger, how the material should be used most efficiently and safely, and what steps must be taken in the event of any accidents or emergency.

Examining the history of the sale and use of Diazinon, he also noted that until 1986, Ciba-Geigy had no policy or plan as to safety in the labelling of the imported Diazinon. “Ciba-Geigy was largely concerned with the market-place and the opportunities for its expansion on the mainland.” He also noted the relevant legislation in force “even after the late 1970s” was not comprehensive enough, nor was it strict enough given the hazards involved.

But this was no excuse for failing to place more emphasis on safety, he said. Justice Seagroatt also found the retailer of the pesticide, the firm doing the spraying, the Academy of Performing Arts, and the Hong Kong Philharmonic Society to be jointly responsible for the damages suffered by the man.

In a scathing postscript to his decision, the judge noted some of the defendants had argued that what they did “was in accordance with the accepted practice in the trade or business or employment scene in Hong Kong”. But, he said, “it is not a defence to say that it is the practice in this part of the world and has been so for years. The sooner such a notion is laid to rest, and the onus upon manufacturers, suppliers, users and employers is properly recognised and enforced, the better.”

The criticisms of Justice Seagroatt were not solely reserved for the lack of care provided by Ciba-Geigy with regard to the use of Diazinon in Hong Kong. The judge also criticised Ciba-Geigy and two of the other defendants for the length of time taken to hear the case. “The defendants were unwilling to agree any matter in the relevant chain of events in causation, with a few exceptions, even though the evidence was overwhelming,” he stated. He also noted that in the 15 days of cross-examination of the plaintiff “there was what seemed like a trawl through each and every conceivable aspect of his life as if there was in existence a roving commission of inquiry.”

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