KRISTAN BOWERS PHILLIPS v. INITIAL ENVIRONMENTAL SERVICES LTD AND OTHERS

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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JUDGMENT

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INDEX

I INTRODUCTION

Background

1. Ten years ago, in the summer of 1987, this region was beginning to experience an accelerated cultural expansion. True the Cultural Centre itself was not yet built nor had architectural talent yet found its imaginative outlets in Pacific Place, and the Hong Kong Park; and the Lippo Centre was not yet that in name. The august, marbled premises of the old Hong Kong and Shanghai Bank were long-gone (in Hong Kong terms) but the dramatic obelisk that is the Bank of China with its prescient finger of light dominated the landscape.

2. The H.K. Academy of Performing Arts was well established and the Hong Kong Philharmonic Orchestra in its 12th professional season performed at the City Hall as it had done for many years. Kenneth Schermerhorn was its Music Director and Yip Wing-Sie had recently become Resident Conductor. The further expansion, development and flourishing of its reputation under David Anderton as Musical Director and Yip Wing-Sie as Resident Conductor, was only a short time away.

3. Hong Kong's atmospheric conditions and the perpetual problem of keeping its buildings free from pests such as fleas and cockroaches required regular treatment to ensure hygienic and tolerable conditions for those who worked and enjoyed themselves. Scientific advance produced more efficient methods of achieving this end but, like all development, strict controls and care were necessary in order to ensure the benefits were not outweighed by harm to the community. If not uncaring, Hong Kong was, like some other societies, sometimes careless in pursuit of the short-term goal. The fumigation of residential and commercial buildings called for strict control to protect those who carried out such work as well as those for whose benefit the exercise was being conducted, because it was well-known that substances used could be harmful. The buildings treated included concert halls, auditoria and other places to which the public and artists had access. Those at risk of harm from such operations which were conducted without proper planning, care, control and concern, constituted a very wide sector indeed.

The Plaintiff

4. In 1980, a 30 year old American musician came to Hong Kong and joined the H.K.P.O. as timpanist. He had graduated in music and fine arts at Carnegie Mellon University and then trained at the Julliard School in New York City for 3 years from which he emerged as Master of Music. Throughout his periods of study and training he performed professionally in a variety of settings in America and Europe in timpani and percussion. His evidence revealed to the layman the high degree of training, expertise and talent required to perform as a timpanist of repute. It is clearly a musical art form in its own right, in both classical and modern setting. His mentor and tutor was the world renowned exponent of modern timpany, Saul Goodman, who had spent the best part of his musical career with the New York Philharmonic Orchestra.

5. Before joining the H.K.P.O. he had performed with a number of Orchestras including two in Puerto Rico between 1978 and 1980. By 1987, he was the principal timpanist. He had been with the H.K.P.O. almost seven years.

6. In common with many or most musicians, principal and otherwise, he deployed his musical ability and knowledge in other areas to supplement his income from the orchestra, which in those days seemed particularly modest - perhaps it has not changed much - and to consolidate his musical career.

7. In 1987 he had formed an ensemble of musicians which was to play at essentially private functions - he was to play in the 5 - piece ensemble - known as "A Touch of Class" On a wider and larger scale were the Young Audience concerts behind which was the principle of bringing orchestral music to the youth of Hong Kong as part of their wider education. He was involved in musical recordings for commercial advertising and for programme background on radio and television.

8. Since 1980 he had been invited to attend the Grand Teton Music Festival held every summer in Wyoming, U.S.A. He spoke of the significance of this event in that it attracted concert masters from a wide range of orchestras and clearly was a glittering gathering of musical talent not so much for financial benefit but for the sheer joy of creating a music festival and being "primus inter pares." With sincerity and feeling he spoke of his pride at being invited on a regular basis as guest timpanist.

9. Private tuition is often the staple of professional orchestral musicians, whatever their level within the orchestra. The Plaintiff was no exception. By the summer of 1987 he had ten pupils.

10. Potentially the most significant aspect of his work outside the H.K.P.O. was a business registered in 1984 as Phillips Asia Percussion Enterprise, in which his wife was the administrative core. It was designed to exploit and develop the market in the Far East for western musical instruments, from individual requirements to those of schools and professional musical groupings. He obtained agreements from western manufacturers to promote and market their instruments in Hong Kong and China, and in time the two-way trade in instruments developed as he supplied gongs from Wuhan to the West. The way in which and the extent to which that business had developed by the summer of 1987 will be examined in due course.

11. The final area in which he had applied utilised and developed his musical experience and skill lay in the patents for mallets for the timpani which he obtained. Again he was able to explain and demonstrate this potential development and its benefit to the modern timpanist, and also the other feature - robotics - which would enable the timpanist to tune his instrument as he played: the harnessing of modern technical know - how to artistic talent with the purpose of enhancing it.

12. These are all areas to which I shall return in due course but his exposition of them, and a commonsense assessment of the content and style of his evidence revealed a dedicated, professional musician who had consistently thought of improving the instruments and the means of obtaining the best harmony from them in the most efficient way; and worked to extend his talent and experience in the most productive way, musically and financially.

II Pest Control in H.K. in the 1980's.

13. In the 1970's and to some extent in the 1980's, but significantly less so, pest control was part and parcel of the agricultural scene. As that area of activity in the New Territories diminished in the 1970's and the early 1980's, the market for pest control moved into the urban area with commercial, industrial and residential premises expanding at a vast rate and requiring the services of pest control operators.

14. Organo-phosphates were used to control pests. They are toxic to man to a greater or lesser extent. Experience and research has broadened the knowledge of such chemicals and required more and more stringent control and precautions.

15. Such pesticides in order to achieve their purpose, are applied either for residual effect by direct application - leaving a residual deposit; or for space, non-residual effect, by creating a mist or a fog to deal with flying insects. The former purpose is achieved by spraying directly on to the surfaces to be treated usually floor edges, cracks, and crevices; the latter by equipment which produces droplets of varying sizes thereby creating a mist or fog which floats for a variable period of time, dispersing within the treated area or escaping into adjacent areas.

16. Diazinon, which has a number of market names including Basudin and Neocidal, is one of that class of insecticides with a current category by the World Health Organisation of Class II, "moderately hazardous". It is considered suitable only as a residual insecticide and therefore to be sprayed directly onto surfaces. It is unsuitable for misting or fogging viz. space application, because of the risk of contamination of non-target areas.

17. Diazinon was developed by J.R. Geigy of Basle in the 1950's. It was patented by him or Ciba-Geigy who acquired his business. In time it was manufactured under licence for Ciba-Geigy by other businesses including Nippon Kayaku in Japan from whom Ciba-Geigy imported it into Hong Kong. It is clear that the area of use was essentially agricultural. It was developed specifically for that.

18. It featured in the Rentokil Technical Handbook of the early to mid - 1960's. The contents of that handbook indicate the general level of knowledge of diazinon at that time -- twenty years before the incident involving the Plaintiff -- and the precautions to be taken. The company's code of practice commenced with a bold assertion which should be an unequivocal statement on any and every label for such products. As Mr. Peter Meadows testified on behalf of the Plaintiff, drawing upon over 20 years of professional experience in the pest control industry, -- "All formulations of pesticides may be fatal if swallowed, inhaled or absorbed through the skin in quantity. Care should be taken that familiarity does not breed contempt." The precautions included protective clothing and respirators or masks in varying circumstances, the need to ensure reasonable ventilation, particularly in confined spaces, and the proper labelling at all times of all containers in use. The simple marking of "DIA" on buckets, containing diazinon left over from one operation for use in the next, and kept on a truck or van, fell hopelessly short of the necessary standard of care in relation to its use.

19. As is the case with so many products which are inherently dangerous, chemicals developed for the benefit of mankind in areas of health or food production or industrial manufacture are naturally toxic and therefore dangerous. The strictest rules and advice need to be given and implemented in relation to their use. There are clear examples in recent history of the benefits of science being in the long-term outweighed by the harm of excessive or uncontrolled use. However careful the research and testing the benefit is inevitably short-term. Only as human lives unfold are the manifold side effects seen, and even then, in many cases, misinterpreted. However great the expertise which evaluates the research, the tests, the product and its application, it is a matter of straightforward commonsense being applied, to determine what warnings, prohibitions and strict requirements are necessary. The manufacturer and distributor of a chemical which is inherently toxic and known to be injurious has a clear duty of care to warn all to whom it supplies it 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. Such a duty is discharged by proper labelling which reflects all that information, additional literature, where necessary instruction in the form of classes or lectures, and the provision of all up-to-date information on the product concerned as experience in its use broadens and deepens human knowledge. The extent of that information and the channels by which it is disseminated must take into account the end user of the product and any person who may wittingly or unwittingly come into contact with it. In other words the manufacturer/supplier must impart to its customer all that it knows to ensure, as far as humanly possible, the product is used with no risk to any person. That obligation extends down the chain of supply to the end user.

20. In Chapter 3 of the Scientific Guide to Pest Control Operations - 3rd edition - under the heading "Pesticides" - is set out in straightforward terms the contrast between the ideal and the actual. I quote directly:

"Ideally, any pesticide would rapidly kill detrimental pests exposed to it and would be completely harmless to man, his domestic animals, wildlife and the environment. It would also be inexpensive and readily available in necessary quantities, chemically stable, non-inflammable, easily prepared and applied, non-corrosive, non-staining, and would have no undesirable odor. If such a pesticide were available, the work of the pest control specialist would be quite easy. There would be no need for him to know how to prepare and store his chemicals or how to use them safely and in a way that is not objectionable to his customers. There are no such ideal materials available, so it is necessary for the pest control specialist to know a great number of things about the pesticides he uses."

21. The rather lax attitude to labelling of products provoked the authors to put it in a highlighted perspective:

"THE LABEL

Although the exact date of this publication is not clear it had a 1976 and a 1982 Copyright identification and some or most of the material was offered in a correspondence course lasting from 1961 to 1962. Diazinon was given as one of the examples of contact poisons, it was included in the list of organophosphates, and featured in the table showing the relative toxicity of insecticide by acute oral LD50 as moderately toxic. It was the second most toxic organophosphate and ranked slightly higher that DDT.

22. This publication was included as an exhibit to a statement of evidence not adduced in this trial. I had read it at an early stage. Although it does not form part of the literature adduced by any party in the course of the trial it is in the public domain and I use it as an example of common sense and distilled wisdom available to all whose duty it was to inquire and instruct.

23. Mr. Peter Meadows, who has vast and long experience of the pesticide industry, particularly in Australia, considering the state of affairs in Hong Kong in the 1980's said:

He was aware that in this period misting pesticides was often used as a quick and easy way of disseminating residual chemicals over fairly large areas. It was quick, or appeared to be so and therefore it was economical in time and cost. Ciba-Geigy he thought, must have known of this practice. The evidence generally indicates Ciba-Geigy's knowledge of the practice. In any event they were in a position to know what it was and should take the necessary steps to find out.

24. For such a building as the APA it was inappropriate to use misting.

"It would have been impossible to treat one section of that open area without the misted material being able to move to some other section." pay 34 - p. 60-61]

It is clear from Mr. Gauchat's thinking in 1986 when he came to Hong Kong that he was aware of the shortcomings in the use of pesticides and the need to improve the safety aspects. I accept Mr. Meadows' evidence which was virtually unchallenged. In Hong Kong safety was very much a secondary consideration. The acquisition of business, the use of effective pesticides by whatever technique was conducive to saving time and expense (the two are virtually synonymous) were primary considerations.

III The Events of the 21st June 1987

25. On the 21st June 1987, the H.K.P.O. had booked the rehearsal hall at the H.K.A.P.A. It was a Sunday. The weather was no doubt typical for Hong Kong at that time of the year --- hot and humid. About 80 to 90 members of the orchestra attended. Ms. Yip Wing-Sie was to conduct the rehearsal. There had been a concert the previous night at the City Hall and the rehearsal was required because there was to be a recording session later in the week.

26. Coincidentally the A.P.A. had arranged for a pest control operation to be carried out that same morning.

27. The Plaintiff was an early arrival, if not the first. He had to set-up his instruments. He entered the premises via a rear or side ground floor door, and went through what is now a costume room or passage. There were then steps and passages leading up to the Rehearsal Hall level. The air-conditioning was switched on some time after his arrival and before rehearsal began. Clearly the presence of the H.K.P.O. was known and accepted. The orchestra gathered and settled down to rehearsal. Conditions appear to have been somewhat cramped. The Plaintiff recollects that they were only a few minutes into rehearsal when he became aware of a certain heaviness and then a smell akin to sewer gas, pungent becoming more intense.

28. He became aware of others reacting to it. Cathy Chutich, the French horn player, commented on the smell, others twitched their noses and it appeared to be getting to the throats of the brass section. Russell Kan, acting as the orchestra's monitor, went out into the foyer and reported back to the effect that there were men wearing suits and gas masks holding a hose from which smoke was pouring out. The rehearsal came to a halt with efforts being made to contact the management in order to obtain formal permission to abandon the rehearsal and leave the hall.

29. Meanwhile the Plaintiff was experiencing a running nose and burning eyes, his throat was becoming sore and breathing became difficult. He had a metallic taste in his mouth and was salivating. He developed a floating sensation, his vision was affected and he felt unstable. At some stage before he left the hall, he said that his attention was directed to the balcony where he saw a man with a mask on wearing a boiler suit, a back pack and carrying a stick which he was putting under the seats. All the time the smell was intensifying.

30. He tried to leave the building by the same route he used to enter but found the door chained, although it appeared that he did not realise that this was so. Roger Manners had to point this out to him and show him the way out. As they walked their way through passages, he felt conditions worsened, and so did his physical reactions---"confusion, distortion, beginning of a headache, pressure on the head, a feeling of not being connected to the earth." When eventually he was outside, he felt more than an hour and a half had elapsed since he first detected anything untoward.

31. An ambulance was sent for, he was stretchered into it and taken to Tang Siu Kin Hospital. He was there but a short time, was discharged since he wanted to go to the Canossa Hospital rather than the hospital suggested by the Tang Siu Kin, the Princess Margaret Hospital. Then there began a saga of medical observation, treatment and analysis between Hong Kong, the United States of America, back to Hong Kong, then back to the United States, and ultimately to the United Kingdom. He returned to play in the orchestra for a few weeks in 1987, and for the better part of the 1988/89 season. He contends that his professional musical and normal life has been destroyed by poisoning in the incident of the 21st June 1987. Was it, and if it was, who was or were responsible; and what is the nature of any long term disability which has been caused by the event in question?

32. The events of that morning need closer examination because of the issues involved particularly causation, and the reliability of the Plaintiff.

33. The pest control operation itself had commenced by about 9.30 a.m. It was scheduled for a 9 a.m. start. The two or three teams, I am unable to be certain about how many the employees of 'Exclusive' were divided into, worked in areas designated by the APA's security guards. There was no logical sequence devised of areas to be treated. Those areas included the entrance to the APA, the atrium, and the first floor and rehearsal hall with carpeted areas, and the linking corridors with vinyl or tiled floors. This was provided for in the schedule and confirmed by Mr. Juin's evidence.

34. I am not satisfied that it was at 9.40 a.m. that Mr. Juin met and spoke to any member of the orchestra. I think it unlikely that there was any argument as he describes. There was some lack of enthusiasm for a Sunday morning rehearsal and few if any members of the orchestra would have arrived well before the time the rehearsal was due to commence, which was 10.30 a.m.

35. The Plaintiff arrived somewhere around 10 a.m. He had to set up his instruments. He came in the back way. There was no notice displayed to warn or inhibit him. Someone must have opened that means of entry in anticipation of the orchestra's arrival.

36. Cathy Chutich arrived shortly after 10 a.m. via the front entrance. She was aware of some electric cables or cords in the entrance and recalls seeing a man wearing some sort of mask. Her recollection of the time of arrival accords with that of her husband, Charles Martin. Although in her affidavit Lynn Levey makes no mention of her time of arrival she was aware, as Cathy Chutich had been, of electric wire over the front of the entrance lobby and two or three pieces of equipment, as well as some smell "as if something had been sprayed."

37. Lee Humphreys also entered by the front of the APA and arrived not long before the rehearsal was due to start. She says she was never early for rehearsal usually getting there in the "nick of time". She refers to being on the second level of the atrium which is the first floor level where the rehearsal hall is situated. Her time of arrival was probably after 10.15 a.m. She was aware of two men with masks spraying something, and of there being a cloud or mist in front of her. She held her breath and ran through it. She had seen two machines and what seemed like wands. The mist appeared to stretch from floor to ceiling but I think that may have been an illusion if, as appears to be the case, the mist was suspended above her though she described it as going up to the ceiling. She went through two sets of doors separated by a hallway, to enter the recital hall. The mist was close to this access to the hall and it was unpleasant. She estimated some 60 or so of the orchestra were already assembled. Her evidence was in the form of a deposition in the Velsicol proceedings.

38. Jay Humeston was another member of the orchestra who gave some indication of the operation being conducted in the foyer area on the 1st floor level (Rehearsal Hall level). There is no statement or deposition from him, only a telephone note to the Legal Aid lawyer acting for the Plaintiff. I have to bear in mind the form of that communication and its inevitable limitations, as well as the fact that it was made 12 months after the incident. "The lobby was full of fumes - a very obvious and strong smell and there was a team of people who had masks on. He saw these people when he first entered the lobby from the rehearsal room." It is clear that he recalled seeing a security guard in the lobby because he was told by him to get out of the lobby. He crossed the lobby several times to speak to his wife who was working on the 5th floor.

39. One of the violinists, Mr. Russell Kan Wang To, who also acts as the Assistant Personnel Manager, and was the only management representative on duty that Sunday morning, is an important witness from a number of aspects. He obviously entered the premises through the front, arriving at about 10.15 a.m. His statement clearly sets out that he saw 2 or 3 men, wearing masks, spraying on the 2nd floor - i.e. in fact the first floor where the Rehearsal hall was situated. From these he went straight into the hall via the doors and corridor or small foyer. When told of the smell in the hall, probably by the Plaintiff, he decided to go out and investigate, though he himself had smelled nothing. He saw about 3 operators with masks spraying outside the main entrance to the hall and the smell was offensive. Earlier he had not noticed any smell. At some stage Russell Kan had made a statement in his native language to Mr. Lee Bo Luen, the Assistant General Manager. That statement has not been disclosed. It may have been mislaid although in the light of the existence of a letter from Mr. Lee Bo Luen to the General Manager of the APA it must have been in existence in Chinese or English form on July 8th 1987, and I would have expected the orchestra's management to have retained it. The piecemeal, delayed discovery by the Second Defendants in this case gives rise to a reasonable belief that it is "lying around somewhere." Mr. Lee Bo Luen's letter [Vo1.5C p.1330] refers to a report by Mr. Russell Kan which contains a number of details, all of some relevance to my findings in this action.

I have bracketed that phrase because for present purposes I leave it out of my consideration.

Over a year later, in December 1988, Mr. Michael Hamblin of the Legal Aid Department, made a contemporaneous note of a telephone conversation with Mr. Kan in which it is recorded that Mr. Kan recalled that there was a smog like smoke in the air, which was coming from the equipment.

40. Mr. Kan's statement in this action [Vol. 13w p.4318-20] is dated 23rd July 1996. There is a degree of consistency in a number of respects in that statement with Mr. Lee Bo Luen's letter, to the extent that I expect that the letter from Lee Bo-Luen was used as the basis for the statement. However Mr. Russell in his evidence disagreed with a number of the matters which Lee Bo-Luen had attributed to him. They were largely concerned with the effect of the spraying upon the Plaintiff and others. He also disagreed with the content of Lee Bo-Luen's letter and his statement of 23rd July 1996 where it was set out that he went out to the lobby area to find the operators were still spraying - he said they should have stated that he saw that going on in the ground floor entrance lobby when he went to the Reception desk.

41. These changes which Mr. Kan seeks to make have given me cause for some concern, because they relate to the Plaintiffs' case against one or more Defendants and are inconsistent with other evidence which I have referred to. It may be that the lapse of time has played tricks on Mr. Kan's memory, rather than there being any other explanation. I am however satisfied that what was set out in Mr. Lee Bo-Luen's letter is an accurate report, albeit in fairly limited form, of what occurred that morning. I have of course considered other evidence notably of Roger Manners, to whom I will make further reference later and Peter Cooper, both of whom entered the rehearsal hall by the stage door back entrance - i.e. the same route as that taken by the Plaintiff. Neither therefore would have passed through the first floor lobby. Furthermore I have to make due allowance for the fading of memory over the ten years which have elapsed since that incident.

42. Although expressly and impliedly there has been some disparagement of Lynn Levey as a reliable source of information - we have only her affidavit to look to - I have formed the view from a close and studied consideration of that document that reliance can be placed on the contents. There is nothing to indicate any animus on her part against the H.K.P.O. nor is there apparent any bias in favour of the Plaintiff. It is dated 30th March 1992 so a little under five years had elapsed when she was sworn to it. It strikes me as a balanced recollection, free from apparent exaggeration. There is one aspect of it, highly controversial in this case, which I will come to shortly. It may be of some relevance that she was "marking time" at this rehearsal and had more time to take note of what was going on around her. It was easy for her to be distracted.

43. I am satisfied that there was misting of a diazinon solution being carried out in the foyer or lobby area of the atrium on the first floor where the Rehearsal Hall was situated, and outside the entrance doors to that Hall. The operation there started before the rehearsal commenced and one or more security guards was in the vicinity with the working team of 3 men, masked and with appropriate equipment. The misting operation created a fog or smog like vapour which drifted. It entered the Rehearsal Hall in concentrations which varied in intensity and locality within the Hall to the extent that some but not all of the orchestra were affected. The coughing was the genuine reaction of persons so affected. However unpopular the idea of a Sunday rehearsal was, I reject the notion that professional musicians were simply initiating or exaggerating a reaction in order to terminate an unpopular rehearsal, as if they were a class of third formers. A significant number of musicians entered the Hall from the foyer - although I have heard and read the evidence of a very small proportion of that orchestra, it was some 80 to 90 strong that day. The communication doors were opening on many occasions to allow access to the Rehearsal Hall and some of the doors may well have been left open on some occasions. The mist entered via these doors into the Hall and permeated the corridor at the side. The air-conditioning was on in the Hall itself and I accept that in design it had a discreet system although it is impossible to say how it was functioning and with what degree of efficiency. The tests and expert evidence relate to what situation obtained nine or ten years later, not to the material time. The air-conditioning may have been on in the foyer/lobby area outside the Rehearsal Hall. It is quite impossible to be sure what the interaction was after this passage of time. It is not necessary to be precise. It is sufficient to say that all the reliable evidence drives me overwhelmingly to the conclusion that sufficient toxic material entered the Hall to account for what I regard as the genuine physical reaction of the Plaintiff, Catherine Chutich, Lynn Levey and others. When the conductor went out in due course to investigate she smelled "the offensive odour and coughed continuously", although she had not herself experienced any awareness of the vapour or mist inside the Hall. She did not recollect whether there was any offensive odour in the connecting hallway between the Rehearsal Hall and the foyer/lobby.

44. When Roger Manners was not playing in the rehearsal he was reading a book and learning Japanese. He spoke of players pretending to cough "partly to emphasize concerns about the fumigation, and partly from the general restlessness ...", and then later [Day 19 - p.137/8]. "I still wondered if there had been fumes coming in through the air-conditioning. We did not know. We did not know if it was hazardous to us either... I did not feel as if it was players manipulating the events just to try and get out of the rehearsal." Later he agreed he did not lend his mind to consider whether the coughing might have been genuinely attributable to something that had been experienced in the Hall. To some extent his evidence can be seen to be contradictory. Although he himself experienced no reaction, and was inclined to discount the genuineness of other persons' reactions he did not reject the fact of fumes entering the hall. I do not think he stayed very long and his enthusiasm to leave early matched that which he attributed to others. Apart from his playing and his Japanese studies I think he had little interest in the proceedings that day and was less aware of what was going on around him than were other players.

45. I have had cause to think long and hard about the evidence, limited as it is, concerning operators spraying or misting within the hall. The Plaintiff described in fairly detailed terms an operation in the balcony, pointed out to him by Jeff Hoard, from whom we have no evidence. Lynn Levey attested in her affidavit to seeing an operator wearing a mask carrying a hose, which was emitting fog, attached to something resembling a large vacuum cleaner. This she said she saw in the carpeted hallway through one of the open doors. He withdrew quickly when there was some apparent reaction to what was going on. Earlier in her affidavit she described another operator with a back-pack - such as a sprayer would wear spraying - but did not put him in any particular location.

46. The Plaintiff did not describe or mention in general terms to any doctor who treated him over quite a long time anything about seeing a sprayer in the balcony. I am not sure he did see this person. I think time and his, to some extent suggestible state, has caused him genuinely to believe that he saw such a person. But I accept the description afforded by Lynn Levey. The carpeted areas were to be treated on this occasion. Bearing in mind the proximity of the operation to the entrance to the Rehearsal Hall I see no reason why the operator, who may not have been told not to do the carpeted area of the intermediate hallway, should not venture into it, and into the tiled corridor which runs alongside the Rehearsal Hall. The whole operation was haphazard, poorly controlled and directed, and I find the evidence of the security guards unreliable. The picture I have described reflects the impression given to me by the written and oral testimony of the employees of the 1st and 3rd Defendants and is consistent with what Mr. Kan told Mr. Lee Bo-Luen - "The person at the Reception cannot stop them spraying." The APA were more concerned to let the operation go ahead, than to protect the players' well-being.

47. These points, though they may have seemed to be of burning relevance during the course of this trial, do not ultimately affect the fact that somehow or other there was a significant introduction of vapour-borne diazinon into the Rehearsal Hall on the 21st June, with some of the members of the orchestra of the view that it was entering via the air-conditioning vents. That substance in the air was of varying concentrations and localities - its course would be quite unpredictable. Dr. Edelman, when being asked about, inter alia, the level of exposure, said:

"The important issue here to me is that it makes no sense to try and figure out what the airborne level of contamination may have been, particularly with the uncertainty of the ventilation system and a multitude of other factors that would make wild assumptions necessary to try and calculate that exposure level to some degree" [Day 70 - p.161].

IV Ciba-Geigy as licensor, importer and distributor. ["Ciba"]

48. As long ago as 1953 it is contended, Ciba Geigy ("Ciba") agreed that Wong Ching Ho (WCH.) would be its distributor of diazinon in the agricultural sector. There is a letter of 3rd March 1960 confirming "WCH's" position as local distributor for agricultural pesticides. [Vol.7C p.2138-9]. There then follows a long history of market rivalry and complaints of competitors breaching what WCH regarded as their market. In September 1968 Ciba was writing to the effect that WCH "was exclusively selling Diazinon 60E as Ciba's distributors" although by 1972 WCH was asking Ciba to limit UPL's sale of Diazinon to the ready to use/hygienic use "leaving the traditional markets of WCH intact".

49. In 1965 there was evidence of Ciba having controlling influence over the labelling which WCH designed for Diazinon. The content was provided by Ciba, as one would expect from the developer/importer. A prospectus for Basudin 60 (another trade name for Diazinon) describes it as "harmful only to pests"; "relatively low toxic for man;" "application presents no hazard if the elementary precautionary measures printed on the label are observed;" and "no special clothing is necessary." [Vol. 7C-p. 2522-2523].

50. According to a letter from Ciba to the Director of Government Supplies dated 6th June 1970, WCH was their exclusive seller of Diazinon 60E [Vol.7C p.2177] but by a similar letter to the Director, dated 11th September 1970 (3 months later) the word 'exclusively' did not appear [Vol.7C p.2180]. In July 1971 Ciba entrusted UPL with the "exclusive sale and distribution of animal health and hygienic products" - in February 1972 the schedule of such products was amended to include Diazinon. [Vol.6C - p.1617].

51. The Agricultural Pesticides Ordinance came into force in July 1977. Ciba registered Diazinon (Basudin) by application dated 18th August 1977. The recommended uses were stated to be "Agricultural, Veterinary and Hygienic." A booklet entitled "Diazinon" published by Nippon Kayaku accompanied the application and specific references were made to it. The text and emphasis were directed towards agricultural use. [Vol.6C(1) p.1626/1653].

52. Under "Treatment for Diazinon Poisoning" are set out a number of toxic symptoms, and the antidote (atropine - "up to ten times the usual dosage"). The symptoms include headache, giddiness, weakness, discomfort in the chest, sweating, tearing, salivation and other excessive respiratory tract secretions, uncontrollable muscle twitches and papilloedema. Under a subheading of "Blood Cholinesterase" is the suggestion that periodic checks should be made of the blood cholinesterase levels in handlers. At page 1652 of Vol.6C(1) are reproduced the safety precautions. Very little is required. "Do not eat or smoke while spraying and not inhale the spray mist". Under "repacking" the user is enjoined to "use containers which have been well washed, cleaned to be free from any alien substance and then have been dried. Containers must be sealed."

53. In January 1978 the Agricultural and Fisheries Department notified its requirements for labels for registered agricultural pesticides. It included suitable information on "spray drift warning and protective clothing for mixing" - the former to be in the Chinese language, the latter in both Chinese and English.

54. November 1978 saw Ciba again issuing a statement for WCH (they had done so in November 1977) to the effect that WCH "are our appointed distributors for Diazinon 60E (Basudin 60E) for the local market." That letter certainly did not seek to suggest that there were two markets, or that WCH had a Ciba approved competitor.

55. However far more important at this time was the publication of a World Health Organisation document in April 1979 on Diazinon. Described now as of "moderate mammalian toxicity" it can be absorbed "by all routes of exposure." It set out the minimum requirements for labelling. They included: "It is poisonous if swallowed. It may be absorbed through skin, wear hand protection, clean protective clothing and a respirator when handling the material. If poisoning occurs, call a physician. Atropine and pralidoxime are specific antidotes and artificial respiration may be needed."

56. Although the emphasis is essentially upon protection for applicators in open agricultural spaces, the instructions apply a fortiori to applicators and other persons in confined spaces. Other equally important warnings and instructions were:

Amongst the initial symptoms and signs the following were identified-

"excessive sweating, headache, giddiness, nausea, hyper salivation, blurred vision and muscle twitching"

The prognosis states-

"If the acute toxic effect is survived and adequate artificial respiration has been given, if needed, the chances of complete recovery are good. However, in very severe cases, particularly if artificial respiration has been inadequate, prolonged anoxia may give rise to permanent brain damage." [Vol.8C p.2833-2840]

The foregoing serves to underline the duty of care on the part of manufacturers, suppliers, and users. Although the document did not appear to envisage the use of such chemical in confined spaces, whether by misting or other application, it follows logically that there would be at the very least the same precautions and instructions, with specific additions to meet the circumstances. This then sets the tone and content for labelling, additional literature, and instruction and supervision. As a matter also of common sense, the concept of the application of diazinon for pest control within buildings or confined spaces generally called for careful approach to practice, warnings, labelling and the distribution of literature, or information culled from it as research and experience expanded and revealed problems and risks.

57. These principles were further underlined by the publication in 1986 of "The International Code of Conduct on the Distribution and Use of Pesticides" by the Food and Agriculture Organisation of the United Nations. [See Vol.8C p.2629-2636.] In a definition section, the publication deals with "hazard" and "poison", two terms which have occasioned some semantic exchanges in the course of this action. The former term means "the likelihood that a pesticide will cause an adverse effect (injury) under the conditions in which it is used." The latter means "a substance that can cause disturbance of structure or function leading to injury or death when absorbed in relatively small amounts by human beings....."

58. Pesticide manufacturers are "expected to take care to see that the proposed use pattern, label claims and directions, packages, technical literature and advertising truly reflect the outcome of ... scientific tests and assessments." They and distributors should make every reasonable effort to reduce hazard by, amongst other product measures specified, using clear and concise labelling, and manufacturers, in establishing production facilities in developing countries, "should cooperate to take all necessary precautions to protect the health and safety of operations, bystanders and the environment."

59. The pesticide industry should use labels that "include appropriate symbols and pictograms whenever possible, in addition to written instructions, warnings and precautions." The more general concern was reflected by the conference resolution 10/85 of the FAO in the following form.

"Acknowledging that pesticides can be hazardous to humans and the environment and that immediate action must be taken by all concerned, including ... manufacturers, traders and users, to eliminate, as far as possible, and within the scope of their responsibility, unreasonable risks, not only in the country of origin but also in the countries to which pesticides may be exported."

60. Until the arrival of Mr. Claude Gauchat in 1986 there was no policy or plan as to safety in the labelling of the imported diazinon which was to all intents and purposes Ciba-Geigy's product though produced under licence. Nor was there in existence any standard procedure for the distribution or communication of information relating to the product to the next trader down the line of distribution to the end user. The health of the applicator or of any person who might come into contact with the product was not of prime concern. Ciba-Geigy were largely concerned with the market-place and the opportunities for its expansion on the mainland.

61. The burden of good stewardship, as Mr. Meadows indicated, was a heavy one. It was a concept well-known and accepted well-before 1987. Rentokil's handbook may not have been readily available to its competitors, but the contents were obviously based on general scientific knowledge and experience. Since such knowledge was available to a known Pest Control Operator, it must have been known to the manufacturer and distributors of the product at least. The basic need, and duty, was to label adequately for safety reasons. In this regard there should be in my view no difference in approach between the label for agriculture use, and that for the health or hygiene. It was known to Ciba-Geigy that their distributors were operating in each other's market, and they as manufacturer and one of the founts of all knowledge, had to envisage the worst situation when it came to safety and treatment.

62. In Europe Ciba had for some years been concerned with the needs of the industry in its emphasis on safety in handling and application. Nothing effective seems to have been done in Hong Kong although Ciba had a significant presence and organisation here since the early 1970's at the latest. The legislation in force, even after the late 1970's, was not comprehensive enough, nor was it strict enough given the hazards involved. That can not be an excuse for any manufacturer or distributor. Whatever the limitations or shortcomings of legislation, they had the knowledge and the means of maintaining it, and of disseminating it in order to fulfil their duty of care.

63. The two main distributors of Ciba, WCH and UPL, had been involved with marketing diazinon under different trade names - Basudin and Neocidol respectively. UPL's written agreement with Ciba in 1971 described its area of exclusive supply as "Animal Health and Hygiene Products." WCH regarded itself as being the exclusive agent for Ciba in the agricultural sector. Although there has been loose, imprecise terminology describing the particular market sectors, WCH and UPL criticised each other for trespassing on what they regarded as their respective segments. Ciba did not do enough to clarify the position and seems to have turned a blind eye to the cross-border exchanges.

64. Mr. Gauchat sought to confine WCH to the "Plant Protection" market whilst UPL were to restrict their market to "Animal Health and Hygiene Products". Such descriptions did nothing to resolve the conflict between WCH and UPL for the latter's area was understood to include agricultural livestock. With this clear overlapping, not to say confusion, any distinction to be drawn between labelling and disseminated information for the Plant Protection and Pest Control markets was purely academic. Pest Control operations in the industrial/commercial/residential sector had by now become a substantial market.

65. Whatever the merits of WCH's concerns about their market being invaded by UPL (and vice-versa), Mr. Gauchat said it was the element of safety which was in the forefront of his contact with these two major distributors. He appeared to draw a distinction between the safety factors involved in the two market segments. This was of course misconceived. There ought to have been an effective policy of ensuring that all the safety precautions and dangers were effectively spelt out by labelling etc. whatever the market.

66. The memorandum of Mr. Gauchat's meeting with UPL on 7th October 1986 did not include safety as a topic but confirmed an intention to inform WCH to "avoid competition in PCO segment". There are clear records of Ciba supplying WCH with bulk diazinon (200 litre/kg. drums) from June 1986 to May 1987.

67. In January 1987 Mr. Gauchat had a meeting with WCH. The memorandum confirmed the market conflict but safety was also under discussion. A GIFAP booklet was given to WCH who "expressed willingness to review actual safety measures in their premises" [my underlining]. There is no note concerning safety at large viz. during pest control operations or, as WCH was supposed to be concerned with, Plant Protection. The booklet had distinct application but was directed at the users of the pesticide or the handlers prior to use. Intoxication by inhalation is warned. Environmental contamination is dealt with in a very general form. There is no mention of the risk to bystanders or other members of the public who may accidentally come into the vicinity of the operation. There is however a good section on occupational health and first-aid, again, aimed at permanent and contract staff working with pesticides.

          "Pre-exposure baseline cholinesterase levels must be determined for all operational staff. Staff regularly engaged in formulation and packing procedures and maintenance staff must have their cholinesterase levels checked regularly, and detailed records must be kept." There is no evidence that either WCH or Exclusive implemented these measures for the benefit of their staff. Only Section 3 of the booklet, which deals with Storage and Transport, was translated into Chinese, a serious omission.

68. Section I also itemised, in illustrative form, the personal protective clothing and equipment which should be available for routine work. I think it should have stated - "Must be worn" - to be an effective warning.

69. In January 1987 WCH sent to Ciba a label for Diazinon 60 E [Exh. 8 - Vol 6c(1) p.1755]. It said only "Beware of spray drift" and "Protective clothing for mixing". Neither was adequate in respect of the two aspects. It should have stated warnings to the effect "Do not inhale spray mist", "Do not mist in presence or vicinity of unprotected persons (or members of the public)" and "use protective clothing at all times when handling or using the insecticide".

70. Two days later Ciba sent to WCH a Product Safety Information Sheet for Basudin 600 EC (Diazinon) dated June 1982. It gave clear instructions in relation to "First Aid" and "Operator Safety". It was accompanied by a 1977 publication entitled "Product Information". That by contrast, did not contain adequate or appropriate information in relation to safety.

71. In reply to the letter from WCH sending Exhibit 8, Ciba wrote, sending Exhibit 9 [Vol 6c(1) - p. 1768] which was Nippon Kayaku's own label, with the tentative suggestion that WCH "Should review and consider as material for possible modification of your own label". The label again was concerned with agricultural use Mr. Gauchat having crossed through the section dealing with hygiene use. It was directed to the risks as far as the operator was concerned, outdoors, with but one short section saying - "Do not swallow. Avoid contact of skin with undiluted diazinon. Do not eat or smoke while spraying and do not inhale the mist". There is nothing about protective clothing, nor is there any expression conveying the need to ensure that non-operatives do not come into contract with the material and the urgent steps necessary in the event of an accident. There is simply a statement identifying the antidote, its dosage and the means of administering it. On March 12th 1987 Ciba sent to WCH a Safety Information Sheet for Diazinon 40 EC and 60 EC which did not advance the position significantly. The labelling was still deficient, health hazards were identified but no attention was paid to the need to protect the bystander.

72. The manufacturer was in the best position to know how its product should and should not be used. Misting had clear and inevitable risks. Diazinon should not be used for misting. It was to be used in a residual spray. In Asia in the 1980's misting was commonly used according to Mr. Meadows. In relation to the risks to the population at large he said "The basic rule is do not have the general public where they can come into contact with the pesticide at all". [Transcript DAY 34 p. 63.] These considerations required unequivocal expression in labelling which was the prime source of information. Ciba could not sit back and let WCH assume the burden. Furthermore WCH sought Ciba's advice and guidance - that was sensible although they did not go far enough given their own knowledge and experience. None was in a better position than Ciba to obtain information from all sources and pass it on for the benefit of those who were to distribute and use the product. Ciba, knowing of WCH's ventures into the Pest Control market, ought either to have ceased supplying to them, or to have ensured that labelling and other literature was provided which set out all the risks and the practice to be avoided. Ciba was far more interested in whatever markets WCH could promote or develop - [Transcript Day 34 - p.43 - and see memoranda of meetings between Ciba and WCH in 1987] and although Mr. Gauchat implemented some change in Ciba's concern with safety it came too late and was too little. The indifferent and casual approach of past years needed to be replaced by a strong, positive and insistent approach. It is clear from Mr. Gauchat's own evidence, as well as from that of Mr. Meadows, that in 1987, the principle of stewardship was nothing new; the purpose and proper content of\labelling was a matter of common sense and the prime and immediate source of information for anyone at risk. That included persons such as the Plaintiff who might be affected by the use of the product, in whatever form. It was not confined to the immediate customer or distributor. An expectation that such distributor or customer would acquire knowledge and label adequately, however reasonable, would not excuse the importer/manufacturer. The latter would remain primarily liable as the source. In view of the nature of the product, and its origin and development, the latter would retain the duty of care to ensure by all proper reasonable means that the toxic product which it sold, was accompanied by a clear statement of the dangers it posed and the precautions to be taken.

73. As Mr. Gauchat said in evidence, "Labelling and reading the label are fundamental steps in any safety campaign." [Transcript DAY 62 p.54.] He accepted that any label concerned with diazinon in the market in Hong Kong at that time should have said "as a good precautionary statement", "Do not mist in areas where people may come into contact with the pesticide." Unfortunately his letter of 14th January 1987 to head office in Basle failed to meet that approach. It said, "in enclosing a copy of WCH's label for Diazinon 60E, "from a local point of view we do not see the necessity to make any recommendation regarding label modifications". On the copy of the label was written "Do you think this would be an adequate model for UPL to base their own label on?" [Vol. 6c(2) p.1889-1890.] That was illustrative of the duty of care on Ciba and Ciba neglected that duty in the material respects I have set out.

74. The law is succinctly set out by Rees, J. in Vacwell Engineering v. B.D.H. Chemicals, 1971; I.Q.B. p.88. At p. 101 Rees, J. considered the class of customer who might purchase the substance in that case. He found there was no restriction but that it was open to any customer to purchase it. In the case of diazinon, on the evidence it was clearly sold to customers in large and small containers, one litre bottles. It was also used in spraycan form. Not only is the class of customer very wide but the use of it in pesticide operations, of which Ciba well knew, involve risk to the applicators themselves and since the area of operations included enclosed public and private premises, as well as agricultural areas and buildings, there was a clear and obvious risk to any member of the public in the vicinity - more particularly in enclosed areas.

75. It is entirely foreseeable that if a member of the public came into contact with sprayed and or misted diazinon, he or she might suffer some injury. That was well known. The nature of the initial injury was itself well know viz. inhibition of cholinesterase. There is no argument available to Ciba, in my judgment, either in relation to duty of care or in relation to foreseeability of damage. I shall deal with the extent and nature of information and material disseminated to WCH in due course. In general terms however if Ciba provided and maintained a system for carrying out adequate research into scientific literature to ascertain known hazards, there is no evidence of it. Yet in view of their position in relation to the development of diazinon, it is difficult to believe that Ciba would not have had, "at its fingertips", all the research material on an up-to-date basis, in relation to it. They did not pass all such material on to WCH. Prior to Mr. Gauchat's arrival there was no policy or system in that area. They had the opportunity to cure the defects or failures hitherto when WCH referred labels to them for advice or modification. Ciba was an international organisation known world-wide. Their distributor was a Chinese company trading in a market or markets, on a very intense competitive basis and Mr. Gauchat's evidence indicated that he was well-aware of the consequential problems and risks which called for product stewardship-language problems in communication, lack of training, the approach to safety, and the different areas in which diazinon was used.

76. Ciba rely, in their argument, upon the implications of sale by them, to "informed intermediaries", and upon a passage in Dow Corning Corporation v. Hollis et al 129 Dom. L.R. p.609 (at p.622/623). The so-called "learned intermediary rule" is applicable

"either where a product is highly technical in nature and is intended to be used only under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product."

It is really, as that decision in fact states, a "specific application of the long established common law principles of intervening examination and intervening cause developed in Donoghue v. Stevenson". Paragraph 29 of that judgment is pertinent in this context.

"The rule operates to discharge the manufacturer's duty not to the learned intermediary, but to the ultimate consumer, who has a right to full and current information about any risks inherent in the ordinary use of the product .... The manufacturer can only be said to have discharged its duty to the consumer when the intermediary's knowledge approximates that of the manufacturers."

In Ciba's case it stands in the shoes of the manufacturer. It was asked by WCH to consider the labelling. There was at the very least an implied if not express reliance upon Ciba to provide all relevant information and assistance in all respects. WCH was not a "learned intermediary". Exclusive was the initial user. It too was dependent upon the supplier, WCH (through Ciba) in the same respects. It had access to some information supplied by WCH who in turn had received it from Ciba, and received information and advice in relation to the carrying out of pesticide operations from the PCA of America. But, although an intermediary with access to some information, it was certainly not learned' - its knowledge did not approximate that of Ciba. The facts of the Dow Corning case are not to be equated with the manufacture, distribution and use of a pesticide.

Breach of Statutory Duty

77. Diazinon was registered under the Pesticides Ordinance: 1977. The applicable Regulations were those of 1983. Ciba was licensed to import. They supplied though did not sell by retail. They were bound by the requirements of the Regulations in respect of labelling. Regulation 12(F) requires particulars on the label in a conspicuous position in English and Chinese of "instructions on the manner in which the pesticide is to be used together with the precautionary measures to be taken when applying the pesticide"; 12(h) requires the antidote and first-aid action to be taken in the case of poisoning. Ciba were in my view in clear breach of those regulations. Such breaches of duty, and WCH were similarly also in breach, do not in fact add to the breaches of duty of care and negligence which I have found but they do indicate the failure to concentrate the mind on such essential matters at the time of registration. There are other breaches of the regulations on technical aspects which I do not need to consider.

V Wong Ching Ho, the direct distributor. ["WCH."]

78. As we have seen WCH had a long-standing relationship with Ciba going back thirty years or more at the time of this incident. They had supplied essentially to the agricultural sector, because that was where the demand initially lay. They were Ciba's exclusive distributor although Ciba's approach to that status became rather ambivalent.

79. As the supplier of diazinon, WCH's obligation was clearly to provide all the information on the safe use, and dangers, precautions and treatment in the event of accident to its customers. That again had to be in the form of written material but particularly labelling. Since a label was likely or at least intended to convey essential information in readily instantly visible form, and would as a consequence have limited content, a good sensible label should make references to other supplied information. This duty of care was of a high order. Diazinon being toxic it would be used safely, or at least with minimal risk, only if certain precautions were observed. WCH knew this. It was their duty to spell it out for the benefit of the users and all who may come into contact with the material.

80. Eventually WCH was complaining about UPL intruding into its agricultural market and clearly, in return, WCH was seeking to exploit the urban Pest Control market in commercial and industrial buildings which had developed in the 1970's and early 1980's.

81. WCH had had dealings with "Flick". Mr. Louie, now of "Exclusive", had had dealings with WCH when he had been employed by "Flick". Mr. Wong Hon Poon knew of Mr. Louie, from that previous commercial relationship, and of course, that "Flick" was a pest control operator in the non-agricultural sector. Mr. Andy Wong assumed that 'Exclusive' would use diazinon in buildings, indeed he made the point that he could only use the label (Exhibit 10) which was essentially for agricultural purposes. It was the only one available.

82. This label was hopelessly inadequate to fulfil its purpose - to warn, prevent and advise. For a 200 litre drum, its size, about the same as a visiting card, meant that it would not catch the eye, would be easily rubbed off, and by its nature would indicate that it was not of sufficient importance to merit attention. Its contents did not comply with the requirements of the Agriculture and Fisheries Department. WCH were in breach of the requirements under regulations 12(f) and (h) in the same respects as Ciba. WCH seem to have proceeded on the basis that providing they put a label appropriate in their view to agricultural use, on supplies to pest control operators, that met their obligation. That is a fundamental misconception. Even if the AFD label were a sufficient discharge of WCH's duty of care to agricultural users, which it was not, it could not be regarded as sufficient for the entirely different circumstances of indoor use. [Transcript Day 31 p.107]. Unless there were clear references to the use of protective clothing, the need to avoid inhaling mist, the need to keep people away from any risk of contact with the operation printed in both Chinese and English, the message was unlikely to reach the persons most at risk. There was certainly no content on the label which guided Pest Control Operators on indoor misting.

83. WCH's duty extended not only to conveying whatever Ciba conveyed to them but to inquire of Ciba and other sources, - e.g. publications, institutions - to obtain up-to-date information on the product which it then had to pass on in an effective form. Mr. Wong Hon Poon said "all along I tried to read this information from books" - and - "as a seller we should have this kind of expertise or knowledge". The importance of obtaining and disseminating this information was illustrated by Mr. Wong Hon Poon [Transcript Day 34 - p. 36]. "As far as the point I had with the pest control people, I know that the people under did not have much training. I do not know whether the people on the upper level had training or not." Mr. Wong Hon Poon's knowledge of diazinon was in any event such that he said he suggested to Mr. Louie that he buy synthetic Pyrethroid (or Permethrin) instead of diazinon, because it was safer and cheaper to use. [Transcript Day 33 - p. 28] If in fact he did say this, he was under no illusion as to the risks inherent in the use of that pesticide.

84. WCH knew diazinon was a dangerous chemical and that it needed to warn all customers and users of the need for great care. It knew its duty but failed to discharge it fully. It was aware that there were probably users of the chemical who were not well-trained and not well-informed. Common-sense dictated that indoor use required even more care but in its concern to extend or hold its market it did not openly indicate to Ciba its need for all the information to enable it properly to label the PCO product so as to transmit all necessary information. When it did use a label it was almost as an afterthought. Nothing was transmitted to advise against the dangers implicit in misting, especially indoors.

85. At some stage in the course of the trial it became clear that the diazinon used by "Exclusive" on the occasion in question had come from WCH as part of the diazinon supplied to them by Ciba. There are invoices evidencing such supply to "Exclusive" dated 18th April 1986 and 12th January 1987 [Vol. 5C - p. 1398 A and B]. There had been an inquiry by "Exclusive" following the incident, and a little over 12 months later Mr. Henry Louie made an affidavit in the Plaintiff's Employees' Compensation proceedings in which he stated that WCH had supplied the diazinon used in accordance with the later of the two invoices referred to. Although WCH sought to keep alive the possibility that "Exclusive" had used diazinon from another source, I am satisfied on all the evidence and particularly that of Mr. Louie, that WCH was the supplier to 'Exclusive' of the diazinon used in the operation on the 21st June 1987.

86. Mr. Chow Yung Fat, who was in overall charge of the operation, expected the diazinon which was in buckets to have been drawn from the drum in the warehouse, and that drum had been delivered by WCH. "Exclusive" had acquired the business of RM1, another pest control company, in April 1987. There are stock control records for RM1 from November 1987, some four months after this incident. WCH were understandably concerned to see if RM1's diazinon could have been used on June 21st instead of WCH's. Exclusive and RM1 had separate accounting, hence no doubt the need for separate stock records. These are the records together with the oral evidence which confirm my view that there had been no use of RM1's diazinon.

87. The essential argument advanced on behalf of WCH is that they were simply transmitters of information from the manufacturers, relying upon them for the essential material. This however cannot hold water. WCH knew enough from experience, and their own researches, to pass on information to the customer and beyond. They knew that they were trading across the market. To some extent they hid their involvement in the PCO sector (though Ciba clearly knew of it) and never directed their inquiries to Ciba on the basis of what risks and precautions may have been peculiar to that market. Their concern with the marketplace overrode any question of safety although Mr. Wong Hong Poon may have paid "lip-service" to it.

88. WCH were not "mere" transmitters. Their duty was, as retail sellers, to ensure that their knowledge of the product was fully and properly conveyed to their customers, and it extended to ensuring that they obtained the best and latest information on a product which they knew had dangers. To some extent I feel the size of the label which WCH said they put on the large drum, wholly inadequate as it was, was a reflection of how little priority they gave to the safety factor overall. Their approach was neither safe nor responsible.

89. The material supplied or allegedly supplied by WCH to Exclusive was for the most part well out-of-date. It was orientated towards the agricultural sector. The label (Vol. 7C p.2398) was clearly for agricultural use but the precautions in relation to animals could have afforded some insight into the possibility of the need to take care to prevent members of the public coming into close proximity to the application of the pesticide. Mr. Louie of Exclusive said, and I accept his evidence, he received only two of the publication - the old 1955 Geigy publication, "Dizainon in the control of flies", and "Ripcord - The Proven means to Bigger Yields". Neither would have provided pest control operators in commercial premises with any assistance.

90. It is also contended on behalf of WCH that because 'Exclusive' was a major pest-control organisation, and Mr. Louie was a very experienced professional in this area, it would be well-known to them that strict precautions should be taken to eliminate known risks. As I will set out in due course, there clearly was a significant amount of information available to Exclusive and some of its employees, but that does not relieve the supplier of his duty of care. Exclusive's employees were predominantly Chinese. Proper translation of all the essential literature and labels ought to have been supplied. Unless the supplier discharges fully his duty and acquaints his customers with a stark statement of risks and precautions in unequivocal terms, the customer will not respond with equal awareness and concern whatever he may himself have learnt, and may not appreciate the full picture. Had WCH (and Ciba through WCH) provided proper labelling, informative up-to-date literature, and some form of training or advisory programme, I am satisfied that Exclusive (through Mr. Louie) and its operators (through Mr. Chow Yung Fat), would have taken greater care of their staff and as a consequence would have been more protective of members of the public. In fact on the 21st June, the operation would not have been carried out, once Exclusive's employees were made aware of the presence of members of the public in the APA's premises. Furthermore they would have known what do by way of emergency treatment and advice once the situation concerning Mr. Philips presented itself. WCH by their neglect and breach of duty acquiesced in an unsafe system of use, and a state of relative ignorance which held potential dangers for user and bystander alike.

VI Exclusive Environmental Services (Reliance). ["Exclusive"]

91. This is a company specialising in pest control operations in residential, commercial and industrial premises to which the public had access. In 1987 the key figures in the operation were Mr. Chow Yung Fat and Mr. Henry Louie, the Operations Manager and the General Manager respectively. Both had been in the pest control business for many years, they having worked together previously for a company called Flick Pest Control, a competitor of "Exclusive" in the trade. Mr. Chow was the person who had responsibility for the day to day pest control operations at Flick and then at Exclusive.

92. On moving to "Exclusive" from Flick, Mr. Louie examined the range of suppliers of pesticides. At Flick they had obtained supplies from Wong Ching Ho, the 5th Defendants - Wong Ching Ho (WCH) became a supplier to "Exclusive".

93. In December 1986 the Academy of Performing Arts put out to tender the contract for pest control at the Academy ("APA" - the 3rd Defendants.) Amongst the special conditions of the tender stipulated by the "APA" were the following:

          4.0

          "All tenders should furnish the following details of all the chemicals used:

[VOL. 5C p.1157]. By a letter dated the 6th January 1986 Exclusive had set out the pesticides it proposed to use in the original contract with the "APA". They were Dursban (Chlorpyrifos), Safrotin, and Warfarin. The data on the chemicals was also sent with the letter.

94. In the tender for the December 1986 invitation "Exclusive" sent the technical data sheets for, amongst other, Dursban (Chlorpyrifos) Diazinon (Basudin or Neocidol) and Pyrethrin. This is confirmed by a document [VOL. 5C - p. 1167] of "APA" which is a comparison chart of all four tenders. All of them incidentally, included diazinon as the chemical used against cockroaches and ants. Although required under the terms of the tender to provide information as to toxicity this was not done. The technical statement makes no mention of the potential effect upon humans (other than the highly technical references to acute oral and acute dermal) and at the bottom of the technical sheet in relation to each chemical is an exhortation to "Read the Label". That exhortation would be of no use to the APA. They were relying on the skill, expertise and judgment of Exclusive who had not set out in unequivocal terms the hazards and protective measures to be taken. The label of course, would not have meant much to the APA even if they had been supplied with it. "Exclusive" owed the "APA" a duty of care, in contract and at common law, so the "APA" were wholly dependent on whatever information was supplied to it, and what they knew independently of that.

95. The contract was for a year with a number of treatments monthly and some quarterly. Different areas of the APA were to be treated at different times. The contract was apparently continued with a price increase from April 1987.

96. Both Mr. Louie and Mr. Chow in particular regarded the pesticide Diazinon, as an effective, economical pesticide. In April 1986 a 200 litre drum had been purchased from WCH and in January 1987 a further 200 litre drum was purchased also from WCH. Both purchases are clearly evidenced by documents and there are inventory records as well.

97. Mr. Chow said that he decided to use diazinon for the "APA" contract though it is not clear precisely when that decision was made and first applied. When diazinon was drawn from the warehouse or store it was poured from the drum into a bucket. That bucket had a lid and a screw top. In fact there were about six such buckets, two being kept on each of the three vans used by the company.

98. "Exclusive" were the general cleaning contractors for the A.P.A. and had been given the pest control contract in early 1986.

99. What did "Exclusive" know of diazinon?Mr. Louie clearly left the actual operations, the drawing and mixing and application of diazinon, to Mr. Chow. Mr. Chow was subjected to substantial cross-examination by some other defendants on the premise that some chemical other than diazinon, or some combination of chemicals (of which diazinon may have been one) was used at the APA on that day. I have had little difficulty in concluding that what Mr. Chow and his operatives used on that day, and on earlier occasions, was diazinon, and only diazinon. I see no reason for Mr. Chow to be mistaken or to deceive anyone about this. The various documents referred to in support of that line of cross-examination are explicable in the terms he provides. The stock records are not the incontrovertible record of whether there were or were not buckets of diazinon available for this contract at the "APA". The contractual documents which include reference to diazinon do not support the line of argument. A schedule of the cost of the tenders, the chemicals used, and the treatment to be provided show that all four pesticide operators indicated diazinon was amongst these chemicals. Looking back nearly 10 years Mr. Chow described diazinon as being similar to Dettol. He was confronted at some stage with a number of bottles of liquid the purpose of which was to suggest that the bottle with the lighter coloured liquid was the type supplied as diazinon by the 5th Defendants and could not reasonably be mistaken for the colour of dettol, whereas the colour of Dursban could reasonably be liKened to dettol. A number of documents refer to the colour range of diazinon as being from light amber to dark brown. I rejected certain applications made by the 5th Defendant relating to the production of these bottles. The paler liquid was sufficiently close to the comparison made by Mr. Chow to dettol; technical documents relating to diazinon's colour describe it as ranging from light to dark amber; the colour of the paler liquid may well have changed over 4 years; it would require expert chemical evidence to consider all the possibilities and varieties of colours; it was too late to raise this issue - the 5th Defendants had retained the paler diazinon in this jar for over two years without ever raising in discovery its existence. They must have retained it for a purpose associated with this litigation.

100. That there was some risk to the occupants of premises in which a pesticide operation was being carried out was acknowledged by Mr. Chow.The usual practice was to ask for the premises to be vacated, or, at the very least, for the immediate area in which treatment was to be carried out, to be clear of people. It was not necessary, he said, to evacuate those areas in which there was to be no application. It was usual to ask the security guard to switch off the air-conditioning; sign-boards he said were given to the "APA" warning "No Admittance".

101. He had not attended any formal training in relation to the toxicity of the chemicals used. Furthermore he had not read any manufacturers' literature concerning Diazinon, did not understand the label which was in English and Japanese, and had not read literature from the national Pest Control Association, an American organisation to which "Exclusive" belonged.

102. "Exclusive" had access to publications by the American National Pest Control Association. The most relevant one of which is the "Good Practice for Misting of Insecticides Indoors" a technical release dated the 4th November 1978 [Vol. 8C - p.2601-2604]. In view of the precise nature of the safety precautions advised it is helpful to set some of them out.

103. The evidence of Mr. Chow Yung Fat makes it clear that they were not applied to the operations which he supervised. In fact the impression I have is that the operation on the 21st June 1987 was carried out in a rather haphazard manner. There may have been an organic vapor respirator available. There is no evidence that the humidity level was checked that day. The insecticide was contained in buckets crudely marked "DIA". There is no evidence that the APA was provided with a list of instructions and precautions they should follow. Treated spaces were not closed for the specified length of time on the label. (The label on the original drum does not seem to have carried any such indication.) No plan to minimise the length of time the operator was exposed to the mist was applied. Work was certainly not carried out starting at the furthest point and working away from it towards the exit. This technical release was not in any event available in the Chinese language. Mr. Chow had not seen a copy in English.

104. His evidence as to what was carried out at the APA on that Sunday morning discloses a complete absence of any sort of format. The instructions relating to the closure of all windows, outside doors, ventilators and other openings leading outside, and the sealing of all other non-sealed closures were either not given or not followed. The occupants were not told to close and lock the building for the duration of the exposure period, alternatively Mr. Chow's team carried out the operation without having ensured that this was done. No notice was posted indicating that the building had been misted and should not be occupied until ventilation had been completed. They simply downed tools and left.

105. Amongst the literature available to Exclusive was the 1955 pamphlet "Diazinon for Public Health", from J.R. Geigy of Basel, Switzerland the patentor of diazinon. A number of phrases in that publication are somewhat disarming:

106. With such anodyne assertions [Vol. 13W. pp.4473 (73-75)] users of diazinon would feel re-assured. Any change in such a picture would call for immediate communication and a radical re-appraisal of the procedures. The need for this is underlined by the implied uncertainty - "There have been no reported cases of human poisoning by diazinon, and no data therefore exist on the toxicity of diazinon to man."

107. A further publication by Ciba-Geigy, "Public and Industrial Hygiene", the date of which is not clear, refers to "Slight to moderate toxicity of diazinon to mammals." Under "Safety Precautions" very little is stated. "Do not inhale the spray mist" is stated including an instruction to avoid contact with the skin and eyes. "In the event of an accident or illness, call a doctor immediately." Atropine is the antidote. Finally the user is told - in heavier type - "Always read the label before use." [Vol. 13W. Pp.4473(98) & (102)]

108. It is apparent that there is not even a recommendation to use protective clothing or masks - even though the statement makes it clear that the material is potentially harmful.

109. Another publication available to Mr. Louie, was the Bulletin of Pacific Toxicology Laboratories entitled "Human Toxic Chemical Exposure." This deals with organophosphate pesticides, including diazinon. There is an early warning - they are "less persistent in the environment but are more likely to acutely poison the people who use them or come in contact with them." The second paragraph of the reference summary includes the following:

"Organophosphate pesticides are powerful inhibitors of cholinesterase......Poisoning occurs when the inhibition of cholinesterase leads to accumulation of acetylcholine at the nerve synapses resulting initially in over stimulation and then paralysis of neutral transmission."

I am not at all sure however that this highly technical statement would mean very much to Mr. Louie, and it would probably mean nothing to Mr. Chow.

110. The signs and symptoms of acute poisoning are set out [Vol. 10C(1) p.3394 & Vol. 13W. p.4473(92)]. In passing, many of them, it is to be noted, were clinically detected and/or complained of by this Plaintiff before and on arrival at hospitals on the 21st June 1987. There is a further statement of some significance at Vol. 13W. p.4473(95):-

"...Following exposure. The level of cholinesterase activity decreases, which can be measured by various techniques. However, to detect such a decrease, a baseline activity measurement, prior to the exposure is necessary. Obviously this is not always possible, especially in non-occupational situations."

This implies the need for employers of operators to be prepared in the event of an incident. Later we shall see the statement's relevance in the context of 'normal' cholinesterase test results. There is no evidence to suggest 'Exclusive' took the necessary preliminary steps to protect its employees.

111. In a separate paragraph dealing with worker exposure it is stated that those who apply and mix pesticides are at special risk of systemic pesticide illness. The effectiveness of protective clothing and respirators has been assessed in biological monitoring, such is the appreciation of the hazards, that the results of studies of the efficacy of various means of evaluating them, indicated that no single method is adequate. None of these steps recommended appears to have been adopted by "Exclusive". Mr. Chow's evidence in relation to the protection of his team (and other teams) confirmed the use of respirators when misting but not when spraying. There is evidence from security guards at the APA that operators of "Exclusive" wore gauze masks not respirators. Some of the evidence from orchestral members refers to gas-masks-Russell Kan described a gas mask. Mr. Chow said that the security guards were provided with gas masks but never used them. The guards said they were not so provided.

112. Without doubt the pesticide operators, "Exclusive", owed a duty of care to the occupants of the APA and to their contractors the APA themselves. I shall return in due course to the nature of the information given by "Exclusive" to the APA when I deal with the position of the APA itself but the knowledge of "Exclusive" that the chemical which they chose to use, Diazinon, was certainly moderately toxic with potential harm to users as well as others who came into contact with it, required them to ensure that there was no likelihood of anyone in the APA coming into contact with it. The supply of masks to the security guards was not a sufficient precaution. They should have notified the APA that the operation carried a risk of illness/harm to persons in the academy. Mr. Chow said that they required the building, or parts of the building where the operation was to be carried out to be evacuated. That was not done. There was certainly room for misunderstanding. No letter or written document from "Exclusive" to the APA set out what precautions were to be taken until after the event.

113. Although I am satisfied that some information was conveyed to the APA about possible harmful effects - as is clear from APA's memorandum of the 27th March 1987 [Vol. 13W. p.4240] - it was wholly inadequate. The operations under the contract seemed to have been carried out on an "ad hoc" basis. No notices or placards were displayed or provided by "Exclusive". A "No Admittance" board was inadequate. There should have been notices saying at least "DANGER - KEEP OUT." "POISONOUS SPRAYING" or some such stark prohibition or alert. No steps were taken to have stand-by emergency medical treatment. There was no cordoning off of the areas to be treated or sealing of any communicating doors. Although it can be argued that the implementation of such measures could reasonably be left to the occupiers i.e. APA, that could not be relied upon unless they were specifically identified, with the reasons for them, and contractually required of the APA. That is not to say that the APA were thus relieved of all responsibility and liability as will be set out in due course.

114. The process of misting was unsafe in itself. It put the operators at risk as the literature indicates. It was inappropriate for the application of diazinon to carpeting. Residual spraying was the proper and more effective method. Misting simply increased the risk of drift and inhalation.

115. It is highly likely that the small inappropriate label on the drum (Ex. 10) was removed accidentally at some stage either before or as it was delivered to Exclusive by WCH. Mr. Louie said he had not seen the orange label (Exhibit 8) before the incident and Mr. Chow Yun Fat had not seen Exhibit 10. Since it was useless as to its content, and insignificant in view of its size in relation to the drum. Exhibit 10 failed in its purpose. I accept the evidence that it was not on the drum at the time when Mr. Louie and Mr. Chow first had an opportunity to look at the drum, but in view of my findings as to the label that is really irrelevant - i.e. it was almost valueless in itself.

116. Dilution reduced the degree of toxicity but did not eliminate it. The adopted method of applying diazinon to mix with the water was a "hit-and-miss" system. The cup used to add the diazinon was not a small measure but a considerably larger one. In these circumstances human nature is such that more diazinon is likely to be added than less. The application had to be effective. The absence of any real or proper sense of the risks involved would serve only to encourage a more liberal measure. The practice of using the buckets served to illustrate the cavalier approach. Whereas such operations using a potentially harmful chemical called for a strictly disciplined approach and application, there existed, despite the absence of a disciplined stewardship by the suppliers, sufficient knowledge and experience to create a responsible and dutiful system so as to reduce the risks to all concerned, to an appreciable extent. It was not however utilised. Certainly if it had been, far greater care would have been taken in respect of its employees by "Exclusive". If that had resulted, common sense dictates that there would have been a greater awareness of the wider risks, and training and change in practice to reflect it.

117. The contract for the operations at the 'APA' was carried out in accordance with a timetable. On the various days, Saturdays or Sundays, different areas were subjected to treatment. These were set out in the schedule but Mr. Chow's evidence was to the effect that on the day they would treat the areas directed by the security guard at the APA. Work started at about 9 a.m. and Mr. Chow's recollection is that it was at about that time that he was told that the operation was not to be conducted inside the rehearsal hall because it would be used by people. When people would be coming in for that purpose, and what routes they would use, were all unknown to Mr. Chow. Even with Mr. Chow's knowledge of the risks involved it is a little surprising that he did not take steps to ensure that members of the public, and specifically the orchestra members, did not venture into the vicinity of areas of operation. Both he and Mr. Louie took the view that it was for the occupier/customer to clear the premises of people. Earlier correspondence in 1986 did not carry any advice to the occupier to ensure the premises were vacant of people. Even if it was deemed unnecessary for the complete evacuation of the multi-use premises to take place (as Mr. Louie and Mr. Harper seemed to think) it is clear that certain precautions would have to be taken to prevent people coming into open areas where the operation was taking place, and into those where the material would drift unpredictably. Although the APA had some sense of this (see memorandum of 27 March 1987) there is no evidence of 'Exclusive' having, at any stage stipulated the conditions under which the operation would be carried out. Nor was there clearly in Mr. Chow's mind the circumstances in which it would be deemed prudent to stop all operations. The fact that a rehearsal was to take place was something of a surprise. It was certainly not, on the evidence, a circumstance which had occurred on a previous occasion.

118. Good and safe practice required clearance of the area to be treated. That was to be the responsibility of the APA's employees. When the areas are clearly self-contained units it is not difficult to ensure segregation from the public and sealing of the rooms. In Mr. Chow's view, two hours was the time to elapse before people were allowed back into a treated area. It was not possible to segregate effectively areas normally open to public access such as foyers, passages and the atrium. For these regions commonsense dictated that no members of the public should pass through them whilst they were being treated. 'Exclusive' needed to stipulate this and the APA needed to carry it out if and once it was so required.

119. Although one of Mr. Chow's operators, Mr. Lo Kwok Wing, did not give evidence during this trial there was in evidence a deposition made by him in proceedings in the U.S.A. against Velsciol Corporation. I have found that evidence useful confirmation of some of Mr. Chow's evidence and of the procedure adopted. It has not been tested by cross-examination by counsel representing the parties in this case and I bear that in mind in my approach to it Diazinon was the only chemical used by Exclusive at the time of the incident in 1987. It was provided to him and his colleagues by Mr. Chow, and there were no markings or labels on the plastic containers in which the chemical was supplied for the operators' use.

120. It was mixed in proportions of 2 ounces of diazinon to a gallon of water. Operators had a mask with two filters to cover nose and mouth-these resembled the gas-mask type of respirator described by some witnesses. There was no other protective clothing. Although he spoke of the chemical being fogged I am satisfied he meant misted but he also spoke of spraying on the walls. They were divided into two groups, each with a mister and two pumps, the latter for spraying. He confirmed that spraying was not carried out when people were in the building, and that it was not proper to spray when people from the orchestra were in the building. The operators were led by the APA security staff to the places where the spraying was to take place. He worked until about 10 or 11 a.m. when he was told to stop because "somebody has inhaled and is sick" - this must have been after 11 a.m. By then of course he had been working at the APA for at least 2 hours. It was the practice to dispose of surplus diazinon at the end of a job, via the sewage. That itself is a practice which indicates a general lack of proper concern for people at risk. Mr. Chow himself readily conceded [Day 23 p.65] that he did not know how to cope with a situation in which someone became ill from inhaling mist or fumes from the chemical.

121. In summary, Exclusive knew of the risks associated with misting diazinon in relation to their employees and members of the public. They had no sound safety system. There was no planning of the operation to ensure that if a problem did arise or might arise, it did not continue in circumstances in which anyone could conceivably be at risk. Once aware of the imminence of a rehearsal it took no steps to safeguard the position. It was not a proper discharge of their duty of care to rely on security men to designate the areas to be treated and prevent anyone coming into contact with misted diazinon. There is no evidence of an unequivocal statement as to how the operation should be conducted so that all occupants were protected. Since I find that the foyer outside the rehearsal was being treated and the evidence of observation of this happening is reliable, it indicates that 'Exclusive' had done nothing themselves to prevent people entering the open area, as they had to, in order to enter and leave the rehearsal hall by that route.

122. Some information as to the risk to staff and other occupants of the APA must have been communicated to lead to the APA's memorandum of 27th March 1987. The timings and days arranged for the operations reflect some concern. This was however far from adequate.

123. There was no emergency treatment plan devised for or even suggested to the APA. As far as any notices are concerned, warning people to stay away from the operations, this was an obligation fairly and squarely on 'Exclusive'. They failed in that regard. The notices which it is said were supplied by the APA did not provide sufficient warning or prohibition. 'Exclusive' should have satisfied themselves that such notices gave proper recognition to what was to be carried out. The form of it ought to have been such as to remove any question of choice. "Keep Out - DANGER" was the unambiguous message to be conveyed.

VII The Hong Kong Academy of Performing Arts [the "APA"].

124. As occupiers of the premises in which the pest control operation and the orchestral rehearsal were being conducted, the "APA's" duty was very clear - to take all reasonable care to ensure that no harm befell any invitee, and that the premises were reasonably safe for the purposes for which the persons were invited or permitted to be there.

125. The "APA" knew that the pest control operation involved the use of toxic substances. They had asked "Exclusive" to supply the identity of the chemicals to be used, together with information as to fire and explosion hazards, and toxicity (oral and inhalation). That request was consistent with a recognition of their duty of care as occupiers. Information was supplied in a technical form. That concerning diazinon can be found in Vol.5C p.1 160. Significantly, at the bottom of the date sheet, is stated, in small writing, "The pesticide label is your source for information on the .... hazards etc. of a specific formulated product." That was less than helpful unless "Exclusive" in fact provided the label. But the label of course was deficient. Whilst I do not consider that what "Exclusive" sent to the "APA" fully answered their request, there was no further inquiry by the "APA". There should have been since they ought to have appreciated that they did not receive a satisfactory answer to their request. I have to leave open the possibility, that they obtained oral information from "Exclusive" in relation to hazards to occupants of the "APA"; alternatively the "APA" obtained information from some other source or even within their own administration. The memorandum of the 27th March 1987 to which I referred earlier is an important document. Although there is implicit in the submissions on behalf of the "APA" an invitation to construe the contents of that memorandum in such a way as to ignore its plain language, I have little difficulty in seeing it as a plain and sensible statement in the interests of staff and other occupants [Vol 5C p.1213]. It related to a routine pest control exercise on a public holiday. It said:

"For safety's sake, staff and students are advised not to come back to the Academy that day as the chemicals used .... may be harmful to human beings."

Whilst I consider that the form of the memorandum is not strong enough - it should have been prohibitive - it clearly reflected knowledge as to the potential dangers to persons within the Academy. The language is strong and clear enough however not to be capable of being interpreted as "do not wander around the Academy into areas where the exercise is being conducted."

126. The schedule of operations was already in existence [Vol. 5C p.1208]. It showed, incidentally, that at 5th February 1987, the intended date and time for the June service was Saturday 20th June at 2 p.m. This degree of planning must indicate that the "APA" was to receive these services when occupancy was nil or negligible and advance notice could be given to all concerned. The memorandum of 27th March 1987 gave advance notice of an exercise on the 6th April, a little over a week ahead. It is noted that the memorandum referred only to the pest control exercise in Chinese. The rest of it was in English only - a notable deficiency. The June exercise was rescheduled for 9 a.m. on Sunday 21st June in the schedule dated the 31st March 1987 sent by Mr. Louie of "Exclusive" to Mr. Fung Wing Yiu of the "APA". The timing of the exercises was changed to 8 p.m. to midnight for August, and 6 p.m. to midnight for September 1987 in Mr. P. Y. Fung's memoranda subsequent to 21st June 1987.

127. The double booking at the "APA" for the 21st June was a mistake and whatever was the system of management to prevent this happening, had failed. If the "APA" had reacted in time, it would have cancelled one or the other, probably the pest control operation. No system existed whereby the security staff at the "APA" or any other staff had a line of communication to the management to resolve the situation. Since the "APA" staff was not expecting the arrival of the orchestra it is difficult to envisage there being any notice on the door or glass walls to convey a warning. If there had been I am sure that neither the side door near the main entrance nor the harbour entrance which was a common means of entry for the orchestra would have been left open. No memorandum for the 21st June 1987 (in the form of that of the 27th March) has been disclosed. It is probable that there was none. There seem to have been a number of changes to the schedule. The memorandum of the 27th March is the only one in existence which predates the 21st June. Even if there had been a similar memorandum for the 21st June, I do not accept that it was posted for public benefit. It was directed to all staff and would have been circulated on that basis. One other reason persuades me to discard any idea that it was posted publicly and that is, given what happened on the 21st June and the prompt inquiries by the "APA" and "Exclusive" thereafter, such a memor andum, if posted publicly, would have assumed some importance and been retained, and reference to and reliance upon it would have been made specifically at a very early stage. There was none. The board described by Mr. Chow was wholly inadequate. There is no clear evidence as to its actual position.

128. The evidence of Mr. Juin illustrates the absence of awareness that the HKPO had made a booking, of any system as to the sequence in which areas of the APA were treated or to be treated, and of any lines of communication in the event of something unforeseen occurring. He and Mr. Chow were in conflict as to the stage at which the ground floor was treated Mr. Chow saying that it was treated first, Mr. Juin, that it was treated last. On this occasion, according to the schedule, the areas to be treated were atrium, foyer, Lyric and Drama theatres, (for fleas) throughout the premises indoors and outdoors (for rodents) and all catering facilities (for cockroaches and ants). According to his statement [Vol. 13W p.4330] and his evidence [Day 26 p.33-34] Mr. Juin was informed at about 9.40 a.m. on the 21st June by a staff member of the H.K.P.O. that the Orchestral Hall was booked for rehearsal; he had no record of any such booking. His reaction was somewhat strange. He says he had a short argument with that person, informed him that a pest control operation was being carried out and that it might not be suitable for the Orchestra to rehearse in the Orchestral Hall. His explanation for the use of the term "might not be suitable" was that the route to the Orchestral Hall would have passed through the area where the treatment would be taking place. He made no contact with the management. He said he told Mr. Chow's group not to treat the orchestral hall and the adjacent area. He added that the member of the orchestra said that it would remain inside the rehearsal hall. I find Mr. Juin's evidence unreliable probably owing to the lapse of time. I am satisfied that he did not inform Mr. Chow that certain areas should not be treated. He later said in his evidence that he was concerned, not with safety but with the obstruction to the work being carried out, and that it was the smell of the pesticide which was the problem, not exposure to fumes. Mr. Chow says he was told that a rehearsal would be taking place at some time. He did not say he was told specifically not to treat certain areas because members of the H.K.P.O. would be passing through them and into the rehearsal hall. He relied upon the security guards to show them the areas to treat, and to prevent the orchestra members from coming into the treated areas. He had accepted of course that the best course was for the work to be carried out in an empty building, a view with which the "APA" can be taken to agree in the light of the memorandum of the 27th March 1987 and subsequent memoranda. I prefer Mr. Chow's evidence on this aspect. I accept that he and his teams were directed by the "APA's" security guards to treat certain areas, no information or instruction was given to them not to treat the areas through which Mr. Juin said that he expected the orchestra to pass. One other aspect of Mr. Juin's statement of some relevance and which does not ring true is his assertion that at about 11 a.m. on "Exclusive's" groups completing their operations, he signed their submitted worksheets to confirm completion. This does not fit in with Mr. Chow's statement that he stopped operations on hearing that some member of the orchestra had been taken ill, a fact not mentioned by Mr. Juin who goes on to indicate that not until after 11.25 a.m. was he aware of someone being ill as a result of "unidentified fumes." I accept Mr. Chow's evidence as to the circumstances in which the exercise was stopped. That seems in any event to reflect the common sense position.

129. The "APA" had not formulated any emergency procedure in the event of a person falling ill. This is likely to have been because no one expected any person to go anywhere near the treatment areas, or, put perhaps more appropriately, the "APA" did not expect treatment to be carried out in any area occupied by people either on a transient or, on longer-term basis. Since "Exclusive" had not called for evacuation of the premises during the treatment exercise, a course which they should have adopted, "APA" had formulated a half-hearted approach exemplified by the memorandum of 27th March 1987 - and it is doubtful if there was such a memorandum on this occasion. The "No Admittance" notices provided by Exclusive to the APA are arguably an indication that evacuation of the premises was required. I do not hold that view. Without an unequivocal requirement to the effect that no persons should occupy or be admitted to the premises unless wearing protective equipment, the "APA" would not be fully alerted. The notices could be seen as a means of reducing interference with the treatment exercise by other activities. In any event such notices as were displayed were inadequate in content and in their positioning. The "APA", however, knew enough to alert them to the possibility of harm - they had alerted staff to the potential on an earlier occasion - but had never translated this into effective measures for the protection of others.

130. Even if I were able to accept Mr. Juin's evidence as to what he told Mr. Chow, the steps he took were hopelessly inadequate. There should not have been any treatment of any part of the 1st floor foyer or the atrium or any areas through which the members of the orchestra might pass. Since the one person he says he spoke to, promised that the orchestra, as a whole, would remain in the hall, it was idle to assume that this was an effective preventive measure. He certainly did not suggest that he gave that person an unambiguous statement of the danger involved, nor did he check by entering the rehearsal hall and addressing the orchestra as a whole. Quite apart from the other aspects, this was one of the clearest failures to discharge the duty of care to occupants.

131. In their submissions the third Defendants complain that the Plaintiff's case as presented in opening and supported by evidence was more extensive than that pleaded. In particular it is contended that the following issues were not pleaded:

132. These can be dealt with shortly. They are, in effect, particulars of paragraph 9(a) (b) and (c). No Request for Further and Better Particulars was made by the 3rd Defendant. Furthermore, in relation to (a), the 3rd Defendants cannot claim to be taken by surprise. This was not the first occasion on which the pesticide operation had been carried out. They had had ample opportunity to see the mechanics of it and to consider it. The memorandum of the 27th March 1987, to which I have had cause to refer on a number of occasions, must have been premised, on some knowledge of the techniques of application. In the Contribution Notice of the 4th Defendants to the 3rd Defendants dated 26th November 1996 there were set out further particulars of negligence and/or breach of duty which the Plaintiff was entitled to adopt. All three issues ((a), (b) and (c)) were raised in that Notice.

133. The 3rd Defendants rely upon section 3(4)(b) of the Occupiers Liability Ordinance, as providing for them a defence to the Plaintiff's action in that they relied upon an independent contractor whose expertise and skill the 3rd Defendant did not possess. The section reads, "where damage is caused to a visitor by a danger due to the faulty execution of any work of .... maintenance ..... by an independent contractor employed by the occupier, the occupier is not to be treated without more (my emphasis) as answerable for the danger." As I have found there was certainly "more" in the nature of the 3rd Defendants' own negligence and breach of duty of care.

134. The pesticide operation involved a special danger viz. poisoning by inhalation or ingestion. Applying the decision of the English Court of Appeal in Honeywill and Stein Ltd. v. Larkin Bros. [1934] 1.K.B. p.191, this was a hazardous operation and the 3rd Defendants, in procuring the work to be performed by their contractors, the 1st Defendants, assumed an obligation to the occupants of the APA's premises which was absolute, but at the least an obligation to use reasonable precautions to see that no damage or injury resulted from the dangerous operations. The 3rd Defendants had control over when and where the work was to be done. It knew its nature and risks.

VIII The Hong Kong Philharmonic Orchestra (H.K.P.O.)

135. The facilities for rehearsal at the APA were often hired by the Orchestra. The Orchestra Rehearsal and Recording Hall on the 1st Floor of the APA were regularly booked. Access to the premises by members of the Orchestra was often gained by the back entrance (which was nearest to the harbour) and sometimes by the side door of the main entrance in the internal access road.

136. Prior to the 21st June 1987 the H.K.P.O. had not experienced any difficulty in relation to the facilities hired. At no stage had it received any notice from the APA to the effect that there might be cleaning or pesticide operations being carried which involved any risk of harm or inconvenience to the Orchestra.

137. The nature of the H.K.P.O.'s hiring was such as to require the provision of the space, internal lighting and air-conditioning. The APA provided no venue staff. The safety of the premises for members of the Orchestra was entirely in the hands of the APA.

138. On the occasion in question it is clear that the APA made the usual provision. Members of the Orchestra legitimately used one or other of the two entrances. I am satisfied that there was no notice, placard or board so positioned as to alert any member of the Orchestra to any untoward activity. Any "No Admittance" board would not be effective. It was responsible for keeping people away from the working area and warning them fully. For all the reasons set out hitherto I am satisfied that the 3rd Defendants are not able to avoid liability simply by its delegation to the 1st Defendants.

139. Once it was clear that the H.K.P.O. arrival was unexpected - there was no written record of the booking available to the staff on duty at the APA and no one recalls any oral information to that effect - then either the H.K.P.O. should have been turned away or the pesticide operation should have been stopped immediately. There was no responsible management system to have enabled the proper and prudent decision to be taken. That was negligent and breach of the duty of care.

140. The hiring document had terms and conditions attached. None excludes the APA from liability for any negligence or breach of duty on the part of its servants or agents. Clause 25 entitles the APA to close the building or any part of it, or by notice to the hirer, cancel a confirmed booking.

141. The Orchestra's hire of the Orchestral Hall for the 21st June 1987 was confirmed by the APA's letter of 22nd May 1987. It also confirmed the bookings for the 2nd and 4th June. "Exclusive's" monthly pest control service for the 21st June 1987 was notified to the APA by a schedule dated 31st March 1987 which included dates for the services for the remainder of the year. What was clearly a double booking for the APA was not picked up by it. What the system was for avoiding any such potential clash, if there was any such system, was inadequate and failed.

142. The APA had by a memorandum dated the 27th March 1987, and signed by Mr. P. Y. Fung, notified staff of the APA that they and their students should not come to the premises on Monday 6th April 1987 as an "overall fumigation exercise" was to be carried out in the Administration, Academy and Theatre Blocks (carpeted areas). The phrases used included "For safety's sake" and "chemicals used during the course of the exercise may be harmful to human beings." It is not clear how effective that notice was in the direction in which it was aimed. It certainly did not go to the H.K.P.O. nor was it posted in a form, nor in a place, which was apparent to all visitors to the APA. There does not appear to have been a similar notice for the 21st June 1987. The evidence makes it clear that had the APA realised the clash, it would have cancelled one or the other, or would have made effective arrangements to prevent any part of the pesticide operation taking place on the 1st Floor level unless it was satisfied on full consideration of all the circumstances and information, that there was no risk of any harm to any visitor to the APA. The form of that memorandum of 27th March 1987 indicates to me that such information as the APA did have led them to conclude that it was not safe to have staff or students anywhere on the premises. Therefore it was not safe for members of the public or any other users of the premises.

143. The H.K.P.O. were unaware of any such exercise at the APA or any warnings in relation to that operation at anytime prior to their arrival. There was not displayed any notices in any form which would have alerted them. A notice which simply said "No Admittance" would not have put them on their guard. Those orchestral members who noticed a spraying or misting operation as they arrived in the APA, such as Russell Kan, who described the spraying on the same level (1st Floor) as the Orchestral Hall, were not suffciently concerned when they arrived at the premises. Although a representative of the management he was a player and the administrative link between management and players themselves, as Assistant Personnel Manager. When, at some stage during the rehearsal, he went out to investigate the smell and complaints generally, he acted properly. Miss Yip Wing-Sie was the conductor and she decided to take a break in the rehearsal. That may well have been inevitable given the level of discomfort of some musicians and the fact that it was an unpopular time for a rehearsal in any event. Between the two of them contact was made with the management and Mr. Jeff Hoard of the Players Committee contacted Mrs. Villiers (Roberts). The result was that the rehearsal was cancelled, and the Orchestra dismissed although by then several had taken it upon themselves to leave, by reason of the conditions when they were experiencing.

144. The Plaintiff's case against his employers is premised upon a breach of duty of care at three stages. I will deal with it in the sequence outlined by the Plaintiff's counsel in submissions.

145. The orchestra management's duty of care to the Plaintiff was to provide a safe place of work, to take all reasonable precautions to avoid his being exposed to risk of harm, and to provide all proper assistance and support in the event of his being harmed. The only representative of the management was Mr. Russell Kan, the violinist and even then his position was Assistant Personnel Manager. Had any competent member of the management been aware that a pest control operation was to be conducted at the same time as the rehearsal, and that it was to be carried out in the vicinity of or immediately adjacent to the Rehearsal Hall, he would have prevented the rehearsal taking place unless assured that there was no risk to anyone in the Hall, or coming to and from the Hall.

146. It is no disrespect to Mr. Russell Kan to say that I do not consider that he was equipped with sufficient experience or status within the system to be an effective management substitute on that day. There were 80 to 90 players arriving at different times and by different routes on that day. There was no co-ordination or collection point. He was not designated to check any aspect with the APA on arrival.

147. On his arrival he was confronted with 2 or 3 operators spraying in the foyer/lobby outside the Rehearsal Hall. That did not alert him. However, had there been present a manager, or someone with authority to make decisions on the spot, I am satisfied that a reasonable such person would have made further inquiries. If then told by staff of the APA what Russell Kan was later told when he went to inquire at the reception desk following the awareness of the fumes inside the Rehearsal Hall, he would have evacuated the Hall and either cancelled the rehearsal or obtained an alternative venue. As we know Mr. Kan, when he did go out to investigate, had to contact the management representatives by phone in order to get authority as to the steps to be taken. Miss Yip's reaction was that of the prudent person as soon as there was any reaction by any members of the orchestra to the fumes. She wanted to stop the operation if she could. [Day 27 p. 102]. By then of course the Plaintiff had been affected.

148. For the organisation and control of an orchestra of some 80 to 90 members, the management should have had an experienced representative who was able to make a decision on the ground. It knew that there was no management staff of any seniority at the APA's premises. Once aware of the operation on the first floor level it should have clarified the position before the rehearsal began, and as a precaution, evacuated the Hall. Once satisfied that no one had authority to cancel the pest control operation, it should have cancelled the rehearsal or obtained an alternative venue. It had failed to give Mr. Russell Kan sufficient authority to do what was necessary at the appropriate time. He was in my view very limited in what he was required to do. Given the management shortcomings in relation to what they required of him, I do not criticise him at all. He appeared to defer to Miss Yip, the conductor, who was not aware of the situation until it was, in effect, too late, and she cannot be faulted.

149. Undoubtedly there were pressing considerations for the rehearsal to continue. It was a practice for a recording session and the expense of bringing together 80 to 90 musicians is substantial. That probably operated on the conductor's mind as well as on Mr. Russell Kan's. It serves to highlight the need to have management immediately available. That is what it is for.

150. The lack of proper care and management runs through to the Plaintiffs admission to hospital though I doubt that it would have made any difference to the Plaintiff's condition, or to the speed with which he was conveyed or the treatment he received.

151. Although I have been helpfully referred to a large number of cases dealing with the law in relation to employers and independent contractors I have not found it necessary to recite these. It suffices to refer to part of the speech of Lord Tucker in Davie v. New Merton Board Mills Ltd. [1959] A.C. p.604:

"the employer may delegate the performance of his obligations in this sphere to someone who is more properly described as a contractor than a servant, but this does not affect the liability of the employer, he will be just as much liable for his negligence as for that of his servant. Such a contractor is entrusted by the employer with the performance of the employer's personal duty."

152. In the judgment of Parker L.J. in the decision of the Court of Appeal in that same case the extent of the duty of the employer had been succinctly stated:

"The duty owed by a master to his servant at common law can be stated in general terms as a duty to take reasonable care for the safety of his servants ... if the master delegates ... the performance of that duty to another he remains liable for the failure of that other to exercise reasonable care ... this principle holds good whether the person employed [i.e. employed to carry out the duty] by the master is a servant, a full-time agent or an independent contractor."

153. The 3rd Defendant, the independent contractor, and the 2nd Defendant, the employer, were both negligent and in breach of their duty of care as I have found.

154. Having examined the evidence of a number of witnesses relating to what took place within the rehearsal hall and outside after the decision to cancel it, I should make some more comments about the evidence of Mr. Roger Manners on which the Defendants place some reliance. In the first place, I consider that reliance misplaced. I received from Mr. Manners the clearest impression that he was totally unconcerned with the rehearsal that day although he may have participated in it to a small extent. He was uninterested in what went on around him and was totally absorbed with his own interests, and was dismissive of the events of that morning. It was, to judge from his recollection and attitude, hardly different from any other occasion. His evidence just does not blend with that of any other witness. He had a very controlled, rigid, detached approach to giving evidence. As soon as the ten-minute break was called he decided to leave as quickly as possible by the route he used to enter - the backstage door. He said "I was in a hurry to get out because I was worried that maybe there was something poisonous in the air, so I went fairly quickly." There is no doubt that Mr. Manners was concerned to get out of that rehearsal hall as fast as his legs would carry him. He was not interested in waiting to find out whether the rehearsal would be resumed. I think that since he smelt nothing untoward, his concentration was upon his Japanese and when that concentration was disturbed, he was more interested in deciding whether or not he wished to stay. I do not place any reliance upon his very limited evidence of the events of that morning and am not prepared to draw an inference from it.

155. It is always difficult for people to recall events of a year or two previously, unless etched into their memories by a particular detail. For people to recall events of a decade earlier, even if aided by contemporaneous records or a dramatic detail, it is a struggle of varying dimensions. Conflicting versions, inconsistencies in the testimony of a particular witness, omissions in recall, surprising additions to what had been stated on an earlier occasion, always call for great care in assessment and sometimes give rise to a sceptical approach. But they are only to be expected in the circumstances. A witness may be extremely reliable on some aspects and yet quite unreliable on others. Some testimony may have to be rejected in total even though it is apparent that the witness is doing his or her honest best to state the position. Other testimony may be exaggerated because time and other factors have distorted the picture. I have not found it necessary to state in this judgment a detailed and analytical assessment of each witness's evidence. Some testimony is more relevant than others. I have used what I accept as relevant and convincing evidence, to establish the picture of events of that morning on the basis of probability; in some matters the picture is one of certainty.

IX The Plaintiff and his personality

Back ground and early life.

156. The wideranging examination of virtually each and every factor, even those of minimal consequence, by some of the Defendants, has led to a review of the Plaintiff's life from the day he was born and much argument and analysis has emanated from professional persons instructed by these defendants to suggest that there are features in his early life of great significance.

157. He was born in the United States of America in 1950 of parents whose careers were modest, but whose desire to do the best for their children - an attribute well recognised and demonstrated in this intense society - must have found great reward in his eventual career. His birth was premature. He had a number of childhood ailments, few of them of more than passing note. At the age of seven years he had an operation on his left eye for strabismus, a condition that was attributed to his premature birth. Within that context it was an unremarkable condition.

158. The earliest medical records available are those of his physician, Dr. Pugliese, in 1968. In a letter relating to his admission to the Presbyterian hospital, Pittsburgh, in that year, the following childhood medical history is referred to: "A long-standing history of allergic manifestations with asthma and rhinitis dating back to 1960. He had been receiving dust and grass vaccine once a month and also ragweed vaccine once a week .... during the hay-fever season. " Hay-fever sufferers will recognise this picture. "During the past fall (1967) he had been on a steroid for a short period. He does have a history of eczema as a child. In the past he has had pneumonia on one occasion and a streptococcal sore throat 8 years ago." There is also reference to the muscle surgery in his left eye and tonsillectomy.

159. I am satisfied that this record of his medical history, taken as it was when he was 18 years of age, at or prior to his 8 day period as an in - patient, is far more reliable than the details he gave to medical practitioners and recorded by them almost twenty years later. There are letters from Dr. Pugliese dated 1989 and 1993 confirming that he never treated the Plaintiff for asthma or pneumonia during the period in which he acted as his physician (i.e. up the age of 27, roughly 1977.) Some of Dr. Pugliese's patient record cards have been supplied covering the period July 1968 to September 1973. A number of entries are indecipherable having failed to copy well in the process. However, there are numerous references to grasses, dust and vaccine. Those were treated as allergies. None was described as an asthmatic attack. It is not unusual for physicians when treating allergies or allergic reactions, even if producing a bronchial constriction (or asthmatic reaction) to describe them in the terms actually used.

160. There is also an entry for September 9th 1968 concerning a urine test which was negative for sugar and albumen. I note that on the 18th June 1987 - three days before the incident at the Academy, a physical examination was carried out by Dr. Chan Ping Chi. It included a urine test. Again it was negative for sugar and albumen.

161. As will be seen later, much was made of the diagnosis of diabetes mellitus in 1994. I will revert to the admission to the Presbyterian hospital in 1968 in this context. The reason for admission was given as high blood pressure, kidney infection and diabetes. It is apparent that the question of diabetes had been raised by the Allegheny Valley hospital where he had a glucose tolerance test. There is also reference to pneumonia at 18 months, upper respiratory infections and an ear infection at about 8 years of age. There is no reference to asthma in the history given, only to allergies.

162. The abnormal glucose test was explained in the record [14 M(2) p.5200]. The letter of discharge to Dr. Pugliese mentioned impressions of labile blood pressure and allergic state. The glucose tolerance tests were normal, even following the administration of prednisone. "I think we can safely exclude diabetes at this time." Although the possibility of future, hypertension was raised it clearly occasioned no concern and no medication was prescribed.

163. In February 1970 he was again admitted to the Presbyterian hospital because of a sudden onset of a right frontal headache which medication could not relieve. The discharge summary says the headache gradually disappeared of its own accord but investigation did reveal an enlarged pyocele sphenoid sinus. It was treated with antibiotics and duly cleared. The link between the pre-admission headaches and this condition is strong. The headache may well have settled within hospital with the regime and rest. The two conditions are more than coincidental.

164. Glucose tolerance tests were again carried out. Nothing abnormal was found in relation to them.

165. The pyocele, probably infected and certainly inflamed was a sinus within the skull, behind the eyes. Given this background it would not be surprising if he and others were to consider it as a potentially serious condition requiring care and rest lest it re-emerge.

166. The Plaintiff was regarded as a sufficiently talented music student to win a scholarship to the Juilliard School in New York, in 1974 following graduation from Carnegie Mellon University, Pittsburgh in 1972 and a year in Switzerland at the Institute of Advanced Musical Studies.

167. There was an attempt at some stage, happily not pursued, to suggest that the Juilliard School was not in the top flight of musical academies. The argument looming on the horizon may have been that the Plaintiff's music talent was no more than average. The Juilliard School enjoys a world-wide reputation. It has the status of, for example, the Royal College of Music in London; Maria Callas held master classes there in the early 1970's when she was arguably at her zenith. He graduated with the first double major in timpani and percussion and from 1977 to 1980 he lived in Puerto Rico performing as principal timpanist with the Puerto Rico Symphony Orchestra, and as percussionist and timpanist with the Casals Festival Orchestra. The Defendants sought to make much of the circumstances under which he left the Puerto Rico Symphony Orchestra indicating that they illustrated significant flaws in his character which found an outlet in conflicts with management during his employment generally, and developed to the extent that by June of 1987 he had sealed his long term fate, regardless of what was to happen at the A.P.A.

168. The Plaintiffs own evidence about the somewhat volatile state of affairs in Puerto Rico in that three year period and the politico - cultural influences is to the found in the Transcript [Day 8 from page 20; Day 18 from page 4].

169. There was anti-American influence at work, some extremist elements in the management or organisation of the Orchestra, and he was owed money for his work for several weeks. I have read a letter written by the Music Director of the Orchestra for two years which confirms some aspects of this and is clearly complimentary to the Plaintiff. Of some minor importance is the Plaintiff's unchallenged evidence that he had a studio for his exclusive use during his three years with that Orchestra in which he kept all his instruments, could practise and teach. I did not find the Plaintiff's evidence incredible or even of suspect value. There are numerous letters which are in fact testimonials from guest conductors and principal musicians attesting to his ability and character during his time with the Orchestras in Puerto Rico. I reject any argument that his time there and his relationship with the management, demonstrated that he was a flawed figure or was suffering from any personality disorder. I accepted his evidence.

From September 1980 to 21 June 1987

170. Examination between these years has concentrated on his health and his relationship with the H.K.P.O. Some trivial matters have excited undue interest and have not merited the spotlight cast upon them. His periods of illness or injury during this time have involved sickleave and consequently some contact with the orchestra's management. It is logical and appropriate to start with his first contract with the H.K.P.O.

171. The first contract was for one year expiring at the end of August 1981. In January of 1981 the Plaintiff and Mr. Duffus, then General Manager of the H.K.P.O., were exchanging memoranda relating principally to the transport and storage of the Plaintiff's timpani and the use of the conservatory for practice. Mr. Duffus agreed to meet matters in principle including insurance of his timpani, a fee to be negotiated for their use by the H.K.P.O., and the need for practice facilities, pointing out that economics were a factor to be taken into account in view of limited funds. Facilities for practice were the first priority.

172. In mid-January Geoffrey Ko was writing, as Assistant General Manager, to the Plaintiff in relation to damage to the timpani belonging to the H.K.P.O. which was transported to the Caritas Hall (Caine Road) no doubt for the Plaintiff's use for practice. The inference to be drawn is that the Plaintiff had been demanding and critical, and somewhat unappreciative of the efforts of other to comply with his requests. He suggests that he was at least somewhat insensitive. This may be the case. The Plaintiff was at pains to explain the circumstances behind all this including his concern that the H.K.P.O's timpani was new, had been needlessly damaged, his own still had not arrived and that he needed reliable, adequate practice facilities. In the event the Conservatory's facilities proved inadequate in view of the fact that, of the times available, all save Saturday morning conflicted with Orchestra's rehearsal periods.

173. A contract was drafted relating to the hire of the Plaintiff's timpani when it arrived from America. This was unacceptable to the H.K.P.O. Further correspondence between the Plaintiff and Mr. Duffus related to continued practice facility, transportation of instruments, the shipping of his own timpani from Puerto Rico, and a loan to complete his performance and practice timpani, as well as the level of salary for any new contract. There were obviously proposals and counter proposals to try and accommodate the respective concerns. Both parties were advised by lawyers. It is clear that the state of and amount of timpani needed by the timpanist to perform his professional and contractual obligations was of mutual concern. Although I find some of the Plaintiff's expression and terminology strident I have to bear in mind that much correspondence in contractual negotiations in Hong Kong is of that nature, and regrettably so.

174. Towards the end of May 1981 Mr. Duffus was indicating his entire agreement with the Plaintiff but pointing out that funds were not available to meet his requests and a satisfactory solution was not likely to be reached by the end of the next season (1981-82). On the other hand the Plaintiff was setting out his professional frustration at not being able to give of his best by reason of the unsatisfactory position concerning the timpani he was required to practise and perform on.

175. The Plaintiff was in fact pushing at a firmly though politely closed door.

176. On 8 May 1981 the second one-year contact with the H.K.P.O., due to expire at the end of August 1982, was signed. The previous month, April, the Plaintiff visited Dr. John Lau with acute sinusitis and sick leave was certified for ten days from 30th April to 9th May 1981. Rest was advised. Apparently Dr. Ballantine had sent him to Dr. Lau - there had been a history of sinusitis with complications on one occasion. I have assumed this to be the occasion in 1970 when the infected sphenoid sinus was diagnosed at the Presbyterian Hospital.

177. Mr. Duffus' account is that the Plaintiff summoned him to a meeting at the City Hall without giving any advance reason, handed him Dr. Lau's sick note, said he was seriously ill, and would have to be off work for ten days and it would be the entire fault of Mr. Duffus if anything happened to him. This was, according to Mr. Duffus, followed by a "frantic" call from the Plaintiff's mother (in the U.S.A.) saying the Plaintiff had informed her that he was desperately ill and she would hold the H.K.P.O. responsible if any harm came to him. The Plaintiff dealt with this aspect of Mr. Duffus' evidence at Transcript Day 8 p.81-85. Not surprisingly there is a somewhat different colour to it. He agreed that he may well have said he had or could have a serious problem with the sinusitis but denied that he summoned Mr. Duffus and that Mr. Duffus so responded. I doubt very much, having seen and heard Mr. Duffus, that the would have responded in the manner described, particularly since no advance reason was given.

178. I think this is an event which has coloured the imagination somewhat, although Mr. Duffus appears to have made a note of a meeting he had with the Plaintiff shortly after this incident. [Vol. 18Q p.6034-6037.] That note was sent to the Board of Management, dated 9th June. Although the note goes into a good deal of detail about the Plaintiff's requests which have already been referred to, and which Mr. Duffus had stated he regarded as reasonable, the obstacle to meeting them being shortage of funds, what really prompted his note was irritation at the fact that the Plaintiff had addressed the General Committee on the 14th May and then the Orchestra itself one the 18th May. Mr Duffus said that the Plaintiff had been critical of the management of the Orchestra in his address to both the Committee and the Orchestra. It appeared that one of the bones of contention was the Plaintiff's support for the then Music Director. There may well have been some politics involved in this issue but Mr. Duffus introduced into his note a number of aspects of his contact with the Plaintiff and expressed those concerning timpani - the Orchestra's and the Plaintiffs - and practice facilities, giving examples of what he described as egocentric behaviour. As far as the topic of timpani, as a very broad subject is concerned, Mr. Duffus' approach to the Board was in conflict with his own professed acceptance in principle of the Plaintiff's proposals and arguments. No copy of this was sent to the Plaintiff for him to respond to. Mr. Duffus undoubtedly took umbrage at the Plaintiff's contact with the Committee and the Orchestra, and I consider the note or memorandum was in part, his way of "getting back" at the Plaintiff.

179. The Plaintiff may well have been less than tactful. He may even have been something of the "bull in the china shop" but the note was very much one side of the story. There is another but I decline to enter into a detailed review of this because of the trivia involved and the fact that a clash of personalities had developed. The Plaintiff had been educated and received his formative training in another perhaps more brash and assertive culture. His experience in Puerto Rico had not, in the end, been the happiest. I am sure he found the constraints of the management of the H.K.P.O., irksome. He lacked the experience and finesse, outside his musical talent, to know how to cope with it.

180. Also within that note is recorded the Plaintiff's emotional reaction when he raised his past experience with the management of the Orchestra in Puerto Rico. Unless one was present at that meeting as an independent observer I do not consider an objective view can be formed.

181. Early into the second contract the practice facilities for the Plaintiff had still not been resolved on a long term basis and "ad hoc "arrangements were unsatisfactory. By January 1982 however the Caine Road facility was available. In February the Plaintiff was writing to Mr. Duffus setting out his pleasure that the matters of the shipment of his timpani, the practice and storage facility, the purchase of new timpani for the Orchestra and the transportation of the Orchestra's timpani had been resolved. He then went on to set out arguments in support of a requested increase in salary, as well as the difficulties and losses which he had sustained. The letter has the influence of a legal hand behind it. I detect a lawyer's terminology and somewhat abrasive approach. The arguments, Although on the face of them somewhat pompous or conceited, are perhaps no different from those a lawyer or trade union official might advance on behalf of client or member respectively.

182. Whatever may or may not have been the reaction of the management to this letter, a new contract was signed about two weeks later. The contract was for two years until the end of August 1984.

183. In March 1982 he had a hospital stay of unknown cause and sought and obtained an increased daily allowance to provide for a higher protein diet during a tour the Orchestra was to undertake. This was accepted. In October 1982 he was certificated for sick leave for 23 days by a Dr. Frances Chan. The reason is not stated.

184. April 1983 saw a further occasion when the management agreed to increase the daily subsistence on tour to provide for the Plaintiff's high protein diet following a recommendation by the Bonham Health Centre. However in a letter dated 8th April 1983 [18Q - p. 6048]. Mr. Duffus took the Plaintiff to task because on the occasion of a concert, he had the temerity to inform the conductor that there was no percussion player on stage. The Plaintiff had not followed the proper protocol and Mr. Duffus said that the conductor concerned, Kenneth Schermerhorn, was upset at the direct approach at a time when he was composing him self to go "on stage". The Plaintiff said in evidence that no one was clear about the procedure to be followed but that he did what he thought was necessary in the circumstances. This seems to be an isolated incident. It is quite trivial in the overall picture. I cannot see how it is relevant to any issue in this case.

185. The 3rd May 1983 saw him requesting one days sickleave. He was delayed returning from the U.S.A. in early September 1983 because the contracted pneumonia. It appears he was one week late for the start of the new season. In November 1983 he sprained a ligament of his right foot and was off sick for 4 days. The next month he missed 6 days of rehearsals when receiving some counselling at St. John's Cathedral. The background to this was the departure of a close friend from the Orchestra and from Hong Kong which clearly upset him. I did not consider it necessary to explore the circumstances and background to this in an action of these dimensions and proportions. I could not see its relevance. I still do not see its relevance and regard it as one of these matters which excited the curiosity with no application to any discernible issue.

186. Sinusitis returned in January 1984 and he was away from work for one week from the 7th. On the 25th January he called in at the management office asking for a day off "sick". There is no record of why or what resulted. In mid-February he was rebuked in writing [Vol. 18Q - p. 6060] by Mr. Lee Bo-Luen, the Assistant General Manager, for not giving the assistant timpanist sufficient notice that he was required to play in some concerts. I see no follow-up to this and do not know if it is regarded as a serious breach of discipline. It was based on a complaint by the assistant timpanist. That may or may not have been well founded but this matter does not seem to feature with any significance.

187. By the end of 1984 he had bought an apartment in Universal Towers. He was now a married man. In April he had received a further contract from the H.K.P.O., this time of 3 years until the end of August 1987. Whatever the exchanges with the management prior to April 1984 they can have been of no consequence in view of the fact and length of the renewed contract.

188. The move to Universal Towers revealed the availability of a small practice facility in the same building; Mr. Duffus supported the Plaintiff's request for this and was authorised to negotiate for a lease. This was signed and the facility superseded that at Caine Road.

189. Nothing seems to have excited attention for nearly two years when in late October 1986 he injured his wrist lifting a heavy air conditioner. I will return to that.

190. From 1984 onwards, the Plaintiff was closely involved with the "Young Audiences Educational Programme" being developed on his initiative through the good offices of the management of the orchestra. [Vol. 19Q p.6123] He was extending to Hong Kong a highly beneficial experience developed in the U.S.A. The concept got off the ground in 1986. An article in the S.C.M.P., sometime in 1986, paid tribute to what was being done. The Plaintiff made no attempt to hide the fact that he held concert classes at his studio in North Point. There was no reason in my view why he should. This was the practice studio leased for his benefit by the H.K.P.O. management. In November 1984 he had applied to register his business, Phillips Asia Percussion Enterprise. There is a form for schools wishing to participate in the programme to be sent to the Plaintiff at the address of his business, clearly stated at the bottom of the form. [Vol. 19Q. p.6130]. No one seems to have thought it necessary to take the Plaintiff to task for using the practice studio for this programme, nor for running a business in conjunction with it. All this comes much later in the form of a concerted attempt to discredit him following the event of the 21st June 1987 and then in the course of the consequent litigation. 1986 also saw the visit of the H.K.P.O. to Korea for the Asian Games [See Plaintiff's evidence Transcript Day 6 p.25-27]. The Plaintiff was to the fore in ensuring that the Orchestra and its instruments were fully covered whilst in Korea. Someone had been astute enough to recall that North and South Korea were still technically at war with each other despite the truce at Panmunjom.

191. Reverting to the wrist injury of October 29th, 1986, the Plaintiff saw Dr. Hodgson at the Canossa Hospital after seeing other doctors and physiotherapists. His forearm was immobilised in a short arm plaster. This was to remain for four weeks. Recovery to the level whereby he could play from 15th February was anticipated. The matter was somewhat complicated by the fact that he decided to visit the Frankfurt Music Fair in connection with P.A.P.E. and, coincidentally, a doctor who was a specialist in hand injuries. The visit took place between the 6th and 14th February i.e. before he was certified fit to return to work with the orchestra. The consequence of the visit to the German specialist was confirmation of Dr. Hodgson's advice (in contrast to that of another doctor) that it was correct to re-start on the 15th February. A new physiotherapy regime was implemented. No one under estimated the significant handicap of such an injury. Mr. Crabtree's letter of the 26th February demonstrated his appreciation of the concern the Plaintiff must have felt at being out of action for 3-1/2 months. Although the trip to Germany was made during a period of sick leave, his salary was stopped for the week whilst he was out of Hong Kong because he had no permission to be out of the territory.

192. A further 2 year contract expiring on the 31st August 1989 was signed by the management of the H.K.P.O. and the Plaintiff on the 13th February 1987. By reason of the contents of the Plaintiff's letter of 20th February 1986 (which had been answered by Mr. Crabtree on 26th February 1986 as referred to in the previous paragraph), the management was well aware of the existence of the Plaintiff's business and the timpani Patent aspect, as they had been earlier.

193. On the 18th February Dr. Chan Ping Chi carried out a general medical examination on the Plaintiff. It was straightforward. A urine test was included. There was no sugar or albumen.

194. About one month later the Plaintiff was admitted to the Canossa Hospital for treatment for an injury, the nature, cause and circumstances of which are quite irrelevant to this case. He was discharged home two days later. Attempts were made by counsel for at least one defendant to investigate this matter. Although I was from the outset dubious as to its relevance I allowed limited cross-examination. As matters wore on it became clear to me that it had no conceivable relevance and I declined to permit any further attempts to explore it.

195. On the 5th April 1987 certain tests were carried out on the strength of his injured wrist. They showed that his right wrist grip was now stronger than the left and pinch was being maintained from the previous test as equal.

196. The only other matters of note in 1986 and the early months of 1987 concerned the timpani mallets. In July 1986 his patent had been registered in the United Kingdom and he entered into an agreement with a company, through his solicitor who was a director of the company, for the development and marketing of his designs, on a 10% commission basis. As appeared earlier he went to the Frankfurt Music Fair in February 1987 obtained some agency agreements for the supply and sale of musical instruments, and in relation to Zildjian, signed a confidentiality agreement for the production and sale of his timpani mallets. [Transcript Day 8 - p.137-139.]

197. On the 26th May 1987 the Plaintiff was invited by the Percussive Arts Society International Convention to conduct a timpani at its Convention on the 29th October 1987 in St. Louis, Missouri. The only cloud on the horizon was the landlord's notice terminating the tenancy of the practice studio at Universal Towers as from the 31st October 1987.

198. The early summer of 1987 gave no hint of any disaster or problem, self-induced or otherwise. The Plaintiff's musical interest and business outlets were developing on lines which must have led to an optimistic outlook. Of course the injury to the right wrist had put him out of action for several months. Such an injury, and it was clearly a serious sprain, needed careful treatment and recovery. This man's hands were his professional fortune. As the summer solstice approached no reasonable man would have suggested that the Plaintiff's personality and/or his relationship with his employers, and his health would be likely to cause, individually or collectively, a slide into catastrophe.

199. Then came the inhalation of pesticide on the morning of Sunday 21st June 1987 which resulted in his being taken by ambulance to the Tang Siu Kin hospital.

X The early medical picture 1987-1989

A. Hospitalisation in Hong Kong

200. When the Plaintiff was transferred from the Tang Siu Kin Hospital by ambulance and in a wheelchair still breathing through an oxygen mask, a diagnosis had already been made by the Emergency Unit at Tang Siu Kin of "Insecticide Inhalation". Written on his records there was "History of Asthma with treatment of steroid before. "He had complained of shortness of breath and salivation. His general condition was good, his air entry was fair with diffuse expiratory rhonchi. There is some uncertainty as to whether the entry, "salivation", was positive or negative. There was no cyanosis.

201. This was the information available to Dr. S. Y. Chan who received him at the Canossa. The Plaintiff there complained of "chest tightness, burning in his eyes, a choking feeling, followed by difficulty in breathing, paraesthesia of fingers and toes, (raised) nausea and sweating. He was in Distress, his eyes were (very) congested, his respiration rate was raised. Dr. Chan's diagnosis was of an asthmatic attack, ("? insecticide") and hyperventilation.

202. The next day Dr. Chan's notes include "Central chest pain worse on deep inspiration and cough." He was anxious but there was good air entry and his pupils were normal and reactive.

203. On the 23rd June from one of the Mr. Fungs of the APA, Dr. Chan was told that two organophosphate insecticides had been sprayed at the APA, one of which was diazinon (neocidol).

204. Sometime on the 23rd June the Plaintiff seemed less willing to cooperate with Dr. Chan although it is apparent from his notes that he was able to settle him somewhat and obtain more of his past history. As a result of some discussion - the exact text of which is disputed - Dr. John Simon was consulted the next morning (24th June).

205. Further notes by Dr. Chan, on the 23rd June record the Plaintiff's complaints; he was not sleeping properly, felt "funny", could not control his muscles properly and his heart was pumping up and down. Later the same day further it was noted that Dr. Chan requested a cholinesterase test, for the first time, recorded no neurological deficit and that the Plaintiff refused referral to a psychiatrist.

206. The letter of referral from Dr. Chan to Dr. Simon included the following diagnosis "inhaled some? insecticide gas ...... resulting in bronchospasm." It is important to bear that in mind. It was consistent with the diagnosis of Dr. Cheung in the record sheet. Although Dr. Chan was concerned about what he saw as an inconsistency between his own findings neurologically and those of Dr. Simon which seemed to cause him to shie away from an acceptance that there had been insecticide poisoning, he was prepared to confine his emphasis to an asthmatic attack - his subsequent records of his diagnosis are entirely consistent with his initial, tentative diagnosis in that letter of referral.

207. The form requesting the cholinesterase test also dated the 23rd June stated - "Insecticide poisoning". The letter to the consultant pathologist stated "alleged to have inhaled (two identified pesticides) both organo-phosphate insecticides of? amount." A request for a second cholinesterase test stated as the diagnosis"? Mild organo-phosphate poisoning." Both requests included in the information "Inhaled insecticide".

208. On the 24th June 1987, the same date as the second request for a cholinesterase test, Dr. Chan wrote to the Industrial Health Department a highly responsible and commendable action, heading his letter "Insecticide Poisoning at Academy of Performing Arts, Wanchai" and referred to the admission of the Plaintiff to the Canossa Hospital "after inhaling some insecticide gas". Dr. Chan in giving evidence sought to suggest that this was merely a letter to alert and that he did not believe that there had been insecticide poisoning. After a lapse of the years, and against the background of the current dispute, and his own concern about what he saw as inconsistencies in the neurological testing, I think he has done himself an injustice in this regard.

209. The next day, Dr. Chan wrote to the neurologist Dr. Ho stating that the Plaintiff "had inhaled some insecticide fumes containing (two organophosphates) resulting in bronchospasm". On the 26th June he wrote a medical report at the Plaintiff's request. It included the following:

          "----for treatment of bronchospasm after inhaling insecticide (chlorpyrifos and diazinon)."

          "Diagnosis was bronchospasm due effect of insecticide."

The word "irritant" used to qualify "effect" had been crossed out. In the light of Dr. Chan's evidence I do not understand why it was crossed out as he clearly indicates that "irritant" was one of the effects of the insecticides. Before passing on to Dr. Simon's findings it is to be noted that no cholinesterase test was requested until the Plaintiff had been in the Canossa for two days. Dr. Chan said this was because he did not think it was a case of organophosphate poisoning. This is not a point for criticism since the treatment of the Plaintiff by the hospitals is not subject to that form of scrutiny. Nonetheless the cholinesterase test which is useful, though not necessarily diagnostic, may have more significance if carried out at the earliest possible moment. Whatever doubts Dr. Chan may have had, the initial diagnosis by the Tang Siu Kin Hospital had been "insecticide inhalation".

210. On the 23rd June 1987 Dr. John Simon, following a relation of the symptoms or signs by the Plaintiff and a consideration of his past medical history stated:

"These being suggestive of mild organophospliate poisoning. There is no doubt however he had a panic attack super-imposed with alkalosis re-blood gases and numb finger."

211. Clearly from the remainder of his notes Dr. Simon was optimistic as to the recovery but posed an important question:

"Are there some people whose cholinesterase are easily affected by anti-cholinesterase?"

He also ordered a number of tests to be carried out.

212. The next day Dr. Simon carried out a further examination with specific regard to some neurological tests. The previous day he had regarded his neurology as normal, but this time there was some evidence of deficit - "Balance said to be reduced - seem a bit wobbly and Romberg positive. Coordination appears very much reduced." The neurology was otherwise normal. Dr. Simon felt however that there was a "tremendous supratentorial element here." In common parlance this is a substantial psychological overlay. As a safeguard he ordered further tests to eliminate possible diagnoses.

213. Neither Dr. Chan nor Dr. Simon held the view that the Plaintiff was other than honest in his relation of events and performance of tests. There was no suggestion of malingering - any exaggeration was an unconscious factor. Dr. Chan concluded that the Plaintiff had suffered an asthmatic attack triggered by the insecticide exposure. He was not able to accept that his diagnosis of bronchospasm caused by organophosphate poisoning, was in fact, a valid one. In my view that is a distinction without a difference. It was not a distinction which Dr. Simon or Professor Kumana sought to make.

214. Dr. Simon stated that his view - that all the information, subjective and objective, hardened the suggestion that the Plaintiff had suffered mild organophosphate poisoning - was one he continued to hold.

215. On discharge from the Canossa, the Plaintiff says he vomited and this is recorded on his admission that same day (26th June) at the Adventist Hospital. It is also recorded that he felt nauseated, legs were twitching, his lungs were on fire and he was confused. He was discharged that day and his wife said he suffered from diarrhoea that night and on the advice of the Tampa Poison Control Centre returned to the Adventist the next day.

216. There Dr. Lui recorded similar information. The Plaintiff was "demanding" Atropine, the recommended antidote no doubt in accordance with advice from the Tampa Poison Centre. "Pam" and "cholinesterase" were mentioned, the Adventist Hospital appears not to have had either facility and accordingly he was referred to the Queen Mary Hospital where he came under Dr. (now Professor) Kumana's care.

217. Professor Kumana, with an expertise in the aspects of drug use in human beings and the treatment of asthma, reminded us that it was well-recognised in 1987 that there were cholinesterase inhibitors such as organo-phosphates. The Plaintiff was still showing the residual signs of an asthmatic attack when he saw him. In his view this had been no ordinary asthmatic attack; if the evidence of significant, above normal salivation, and frothing at the mouth was to be accepted, then something was causing a "vast excess of secretions". He dealt with the features which hardened his view that the Plaintiff suffered organo-phosphate poisoning which had induced amongst other effects an asthmatic attack or bronchospasm.

"---I have always felt that there is absolutely no question that he had an attack of asthma. I have always felt that, on balance, he was also suffering from organo-phosphorous poisoning. I do not think that all his features could be explained with a simple asthmatic attack, and that is the view I have had from the beginning." [Day 39-p.195].

When he was asked what he meant by poisoning he went on to say:

"---If patients suffer from symptoms, that is poisoning. Even an irritational attack of asthma is poisoning. We do not expect to become symptomatic from exposure to innocuous substances. I think that even once the asthma has occurred due to irritation of a noxious substance, that is exposure to a poison."

I regard his statements as definitive. The approach and contention of certain Defendants that the irritant effect of the organo-phosphorous substances did not constitute a poisoning struck me as flying in the face of logic.

218. When asked to outline the process producing the asthmatic reaction, Prof. Kumana explained:

"I believe that there would have been a dual stimulus that provoked the asthma; one, that there was an irritant, noxious irritation; and secondly that I think there probably was organo-phosphorous, organo-phosphate compounds involved that provoked the bronchospasm that increased bronchial secretions, and also caused some of the other effects in terms of increasing secretions from orifices. So I think it was a dual mechanism involved." [Day 39 - p.196].

I reject any lurking suggestion that the Plaintiff may have been simulating or exaggerating the asthmatic attack or bronchospasm. Anyone who has experienced himself a serious asthmatic reaction, or who has observed one, will know how the anxiety of the sufferer is increased; over the last few years, as a matter of general medical knowledge, the incidence of asthma, provoked by a variety of substances has increased dramatically - it is still potentially fatal. Furthermore increased anxiety is a feature of organs-phosphate poisoning.

219. Before I go on to consider the evidence concerning other possible or certain effects of the inhalation of pesticide I want to deal with a matter which at the end of the 40th day of this action called for a realistic approach on the part of all defendants.

220. Prior to the commencement of this action the Plaintiff's lawyers had submitted to the Defendants a substantial list of matters which they were invited to agree with a view to saving time and cost, and crystallising the issues to be resolved. The Defendants in general were unable to make any admissions which were likely to achieve the objective. In order to see if some basic matters and facts could be agreed, and to start the 'ball rolling', I drafted twelve matters in the simplest of forms, to reflect what I understood to be more or less common ground. The first Defendants made some positive response. After a short time some minor contributions were made to it by some other Defendants. The eleventh and twelfth draft admissions, somewhat to my surprise, proved unacceptable. In not accepting those two statements, the Defendants concerned were in effect contending for the possibility that for some reason the Plaintiff had, unrelated to any substance or quality of air, induced in himself a coughing fit, shortness of breath and an extreme asthmatic type reaction which caused him to be put on a ventilator, an intravenous drip and hospitalised for 5 to 6 days. Alternatively, he had by coincidence experienced a sudden asthmatic fit, with additional unrelated features, which had no association with the pesticide operation being carried out that morning in the A.P.A. There was in no report submitted on behalf of any defendant any support for either possibility.

221. Having listening for days to evidence and cross-examination from medical and lay witnesses, I decided at the prompting of counsel for the Plaintiff, to require the Defendants to state whether or not they agreed with a slightly modified and composite form of the 11th and 12th statements. It was, that on the 21st June 1987, the Plaintiff inhaled some substance which caused bronchospasm and hospitalisation. In the absence of any alternative explanation for the events and consequences of the 21st June there was no doubt in my mind that the Plaintiff had inhaled an organophosphate, diazinon, which had caused a bronchospasm and a number of other effects including congestion of the eyes, increased salivation, bronchial secretions, confusion and general weakness. To this there was, at last, unanimous agreement.

222. Dr. S. Y. Chan's records, the evidence of Dr. John Simon and his records, and the evidence of Professor Kumana are consistent. This was a case of mild to moderate organo-phosphate poisoning causing bronchospasm, and hospital treatment as an in-patient. Both Dr. Simon and Professor Kumana are experienced physicians with specialist expertise. In my view both are robust, careful and "no-nonsense" doctors attuned to the need to bring knowledge up-to-date, and to distinguish between the organic and the psychosomatic psychological or contrived. They are both satisfied that the Plaintiff was not, and is not maligning. Their contemporaneously expressed views have hardened in the light of latter knowledge and evidence. They had the singular advantage, denied unavoidably to the large proportion of other medical experts, of seeing the Plaintiff in the crucial initial days. I accept their evidence unreservedly. I should say a further few words in respect of Dr. S. Y. Chan out of deference to him. All his records show him to be a careful discerning doctor. He monitored the progress of this Plaintiff with singular efficiency. He was not at that time as experienced as either Dr. Simon or Professor Kumana. He was less experienced in dealing with organo-phosphate poisoning. He had no experience of dealing with accidental victims. He did not carry out cholinesterase tests immediately on the Plaintiff's admission to the Canossa. However such tests are not an invariable indicator and in any event there was no baseline for the Plaintiff. They were probably plasma tests which are less reliable than red cell tests. I do not state that as a matter of criticism but simply as facts. It is not necessary for me to decide upon an explanation for his obvious reluctance to accept the clear conclusions from his records and diagnoses. He may have been somewhat defensive as there was at some early stage the threat of legal action alleging medical negligence. He may have been unduly influenced by Dr. Simon's comment about "tremendous supratentorial element" and Dr. Green's letter to Dr. Simon which was not evidence in this case. Furthermore the Plaintiff was a somewhat difficult patient in keeping with Dr. Simon's remark and the state of anxiety, agitation and early litigious interest. Whatever the explanation, I make no criticism of him as a doctor on that occasion, and these other matters are irrelevant to my consideration.

223. The Plaintiff was discharged from the Queen Mary Hospital on the 1st July. Arrangements were made to fly to the poison control centre at San Francisco and he arrived in the U.S.A. a few days later. He arrived at the Poison Centre on the 5th July.

B. Diagnosis and treatment in San Francisco - July 1987.

224. He presented with a complaint of changes in his thinking and trouble with balance. He brought two brief letters with him. One must have been that from Dr. S.Y. Chan, referred to below.

225. The history he gave in relation to the incident of the 21st June 1987 was that he noted a "pungent" slightly "sweet" odour. There was a burning sensation in his eyes and throat and he began to cough and experience difficulty in breathing, his mind had difficulty following the music. About an hour after he noticed this, he left the rehearsal, feeling ill. Outside the building he experienced nausea, profuse eye watering, sweating, "frothing at the mouth" and nasal drainage (discharge?). He was "gasping for air", coughing and wheezing with copious sputum production. "I felt like my lungs were on fire." He described blurry vision and noted his thigh muscles twitching. He had several loose bowel movements that day.

226. The hospital had a letter from Dr. S.Y. Chan (this must be pp.33-34 in the Canossa bundle). It recorded blood pressure of 150/80, heart rate of 100, "pink skin", "hyperventilation" and occasional wheeze at ® base; pupils moderately dilated and reactive to light" and no focal, neurological deficit. Dr. Chan diagnosed "bronchospasm due to effects of insecticide." The result of the first plasma cholinesterase test (23 June 1987) was recorded.

227. Breathing was much improved by 24 June, with only mild dyspnoeia on exertion (without wheezing or cough). However he complained of an unsteady gait. There was no nystagmus or dysdiadokinesia.

228. He was discharged from Canossa and went to the Adventist. He was sent home.

229. He continued to feel dizzy with weak legs when he stood up. He had a headache and could not concentrate. The muscle twitching had subsided.

230. The notes record he went to the University of Hong Kong Hospital (Q.M.H.). The second letter which the San Francisco Hospital had, must have been that dated 6th July 1987, from Dr. Kumana - there are clearly quotations from it. (Vol. 14 M(1) pp.4536-4537).

231. The Plaintiff described that he felt progressively better since his discharge from Dr. Kumana's care. He could walk without a cane but had to "think to walk" and did not have his balance. He complained of insomnia, feeling would up and hypersensitive. Tests carried out on his arrival at San Francisco, including cholinesterase levels, were normal.

232. His past medical history given to the San Francisco Hospital was as expected. He referred to asthmatic attacks precipitated by dust, grass and feathers, treated in the conventional way. He avoids paint, ammonia, and chemicals which have caused respiratory problems. The attacks were rare. He had no respiratory impairment between them, and he went on backpacking hikes. He had on several occasions suffered from pneumonia. His premature birth, eye and ear surgery, sphenoid sinus infection and liver flukes were all covered.

233. From the summary it is relevant to note a number of matters in the conclusions, tentative or otherwise, drawn by the physicians.

"[He] experienced primarily respiratory and nervous system effects after an exposure .... This exposure precipitated respiratory symptoms .... which were probably due to bronchospasm. If the smell was indeed organophosphates ... as cholinesterase inhibitors, organophosphates cause bronco - constriction by a pharmacologic mechanism. [He] would likely be more susceptible to this effect given his asthma and presumably hyper reactive airways ... Beyond a local effect limited to the lungs it is possible that [he] experienced systemic organophosphate poisoning. [His] salivation, lacrimation, bronchospasm, muscle twitching and acute mental status changes are certainly consistent with cholinesterase inhibition. ... The absence of miosis ... doesn't rule out overexposure. Interpretation of his initial cholinesterase level (which was reported as within normal limits) is hampered by our not knowing when it was drawn, the type of assay (Red blood cell vs. plasma) and [his] baseline. The inter-lab variability of this test is too great to afford accurate comparison .... In contrast to the local effect upon the lungs, increased individual susceptibility to systemic organophosphate poisoning has not been documented in the literature ... He also complains of persistent (though improving) central nervous system dysfunction since his exposure. This is consistent with a clinical syndrome described in the literature. Since he is improving, normal results on neuro - behavioural testing would not rule out this syndrome. This diagnosis of course is dependent upon his having systemic poisoning initially." [Vol. 14M(2) p.4929-4931]

I have quoted here a substantial part of the San Francisco Hospital's summary but there were a number of caveats entered and matters for further inquiry. Quite apart from that however they were able to rely on the two reports from Dr. Chan and Professor Kumana and were not having to depend solely on the Plaintiff's account.

234. In their diagnosis and plan they set out a careful approach to the whole matter. They clearly formed a guardedly optimistic view of his ability to get back to work.

"---He will need a trial back in the orchestra to see if he is capable of this highly skilled task."

All the points they raised for future consideration have been scrutinised carefully in this trial.

235. The Plaintiff went for a holiday in England with his wife, staying with her parents near Reading. A car was hired for about ten days in his name. During that period the vehicle travelled 1,000 miles, an average of 100 miles per day. There has been some cross-examination of the Plaintiff and his wife over who drove the car. I do not think that is an issue in this case. The events took place ten years ago, the travelling involved was hardly onerous. If the Plaintiff did the driving, or any significant part of it, I do not find that fact inconsistent with the physical state he alleges. His credibility in relation to his disability and general physical capability was attacked. I do not consider he was evasive, unreliable or misleading and I accept that his wife's evidence on this is the more conclusive.

236. In early August 1987, back in the U.S.A. in Pittsburgh, the Plaintiff came under the care of, amongst others, Dr. Michael Hodgson, an expert in occupational medicine and author of many articles including ones related to studies of residential and commercial organo-phosphate poisoning. I formed the view that his evidence was balanced, authoritative and convincing. The initial period of review in 1987 was some 3 days. Since then until December 1994 he saw him on at least four further occasions. There are two passages early in his evidence which I regard as fundamental to the picture of the Plaintiff's illness, its cause and its nature, and to my findings on these aspects in this case. At Day 56 p.5-6 of the transcript he said:

"I believe his current state is a direct result of his exposure in 1987. Beginning in 1987, there was clearly a psychological component to his illness that I believe improved for the first two years, and certainly since 1989 has become far more important than the direct toxicological consequences; but, in my view, they are both related."

237. When asked for his opinion as to whether or not the Plaintiff was a malingerer he replied:

238. In his report of September 9th 1987 to the Plaintiff himself, Dr. Hodgson stated that the initial symptoms were highly suggestive of organo phosphate intoxication and went on:

"Your persisting dizziness is not suggestive of this condition but more of toxic labyrinthitis.....it is quite possible then that your dizziness may be due not to the OP exposure but to exposure to the solvent carrier and may actually be due to a solvent encephalopathy."

239. In the course of his evidence Dr. Hodgson modified this view in the light of further study, data and literature:

"In retrospect I do not believe that the dizziness - I do not think it likely that he had enough solvent exposure to lead to chronic dizziness..... Now there is actually much better data to support the idea that there is at least a non-specific abnormality of postural control that is a long-term effect of organo-phosphate exposure.....and dizziness is in fact the clinical expression of that non-specific abnormality of postural control."

240. There was change of course in the Plaintiff's state which Dr. Hodgson describes in the following terms, putting the emphasis now on the psychological factors:

241. I have jumped ahead in my consideration and assessment of the medical evidence but since I regard Dr. Hodgson as holding the thread and establishing with the other contemporaneous medical reviewers the pattern of skilled medical opinion over the significant period, it is necessary to do so. Dr. Hodgson had seen the Plaintiff only a little over six weeks after the exposure.

242. The Plaintiff was not able to perform satisfactorily at the Grand Teson Music Festival that August. He was never invited again.

243. Dr. S. Y. Chan it will be recalled had written the referral letter to the Consultant Neurologist, Dr. Robert Ho [Canossa Bundle p.28], on the 25th June before the Plaintiff's discharge from the Canossa. On Dr. Chan's assessment the neurological picture was normal but he felt it necessary to make the referral and the letter spoke of "on cerebellar examination his movement (s) are slow and there is some degree of past pointing." Dr. Simon had conducted a neurological examination on the 23rd June which was normal but on the 24th June was abnormal. There has been much discussion as to the forms, results and significance of the Romberg tests carried out by different doctors on several different occasions. Dr. Ho of course carried out his own.

244. Dr. Ho's report on the caloric tests showed the presence of a right canal paresis and right directional preponderance in September 1987. The Plaintiff came under his care on 21st September 1987. He had tried to return to work with the Orchestra. He had, by the date of the report (November 1987) started on a physical rehabilitation course under Dr. Julian Chang at the Canossa Hospital. There is no doubt in my view that the Plaintiff was making every effort towards his recovery and the records of intensive Cybex training which lasted until August 1989, show considerable progress. He was well-motivated. Dr. Ho, Dr. Julian Chang and Dr. Brian Choa all attest to this. I am satisfied that it was a combination of the Plaintiff's outlook and physical progress which caused them to express their relatively optimistic outlook in their reports, following the difficulties described in the last quarter of 1987.

245. Caloric tests carried out in April 1989 were essentially the same in their results as those 18 months earlier. As 1988 passed and 1989 progressed it was clear that he was still complaining of residual problems which affected his ability to return to his position at the pre-incident level.

246. Dr. Ho regarded the Plaintiff as genuine. He was satisfied that he was suffering from neurological dysfunction with a possible psychological component, a not uncommon feature. Dr. Ho was at pains to point out that the abnormalities disclosed by the testing were subtle not severe ones. Clinical examinations do not show fine dysfunctions and for this Plaintiff his skill and performance as a timpanist was affected by impairment of fine motor functions together with fatigue, dizziness, difficulty in balance and in reading music. He was also complaining of some problems with comprehension of the music. He was however practising until the studio ceased to be available because the H.K.P.O. failed to secure a renewal of the lease. They consequently moved his instruments to a facility in Aberdeen which was, for the Plaintiff, not a practice facility. This happened at the end of March 1988. It was clear from the contents of Dr. Ho's second report (4th June 1988) that when he saw the Plaintiff in May for the purpose of that report, the Plaintiff was not letting that factor interfere with his outlook and intentions. This together with the sustained Cybex exercise and the other features referred to by Dr. Ho, indicate a man who was doing his best to rehabilitate himself and take up his career following the interruption. It is inconsistent with any idea of malingering or lack of motivation.

247. Confirmation of Dr. Ho's approach is to be found in the report of Dr. Brian Choa obtained by the H.K.P.O. management in December 1987. The Plaintiff's reaction was genuine and not hysterical. He was being tested and assessed to see if there was any evidence of neurological abnormality. I do not propose to deal in detail with his testing and the findings in relation to the Romberg and the E.E.G. Suffice it to say, that although Dr. Choa was cross-examined at length and in great detail about these matters, I was impressed by his explanations and his careful approach. He explained why there could be variations in the results of the Romberg tests particularly with borderline abnormalities-degrees of fitness or alertness could compensate for a disability or make a minor abnormality more obvious. [Day 40 p.105]. I accept his evidence. It is important to bear in mind that Dr. Choa by any yardstick was approaching his assessment from a totally objective viewpoint. He was not the treating doctor or consultant. If he had any leaning to a subjective approach it would have been one that was sceptical bearing in mind the source and purpose of the instructions given to him. Nevertheless he must have adopted a strictly critical approach. His conclusion at Day 40 p. 106 in relation to the Plaintiff's effort in tests carried out by other doctors, was:

"No, I do not accept that (patient had not been using the best of his efforts) because one thing that does come through is that Mr. Phillips was put through a large number of fairly complicated tests of coordination, one thing he was complaining of, and yet at no time did he feign an inability to perform these tests. Every examiner said he performed well on things like dysdiadochokinesia and so on, which to me gives more credence to his actual complaint, which is difficult to test specifically, you know, a highly skilled task."

248. Shortly afterwards, at page 120, he was asked how significant was the Plaintiff's optimism for the future:

"I was impressed by that. It is not the demeanour or the manner of someone who is malingering. Although Mr. Phillips was clearly depressed at the time, he expressed some hope for the future, and he admitted that he was improving and that he believed that he would continue to improve."

249. Once the 2nd Defendants were in possession of Dr. Choa's report they were aware of these matters:

250. Shortly afterthis, in January 1988, Dr. Julian Chang was writing that it would be better for him to return to the U.S.A. for rehabilitation and that it would be a long drawn out process. Dr. Hodgson similarly made a recommendation and had in mind Harmarville Centre in Pittsburgh. The H.K.P.O. decided to convene a medical panel in Hong Kong and the Plaintiff nominated Drs. Julian Chang and David Davies. By then he had told Mr. Crabtree of the need for rehabilitation and I accept the Plaintiff's evidence that Mr. Crabtree agreed in principle subject to a formal written request and medical reports in support with the necessary locations and times. Given the H.K.P.O.'S. knowledge of the Plaintiff's state from Dr. Choa and other sources, it was entirely reasonable and in everyone's interest that he should proceed to such treatment as soon as possible. Mr. Crabtree led him to understand that there would be no objection - I would anticipate that to be the attitude of a reasonable employer - and the Plaintiff went ahead and arranged it at short notice. His letter of the 15th February 1988 complied with Mr. Crabtree's requirements. Mr. Crabtree's letter of 15th February in reply appears to conflict with what he had indicated to the Plaintiff. I do not know what Mr. Crabtree had in mind in formulating its contents. Perhaps he felt that he ought to have been more formal and strict in his stipulations at the earlier meeting or that he had exposed the H.K.P.O to a financial liability not approved by the Board. I do not know. In view of that understanding reached with the Plaintiff it was unreasonable. There was a degree of urgency. It was not necessary for the board to meet first. He had not performed with the Orchestra save on a very few occasions and the sooner the situation was clarified the better. His salary was stopped. That was high-handed.

C. From Harmarville to Hong Kong and back.

251. When the Plaintiff returned to Hong Kong from the Harmarville Centre it was clear that the practice facility was no longer available. At the end of March 1988 his instruments were moved to the quite unsatisfactory premises in Aberdeen. He was offered a facility at the Arts Centre sharing with another timpanist. There is evidence that this was unsatisfactory.

252. He had been in Pittsburgh for tests and assessment from approximately mid-February 1988 to approximately 10th March. He was keen to return to timpani playing as soon as possible. The reports highlighted his difficulties, and recommended a return to practice sessions as soon as possible. The problems related to speed, endurance and fine motor functions. In general, those have not changed over the years. As Dr. Hodgson had in the previous year - some six months earlier in fact - the Western Psychiatric Institute and Clinic had formed the impression that the exposure had triggered a psychological reaction and psychotherapeutic intervention was recommended. He had returned to, first non-existent, and then inadequate, practice facilities. The way the H.K.P.O. management had dealt with the transfer of his instruments was, to say the least, insensitive and unsatisfactory in my view. These factors were hardly conducive to continued recovery. At a meeting with Mr. Crabtree on the 17th March 1988 the Plaintiff was persuaded to accept that he had been in breach of his contract by leaving for the U.S.A. without formal permission. If he was, it was a technical breach only, and I am satisfied on all the evidence that no reasonable employer would have regarded it as other than that, at worst. He conveyed to Mr. Crabtree, as he had to medical experts, his anxiety to return to work as soon as possible and Mr. Crabtree noted [Vol. 5C -p.1386] that he explained to him that it was vital to establish a complete recovery and that this could be based only on medical evidence and not the Plaintiffs personal feelings. The medical panel proposed by Mr. Crabtree, and which the Plaintiff readily accepted, never met. One can be forgiven for concluding, somewhat cynically in the light of the foregoing and what in fact happened in relation to practice facilities and to his own instruments, that the management of the H.K.P.O. were, by now, less than interested in his full recovery.

253. The neuro-psychological report of 18th March 1988 [Vol. 14(M)2 - p.5057-5060] from Dr. Jubala expresses in succinct form, the thread to which I referred in my earlier consideration of Dr. Michael Hodgson's evidence, and the theme which continues through the following years to date:

254. On the 24th May 1988 Dr. Julian Chang and Dr. Ho conducted a joint examination and assessment of the Plaintiff. Both were impressed by the degree of improvement and the Plaintiff's attitude. Whereas Dr. Ho was overtly optimistic, Dr. Chang was more cautious.

255. However, practice proved to be a problem for several reasons but the Plaintiff continued with the Cybex exercise and improvement. In July 1988 he had an operation on the left eye to correct the breakdown of the surgery he underwent as a child. This eye problem calls for some consideration.

256. Dr. MacRobert had seen him in December 1987 when he complained of headaches, eye strain and double vision which had occurred over a period of a few weeks prior to the visit i.e. after his exposure to diazinon. It was not by December a constant problem but by June 1988 it had become so and was annoying. On 6th July 1988 Dr. MacRobert carried out an operation to correct the problem. He formed the initial view that the problem was "a restrictive syndrome consequent from previous eye surgery as a child with the added effect of organophosphate poisoning. "[Vol. 14 M(1) p.4558] The Plaintiff had survived thirty years since the childhood operation. Within six weeks of the July operation the correction had broken down. This was of some considerable surprise to Dr. MacRobert. It was apparent from his evidence and manner of giving it, that he had looked hard for an explanation, concerned that there may have been some professional shortcoming on his part. However he concluded that the breakdown was due to the poisoning and not to fibrosis.

257. The rate of success of surgery to correct strabismus or squint is such that about 80% of patients will go through their life without requiring further surgery. Dr. MacRobert would have expected the Plaintiff after 30 years without further problem, to have been in that category. The breakdown so soon after the operation was clearly a surprise. His view that exposure to organo-phosphate was a factor in the breakdown was supported in his view by a case report published in 1993 of the effect of organo-phosphate pesticides on children in Japan, producing muscle disorders and changes in the optic nerve. He rejected a simulated convergence spasm to account for the Plaintiff's diplopia, and explained and demonstrated how certain features of that condition were absent.

258. Dr. MacRobert was required to consider in the context of the Plaintiffs long term visual state and his own opinion as to the cause of the breakdown following the operation, part of Dr. Charley's report [Vol. 14 M(2) p.4849].

"The patient does state that he was seeing a ghost image near the primary image six months prior to the organo-phosphate exposure."

Although the Plaintiff had not mentioned such an event to Dr. MacRobert in December 1987 (Dr. Charley was seeing him two years later) he pointed out that ghosting was not double vision. It could have been caused by a number of factors. There was no constant problem until about November 1987 - then it started to get worse. Had there been more than one episode of ghosting then he may have been "getting some breakdown". It is clear from the whole of the second paragraph that Dr. Charley was himself drawing a distinction between double vision (diplopia) and "seeing a ghost image" - it concludes

"His double vision, since it become frank double vision at the time of the exposure is worse when he is tired."

Dr. MacRobert made his position clear in the course of cross-examination [Day 40 p.155 - 157]

259. It is apparent, and Dr. MacRobert readily referred to this, that it is impossible to say that the initial breakdown of the strabismus was probably due to the diazinon poisoning. There may have been progressive breakdown in the ordinary course. But the post-operation breakdown in August 1988 had no reasonable explanation but that it was the result of the lingering effect of the poisoning. I cannot be satisfied that the organo-phosphate poisoning was responsible for the initial breakdown in or about November 1987. It may have been. The time-scale of the initial breakdown may simply have been coincidental. But I accept Dr. MacRobert's evidence that the breakdown of the operative treatment in August 1988 was due to it. It is of course possible that factors of the Plaintiff's history and the poisoning were together instrumental in the original breakdown necessitating surgical intervention by Dr. MacRobert, the evidence does not however justify such a finding on the latter aspect on the balance of probabilities. This aspect however does not feature large in the Plaintiff's condition, particularly after 1989, but it is nonetheless a factor.

The Hearing Disability

260. On the 24th June 1987 there is an entry by Dr. S. Y. Chan suggesting some hearing problem being experienced by the Plaintiff. His own evidence refers to a "roaring" sound turning into a "ringing" sound. He equated the former with the roar of a Boeing 747 aircraft. Dr. Chan in his evidence confirms that the Plaintiff was saying that he could not hear what was being said clearly [Day 37 p. 110], but there was no complaint to him of any noise in his ears.

261. This aspect is not well supported by the various medical reports through 1987 and 1988 until in October 1988 Dr. Buddy Wong refers to a complaint of "difficulty with hearing of a subtle nature". His tests resulted in a normal hearing assessment, but he added "such hearing disability is not easily defined and the routine hearing tests will not define it". Further testing was recommended. In March 1989 Dr. Ho was aware of his complaint of some hearing impairment:

262. Some mild bilateral sensory neural hearing loss at 4000 Hz. on Audiology testing was found a little later in 1989. The later report said "This could be a noise-induced hearing loss or problems caused by other pathologies". By then the Plaintiff had been using the Aberdeen practice facility for some time. By that time he also knew that his contract was not going to be renewed. The Plaintiff considered he had tinnitus prior to use of the Aberdeen facility. However what is of real significance is that in interviews with Dr. Singer in 1990 there is no mention of any tinnitus or hearing problems. Had the Plaintiff made any such complaint I am satisfied that Dr. Singer would have recorded them. They would have been far too significant, however subtle the loss, not to have been recorded, and if they existed at that time, the Plaintiff would not have failed to mention them. What then am I to make of this picture and the evidence including the later expert opinion?

263. I think he is not fabricating any complaint on this score. I consider he did genuinely have some hearing problem, of a subtle degree, and the use of the Aberdeen facility may well have exacerbated this. It was a variable condition hence perhaps the fact that the Plaintiff made no mention of it to Dr. Singer. Such is my assessment of the Plaintiff and his evidence on this aspect that I am satisfied that either he genuinely suffers from tinnitus now, or that he genuinely believes that he suffers from it and that it is psychiatrically linked. Whatever the position, it has developed as a consequence of the incident on the 21st June 1987. It is not capable of objective assessment which renders the discussion incapable of ultimate resolution. There is no evidence of any pre-incident condition which would have affected his career in the normal course of events.

264. The event of crucial importance in 1989 was the non-renewal of his contract. His position as Principal timpanist was advertised on the notice-board on the 13th March 1989. In view of his position medically, his efforts to achieve full fitness, the obstacles in his path and his tenure with the H.K.P.O. (since 1980) I am astonished that the management was so lacking in fundamentals that it did not explain the non-renewal of his contract with them. Even for an individual musician who was not in the Plaintiff's dire state musically, I consider common courtesy should have called for some contact prior to such a notice, even though a contract expired by effluxion of time with no right of renewal or provisions for negotiation. The Legal Aid Department had written on his behalf, before the advertisement was posted, seeking clarification as to whether his contract would be renewed. As far as I can ascertain, that inquiry was never directly answered. The position was dealt with by the advertisement. Strangely the accountant of the H.K.P.O. informed the Inland Revenue that the reason for the Plaintiff leaving Hong Kong (they thought he was about to leave on the 30th June 1989) was that he was resigning. Although this was later corrected to "expiry of contract" the purported reason for the mistake is unconvincing.

265. Why was his contract not renewed? Of course there was no obligation to renew it, but in the normal course of events after service since 1980, a musician could expect a renewal unless there was a clear reason for not providing a new contract.

266. Mr. Crabtree said the reasons were not ones relating to his musical performance but he was unable or unwilling to shed any light on the position. By virtue of his powerful position as General Manager and close contact with the Board, it is inconceivable in my view that he was not privy to the reasoning for the decision. This is not a gratuitous inquiry into the position because during the course of this case it has been argued on behalf of the 2nd Defendants that his performance in the 1988-89 season was wholly satisfactory and that there was no diminution in his skill. If that is so what is the alternative explanation?

267. Since his contract had been renewed in early 1987 for two years, there was no preceding complaint or problem which could have been held against him. He had not been given any warnings or told that his renewed contract was conditional. He had not been required to give any undertakings.

268. In my view the reason for the non-renewal in 1989 lies in the events post - 21st June 1987. He had missed the best part of the 1987-88 season through illness and his rehabilitation programme. His leaving Hong Kong for rehabilitation in Pittsburgh on medical advice was treated as a breach of contract. I have already dealt with the evidential position of the Plaintiff and Mr. Crabtree on this aspect. His salary was stopped and there was a clear implied threat to dismiss him for breach of contract. After that there was the problem over the lease for the practice facility, the argument over medical expenses and the conflict concerning the removal of his instruments to Aberdeen and practice facilities. The H.K.P.O.'s solicitors wrote on 23rd December 1988 to the Plaintiff's Solicitors [Vol. 29 MS p.9469].

"He rarely performs a full concert or rehearsal - much of the timpany work being shared by his colleagues."

This was written some four months into the season. Within less than three months it had been decided not to renew his contract. The Plaintiff's case is that his performance that season was below par and that there were important instances of this. The Resident Conductor, Miss Yip Wing-Sie who was then in, I think, her third season, readily conceded that a perfectionist may have found fault in some respects with his performance although in the overall context of orchestral performance on the occasions on which she conducted and on tape-recorded examples, she would not fault the performance in most respects. Mr. Malcolm Brasher did not think, on the comparisons he was able to make between tape recorded performances, that there was any noticeable failing. Much evidence was concerned with performance in relation to the musical score but what emerged from all this evidence was the willingness of the conductor to concede that in some respects the Plaintiff "may have a point", that he may well have been adopting a highly-self-critical approach, that there are short-comings in recordings of performances which may mislead, and the unarguable nature of the management's contention that for the first four months of the season he was not "pulling his weight" in terms of contribution. I reject the 2nd Defendant's argument that he as performing satisfactorily that season, and find that the contents of that letter formed at least one significant reason for not renewing his contract. His stamina, concentration, control, musical senses and dynamics were below what they had been prior to 21st June 1987. I am sure however that they seemed much worse to him than in fact they were, although there was what he regarded as serious criticism of his playing in a newspaper review, and adverse comments by two conductors.

269. Once the decision had been taken not to renew his contract there was no real incentive for the 2nd Defendants to provide practice facilities to assist him. They were certainly not going to take on a lease for premises.

270. By September 1989 he was unemployed (and in fact unemployable), in increasing financial difficulties but still trying to increase his degree of recovery. Over the period of two years which had elapsed since the incident, no medical expert who had evaluated and/or treated him, had regarded him as other than genuine. All were aware of the psychological problem which existed and which magnified in his eyes the problems encountered. He was not a malingerer. I am satisfied that this body of medical opinion had used its considerable combined experience, skill and judgment to evaluate the Plaintiff with great care and objectivity. Nothing has caused me to consider that they had been deceived by him. I consider, as will appear later, that their assessment holds good and has not been shown to be suspect by later events and reports. I do not doubt that he was a difficult and wearisome patient. From 1990 onward his psychiatric or psychological state, which had demonstrated its early presence to Dr. John Simon, deteriorated and was the most significant factor thereafter. The Plaintiff had demonstrated, unarguably in my view, a determination to get better, do well musically and return to his former skilled musical state. In the light of his background, his training, talent and ambition, as well as his own opinion of his ability which is not to be criticised, I do not accept that he used any event or circumstance as an excuse for abandoning his efforts. As time wore on he realised that he was never going to return to a position in an orchestra and lost hope. Dr. Peter Whyte's reports of August and November 1989 express the following significant opinion which perhaps encapsulates the views of all at that stage:

"I would think that there is little doubt he will eventually be able to teach and to play in groups at a later date ...... But it seems certain his chosen career as a timpanist is finished ...... It is a testament to this man's courage and underlying optimism that he is able to continue to strive so hard towards rehabilitation." [Vol. 14 M2 p.4871].

And Dr. Julian Chang had written two months earlier [Vol. 15M p.5280],

As the end of 1989 he was back at Harmarville Rehabilitation Centre and the Eye and Ear Hospital of Pittsburgh. The picture was very much the same. Dr. Hodgson in his report of 19th February 1990 [Vol. 14 M(1) p.4689] said, of the first evaluation at the Centre:

"[He] was thought to have both residual functional abnormalities from the exposure and psychological impairment from the course of his illness."

In the updated evaluation he wrote:

"I believe there is a secondary psychological process associated with his illness, such as we see in unresolved and contested occupational disease claims."

In a later report, of 23rd June 1995, Dr. Hodgson sets out the whole history of evaluations and peer - reviewed literature with particular emphasis on the "psychological sequelae of [organo-phosphate] poisoning in the complex course recovery."

271. Dr. Joseph Furman sent a report to Dr. Ho in November 1989. Essentially, there was no significant difference between their findings and views:

"[He] shows signs of ongoing vestibular system abnormality."

272. Although Dr. Zee did not find these he did not question Dr. Furman's conclusion as a reasonable one.

273. In 1991 Dr. Bruce Hayse was writing of "organic mental disorder secondary to organ-phosphate exposure" and "many different problems ...... unlikely to be able to find work", and Dr. Peter Crane, the neurologist to whom he was referred, said "[He is] remarkably good for the symptoms he describes ...... Desperately wants to be able to return to his profession ...... Still has a multitude of neurophysiological and neuropsychological problems."

274. Dr. Linda Gummow, the psychologist, did not doubt the Plaintiff's genuine effort in the tasks undertaken and concluded that there was no evidence before her that he had attempted to present a pathological picture of himself. She had assessed the Plaintiff in 1991 and by the time she saw him again in 1993 there had been a serious deterioration. She took issue with the Defendants' expert witness Dr. Gordon on a number of matters the extent of which I need not set out in the light of my assessment of Dr. Gummow's evidence and approach as compared to those of Dr. Gordon.

275. Her conclusions were that the Plaintiff suffered from a personality disorder as a consequence of his injury on 21st June 1987. The features of this suggested that he did not deal with reality as other people might. She highlighted this with illustrations of narcissicism or self-centredness, and obsessive compulsive issues. She associated herself with the views of Dr. Singer - "that there is a combination of organic and psychiatric, the precise division of which cannot really be analysed".

276. She went on to crystallise her opinion:

"The first thing is that psychiatric disability and symptoms are common with organic brain injury and the literature on neurotoxic exposure is full of references to anxiety and depression associated with pesticides and so on. So you really have a continuum of psychiatric symptoms, to organic mental symptoms, cognitive symptoms. You cannot separate the two and tell where one ends and one begins. There are more psychiatric symptoms in some individuals than in others with the same condition. But in Mr. Phillips case, there is clearly, in my opinion ...... an insult to his central nervous system to which he has reacted very intensely." [Day 59 p.69-70].

I found the evidence of Dr. Gummow very convincing. Her careful, balanced, authoritative approach, her willingness to modify a view on reassessment in the light of new information, and to concede where her expertise did not run, made her an impressive witness. She reflected much good sense and was in no way didactic.

277. By contrast I had serious reservations as to the views of Dr. Gordon, the Professor of Neurology at the John Hopkins Hospital. The practising expertise of the two was in different fields but there were areas overlapping. I felt that he lacked an objective, dispassionate approach. He was full of enthusiasm for his argument as to why he rejected any contention that the Plaintiff was giving of his best in the tests. He struck me very much as the advocate, wedded to a cause. I am satisfied that his view of the Plaintiff was coloured from the outset. He had failed to consider the diagnosis made early in 1995 that the Plaintiff was suffering from a major depressive disorder with indications of lack of motivation and stamina. Had he done so, he would have considered his clinical findings against such a background and reflected it in his report. At no time did he appear to accept or indicate that he was conducting tests on a man who was substantially handicapped by a major psychiatric illness. He did not want to accept the basic tenets of a credible expert witness when in answer to three simple questions he indulged in semantics. He appeared to have two separate opinions - his private view and his professional view - of the Plaintiff's malingering or other state. I find it difficult to accept that an expert in his field, or any other field, could have anything other than a professional view. I regret to say that, undoubtedly well qualified and thought of in his field as he is, I am unable to accept his evidence. At the end of his evidence he was constrained to concede that a neurological deficit may exist even where a patient, in a neurological examination is not able to demonstrate such; that diffuse insults to the brain may produce a one-sided (as opposed to bilateral) effect; that a toxin may cause an effect which is patchy in behaviour; that in the case of this Plaintiff it is impossible to exclude some small amount of underlying organic disease; and that there can be subtle neurological effects from an injury or exposure to poison which it is very difficult to prove or disprove. As this stage of his evidence there was a marked contrast in style and approach and I felt that he had broken away from his brief and the role of advocate. The contents of this objective part of his evidence were consistent with the vast body of expert medical evidence in varying fields which had covered the Plaintiff's assessment since 1987.

278. Professor Swash, called on behalf of the Defendants (by the 4^th Defendants) is Professor of Neurology at St. Barts and the Royal London School of Medicine and Dentistry. He is eminently well-qualified and has an impressive curriculum vitae encompassing editorial work in various medical journals and he is the author of many papers and texts. He has a particular research interest in motor neuron disease. He set the tone of his assessment of the Plaintiff when in relation to the results of some pin-prick testing he said:

"I could only conclude that this was a factitious simulated abnormality sensation designed to impress me and not part of an organic disturbance." [Day 51 p.16]

"He did not rock-from side to side he did not put out a hand or a leg to support himself and I thought the Romberg test was negative." [Day 51 - p.20]

It was interesting to note that in evidence Professor Swash said he took the canes away from the Plaintiff for the purposes of the test whereas in his report [Vol. 16 M(2) - p.5807] he wrote:

"Romberg testing indicates that he is able to stand with his eyes open holding the two canes lightly touching the ground in front of him when his eyes are closed with a slight smile, he gently rocks backwards away from the examiner."

279. His evidence as shown by the passage refers to the Plaintiff not putting out a hand or a leg to support himself, whereas his manuscript notes say "Romberg: falls backwards slowly and puts out leg and arm." Apart from these discrepancies or inconsistencies the Professor was less than sure-footed when it was pointed out to him that a passage in the text-book Hutchison's "Clinical Methods" (19^th Edition) written by him, which said:

"If Romberg's sign is present, as soon as his eyes are closed he begins to sway about or may even fall.",

contrasted with his own evidence in which he had stated twice that a Romberg test was not positive until the person started to fall over. He agreed that the text did not accord with his evidence [Day 52 - p. 32-34]. Although he sought to question the findings of Drs. Ho and Choa in respect of their Romberg tests and even to suggest that what Dr. Choa recorded as a positive Romberg did not mean what it said (or Dr. Choa said) I do not consider that his evidence was satisfactory in this respect and that the evidence of a number of doctors as to the variability of the results of such tests being influenced by factors such as fatigue and health is to be preferred. As Dr. Gummow expressed it in her particular context:

"If an individual has a milder injury ..... what you will see are strong performances in many areas and weak performances in others. So you will see a variation in the more subtle injuries that you will not see in the more dense injuries."

Others have expressed the same general principle in their particular contexts.

280. I have already stated that I accept Dr. MacRoberts evidence which rejects Professor Swash's argument that diplopia was linked with convergence spasm. Professor Swash had not read the evidence of Dr. Simon or Dr. Choa at the time he gave evidence and seems not to have considered the psychiatric and psychological evidence since 1987. There was no contention of gross neurological damage and it was clear that the Plaintiff's perception of his physical state was that it was far more serious than was in fact the position. I do not accept his argument suggesting the Plaintiff was malingering. He finally accepted however that the Plaintiff could be suffering from a subtle neurological deficit particularly affecting his ability to perform as a timpanist, and in fact also accepted Dr. Choa's point that in neurology you can have a subtle disability which is not regularly illustrated on repeated examinations. Professor Swash, in conjunction with Dr. Schwartz, the Consultant Clinical Neuro-physiologist, another medical expert whose evidence on behalf of the Defendants I will consider a little later, wrote "Neurology, A Concise Clinical Text." There are several passages on "Hysteria" after dealing with the classical concept of "Conversion Hysteria," the text reads:

The underlining is mine. The text is a statement in my view of an experience which Professor Swash has discounted too readily and erroneously in this case. Its thinking is an echo from the 3^rd Edition of Slater & Roths "Hysteria and Clinical Psychiatry."

XI The Neurophysiological Tests - Drs. Jamal & Schwartz.

281. These tests, carried out by the respective experts in 1996 and during the course of this trial must be seen against the background of my findings on the medical issues so far: that the Plaintiff has suffered some organic chronic injury in the form of subtle neurological deficits which have become exaggerated by his now chronic, psychiatric state and that he is not in a malingering state but genuinely believes his physical condition is far worse than it actually is, and that the substantial medical opinion which attests to these conditions is consistent, long-standing and authoritative.

282. The tests were carried out by Dr. Jamal and his colleagues at the Glasgow Centre, a specialist unit, using a standardised quantitative assessment system which is long-standing. A visual method is used - "a selective exercise using judgment and good practice."

283. Dr. Schwartz who carried out tests in Hong Kong, instructed on behalf of the 4th Defendants, practises in London in a specialist unit to identify potentials by "computerisation and not by observation." In Hong Kong however he had to rely on observation alone.

284. Much of the evidence of the two neuro-physiologists was of a highly technical nature and more appropriate to a class of the initiated. The experience however was particularly confused by what leading Counsel for the Plaintiff has called the "template saga". Material put to Dr. Jamal in cross-examination caused me to understand that a particular delineation of a potential was definitive in duration and I think we all proceeded on that basis. When Dr. Schwartz himself came to be cross-examined he indicated that duration was not measured by the delineations, they merely represented a "template", and were used to mark the sharp phase of the potentials. This was despite a question in clarification of the delineations by myself when they were put to Dr. Jamal the answer to which made no mention of any duration. Since there was a full-frontal attack on Dr. Jamal's technique and interpretation, I found this highly unsatisfactory, and the argument to counter Dr. Jamal's expertise somewhat unconvincing.

285. At one stage there was a combined Swash/Schwartz attack on Dr. Jamal's status which smacked of "inter-club" rivalry. It was suggested his equipment was unacceptable, that it was out of date. Dr. Jamal's riposte illustrated that this was ill-informed criticism and the point was abandoned by the Defendants. It was stated that Dr. Jamal" leans heavily on the distinguished reputation of Professor Simpson who retired many years ago." I did not gain such impression at all, nor did I conclude, as Professor Swash did, that Dr. Jamal "ridicules the evidence of several others." Although criticism of that kind, which I find unfounded, can always, understandably, give rise to the reaction that where the critics can do no better than make spurious allegations, it must adversely reflect upon the validity of their professional opinion, I do not take that into account in evaluating their opinions in this case. The hangover of "inter-hospital Rugby" rivalry like the unrestrained rivalry of advocates, often leads to such comments.

286. I was impressed by Dr. Jamal's approach and the manner of his giving evidence. In explaining matters there was none of the didactic style. He conducted his tests with care. He was at home with his equipment and had his experienced colleagues at hand. He spoke with authority. Dr. Schwartz had none of these advantages. He had to use a different facility on an "ad hoc" basis. He was under some pressure of time and was noticeably less ordered and in control of his information and material generally.

287. In a number of tests Dr. Jamal and Dr. Schwartz both found normal results but there are some essential differences to their other respective findings. I think Dr. Schwartz findings and his exposition of them are influenced by the difficulties to which I have referred. There was a close, detailed examination of the battery of tests conducted by both of them. I do not consider it necessary for me to re-iterate that detailed consideration. I prefer Dr. Jamal's evidence, and the report of Dr. Julu, and am satisfied that the findings he put forward and explained were in fact so found. The introduction of Dr. Peter Crane's EMG (Electromyograph) test on the left ulnar nerve following the Plaintiff's hyperextension injury to his left elbow is not relevant to an assessment of Dr. Jamal's findings. Dr. Crane did not give evidence and without access by Dr. Schwartz or Professor Swash to him or his records and data, there is no evidence to suggest that there had been a quantitative assessment. Everything points to an examination with the purpose of confirming or excluding injury to the left ulnar nerve.

288. The content of Dr. Jamal's findings are essentially:

289. In summary the tests confirmed the presence of distal axonal sensory motor axonal neuropathy affecting the most distal portions of the limbs particularly the lower ones.

290. It is of a chronic nature being the after-effect of a past diffuse insult with partial regeneration but with no evidence of any acute or continuing axonal disruption. Dr. Jamal's findings are consistent with the neurological findings which I have reviewed earlier and which indicated some subtle deficits from a very early stage following the exposure. These findings and Dr. Jamal's, are also consistent with the body of literature considered in the course of this case.

XII The Toxicological Aspect.

291. To a large extent the evidence of Dr. Gots, Dr. Edelman and Dr. Epstein has been overtaken by my findings to date. Some of Dr. Gots' replies in cross-examination are simply confirmatory of this:

292. He had earlier said:

"I think we have such clear and convincing evidence from the cholinesterase levels and the clinical presentation that Mr. Phillips did not have organo-phosphate poisoning."

That statement was in my view wholly unrealistic. He seemed to be arguing that what precipitated the asthmatic reaction was an irritant or an odour and that the symptoms described by the Plaintiff, his necessary hospitalisation and treatment were not indicative of a poisoning.

"Anyone who says that this gentleman had acute organo-phosphate toxicity or has a subsequent problem from organo-phosphate poisoning, I would take issue with....." [Day 64 - p.65.]

By this time Dr. Gots was, I regret to say flying in the face of the obvious. He sought to draw a distinction between the irritant effect of a pesticide and the toxic effect and we reached a somewhat unreal stage in his evidence at Day 64 p.83 when the following exchange took place:

In the light of the material that was put to Dr. Gots including the literature and his answers in respect of it, his evidence became progressively unimpressive.

293. Dr. Edelman was somewhat more compromising in his approach but took a stand against the Plaintiff's contentions on a very limited basis.

294. He conceded that the pesticide caused the symptoms and he had no other specific cause in mind; and that all the symptoms put to him were consistent with organo-phosphate poisoning. He attributed significance however to the absence of bradycardia and decreased blood pressure. Despite that he was willing to accept that there had been a mild intoxication or poisoning but could not support the diagnosis of a causal relationship between the chemical effects of diazinon and his current alleged neuro-cognitive disorder. He considered the most likely diagnosis was of a depressive disorder and somatoform disorder.

295. Dr. Edelman seemed to draw a line after short-term exposure to organo-phosphate intoxication, doubting there would be other than transient effects lasting perhaps not much longer than the period of hospitalisation in June 1987. In relation to the body of medical evidence he said that if he read Dr. Ho's report he concluded that there was nothing significant to put into his analysis; nor did he consider the facts in Dr. Choa's report as being relevant to his analysis. He excluded long-term subtle effects of a neurological kind unless there had been a severe exposure, which this was not. The cholinesterase results, he considered, ruled out anything other than a mild poisoning effect.

296. As I have indicated earlier the medical opinion which I prefer has shown long-term effects and therefore Dr. Edelman is mistaken in his view of the limitations of the organo-phosphate exposure which this Plaintiff suffered. The evidence of Dr. Epstein on causation is of course subject to the same general introductory comment with which I started to review the evidence under this heading. In any event I had the benefit of Dr. Epstein's evidence when I was considering causation. The no-nonsense, robust approach which he adopted as reflected in his evidence on Day 69 at pp. 46-56 showed that he was the master of his brief. His evidence was the professional gloss to a mass of material which in my view led in one direction - that this Plaintiff suffered an acute systemic poisoning by the organo-phosphate diazinon with residual but mild neurological deficits compounded by psychiatric condition.

XIII The hypothesis of flight and the psychiatric evidence

297. Professor Sir Martin Roth is a very distinguished and experienced consultant psychiatrist and academic. He has been deeply involved in this and ancillary fields and clinical practice and research for many years.

298. He examined the Plaintiff on the 1st and 2nd October 1996 and there are transcripts of the tape-recorded interviews.

299. The key sentence to the basis of Sir Martin Roth's hypothesis is in the final paragraph of his "Summary of the case" (Vol. 16M(2) p. 5628/9):

This theory of flight, based on pre-morbid events, behaviour and assessments, is crucial to the 4th Defendants contention that the incident of the 21st June 1987 was in no way causative of any problems experienced by the Plaintiff over and above the initial days of treatment at Tang Shiu Kin and the Canossa Hospitals, and that the Plaintiff simply used the events of that day and its immediate aftermath as an excuse for his pre-determined and/or self-inflicted ills.

300. It is essential, in view of the implications of that hypothesis, to examine the post-incident events and certain courses of the Plaintiff's pre-incident life upon which it is based. They are largely set out starting on p. 5646 of his report under the heading "Delusions and related features".

I have quoted from this section at length in order to set out the force of Sir Martin Roth's views. I have also read (though not heard) the tape recorded interviews.

301. Sir Martin Roth was not aware of the existence of one of the techniques of modern litigation investigation which has become in many cases an invaluable tool, namely surveillance with camera. It is not always used as a subterfuge. Plaintiffs have sometimes been sharply made aware that they have been "caught on camera". This Plaintiff was at one stage involved with a number of lawsuits. The incident when he was "rear-ended" had support in a letter from the driver of the car in which he was travelling. I do not find the circumstances of that incident at all unusual or surprising. Again it was outside Sir Martin Roth's experience or knowledge. The suggestive or obscene telephone calls to his wife were confirmed by her. As will appear later I found her a highly credible and creditable witness.

302. The term confabulation in psychiatry, means to fabricate imaginary experiences as a compensation for loss of memory. I accept the Plaintiff's evidence that these events happened. They may loom large in the consciousness of a man who endured the experiences of the past ten years but I have no doubt that he did not fabricate them.

303. Sir Martin Roth in his review regarded the Plaintiff's premature birth as of significance. In his report at p.5648 he said:

"As a premature infant he would probably have been delicate and fragile...a close special relationship with selective attention may have developed with his mother and continued into formative years. Some of his anxieties about health and his proclivity for seeking medical care might have developed from such beginnings. But he does not respond to enquiries about his prematurity and its possible effects on him." [my underlining.]

304. In his evidence in Day 72 (Transcript p. 41) Sir Martin Roth examined what he regarded as the "special advantages, certain qualities" which accrued to the Plaintiff as a consequence of the "intense attachment and bond with love and devotion" of mother and prematurely born child: they were confidence, self-regard, a powerful impetus in development, a special capacity for aspiration and carrying aspiration into achievement. I do not understand the Professor to suggest these were the seeds of any personality disorder as such but the key to certain obsessional and paranoid traits as he described them. [see p.5651-5652 - vol. 16(m)(2).]

305. Using this as the pivotal background Professor Sir Martin Roth suggests that the disadvantage which can accrue, and which he suggests accrued to the Plaintiff, is a very strong self-regard, lacking that element of self-criticism and self-discipline and self-control and humility "which is needed in individuals trying to adapt to any complex and competitive society".

306. There are a number of events and relationships which Sir Martin Roth considers as having resulted from these "deficits" as he terms them. Before I deal with them individually I should state that with very great respect to Sir Martin Roth who is undoubtedly eminent, if not pre-eminent in his field, he has viewed these factors essentially on the basis of a one-sided version. Moreover he did not have the advantage that I had, of seeing some of the personalities involved and the broader picture. I regret that I find that in a number of respects he adopted the management view, expressly or impliedly, and appears unconsciously to have moulded his understanding of other events to conform with that view.

307. In dealing with the Plaintiff's relationship with the Puerto Rico Symphony Orchestra little if any account seems to have been taken of the evidence of political, racist and national fervour in a highly volatile region.

"Once he enters the post in Puerto Rico, we find that he is in difficulty. He says that the difficulties emanated entirely from the hostility, the failure of recognition. The faults on the part of management of those responsible for the Puerto Rico orchestra."

All this of course is nearly twenty years ago and we are bereft of first hand evidence from participants other than the Plaintiff and a letter from the Music Director of the orchestra concerned for the first two years of the Plaintiff's three year engagement. But the letter goes some way to support the Plaintiff's version. Sir Martin Roth nonetheless links it with what he describes as "The conflict with the orchestra in many ways (during 1980-87)" with "the evidence of maladjustment that was manifest." I have already dealt with this period at an earlier stage of my judgment. Although there is clearly a demanding element, the Plaintiff was intent on securing compliance with the contractual provisions. He took the view, a not unreasonable one in Hong Kong, that he would have to fight his corner. His demands were not, I consider, as categorised - "excessive for anybody beginning in a new position" - nor was there "abrasive interaction." It is not unknown for a specialist in any particular sphere to elevate his skill in such sphere to a level above others in order to lay the basis for particular consideration. Trades Union have been doing it for years on behalf of their members.

308. The Professor also accepts without question the management attitude towards the premises rented as a practice studio. This aspect became in the management's eyes an abuse of special facilities by the Plaintiff. I will not rehearse the details and arguments but I do not on all the evidence I have heard and read consider that there was any misuse or abuse of that facility. It was raised as such late in the day, long after the the Plaintiff openly held Young Audience classes in it.

309. Another feature relied upon by Sir Martin Roth as a prelude to the events of 21st June 1987 was the "failure of ventures which appear to be highly ambitious". He was referring to the business of Philips Asia Percussion Enterprise.

"There is evidence that financial difficulties accumulated as a result of plans that seemed expansive and perhaps over-estimated his ability to carry them into effect."

The decline of this small business did not in fact commence until after the incident of 21st June 1987 when the Plaintiff became ill. It survived for a little while thereafter on the impetus and goodwill generated from its inception, particularly with the companies with whom contract had been made at an early stage. It was a fairly modest business at that point though no doubt there were ambitions for it. The capital used was on a minor scale. It was an adjunct to his musical career, complementary to it, to which there was as I find, the necessary degree of commitment, but without significant financial risk. In the light of the true picture of this small trading business, Sir Martin Roth's comments fall away.

310. It is clear that Sir Martin Roth set considerable store by his assessment of the Plaintiff's "grandiosity" and "expansiveness". He referred again to the "grandiose" and "impracticable plans for commercial ventures" in Hong Kong. "In his very small world, he does not identify sufficiently with others" (Transcript Day 72-p.64).

311. He cited the car collision in Washington as a fabrication of a paranoid kind, and the matter of the concert in Korea, when the Plaintiff thought "The orchestra might be bombed". I have already dealt with both matters and in my view Sir Martin Roth somehow obtained a distorted view of these. The second incident is in no way bizarre or remarkable. The desire to ensure that the orchestra and instruments were fully covered in a particular event which, had it occurred, may well have entitled an insurance company to invoke an exclusion clause to avoid liability under a policy, was sensible, practical, acknowledged to be so and acted upon. I was surprised to see it, and other incidents, feature as persecutory ideas. Somehow Sir Martin Roth must have been led to believe that the factual basis of these incidents was either lacking or minimal. As a consequence he considered that there was a "continuity between the events we have about his adjustment and his interpersonal relationships....., before 21st June 1987 and afterwards, and I think that the same personality traits are manifest and this continuity exists only in the sense of a more prominent form of the same psychological attitudes which were already manifest before the litigation began, before Mr. Philips made the flight from the rehearsal hall. I do not think they can be a consequence of the experience he went through of the exposure to pesticide in the light of what we know".

312. Once the relationships and incidents referred to by the Professor are seen in a more balanced light, both sides of the coin having been examined, and in their proper context, with the factual background, such views of the pre-existing psychological attributes and the continuity, must fall away because the basis for them has gone.

313. Two other matters were considered by Sir Martin Roth to be of significance in that they affected his view of the Plaintiff's reliability. One was the holiday in England in July/August 1987 shortly after his return from San Francisco, when a car was hired by him; I accept the evidence of the Plaintiff in that regard - I do not consider that he was evasive - and more particularly that of his wife. The other related to the extent to which the Plaintiff performed in the 1988/89 season. Sir Martin Roth said - "He played an entire season and I cannot believe that he could have played an entire season, in which no defect in his performance was judged to be present......". However he seems to be unaware of the contents of the letter from the solicitors to the H.K.P.O. dated the 23rd December referring to the fact that "he rarely performs a full concert or rehearsal, much of the timpani work being shared by his colleagues" [Vol. 29MS p.9469]. Alternatively he had overlooked it.

314. At pages 78 to 84 of Transcript Day 72 Sir Martin Roth sets out his explanation of "his flight [being] informed by a purpose". The Plaintiff's interest in litigation to compensate him for his experience and any short-term or long-term disability is highlighted as some unnatural reaction or indicative of some purposive manipulation of his physical or mental state in order to maximise the financial "gain". The Professor fixes upon an "oscillation between the need to maintain his employment as a source of income and the desire to pursue litigation as far as he could carry it". I do not find the interest in litigation in this day and age (and in 1987 in Hong Kong) at all unusual. I am quite satisfied that a person who had experienced what Mr. Philips experienced, would, with every justification, feel aggrieved, frightened, and worried about the possible effects of long-term poisoning and without much, if any, encouragement would be thinking in terms of compensation from the wrong doers. I see no such oscillation in relation to employment and the pursuit of litigation. In my earlier review of the period from June 21st 1987 until the end of the contract in June 1989 I have dealt with the position and developments which feature in Sir Martin Roth's hypothesis. For the reasons I have set out, I do not consider such a theory holds water. The view held by Professor Sir Martin Roth of the Plaintiff's personality and relationships prior to 21st June 1987 is vital to his diagnosis of the Plaintiff's post-incident mental state. Because that view had been formulated on a mistaken basis both as to the factual context of certain matters and the one-sided view of his relationship with the management of the H.K.P.O. it must necessarily affect, and does affect the validity of his short-term and long-term assessment of the Plaintiff's psychiatric and psychological state.

315. He was asked in cross-examination by counsel for the 3rd Defendant, Mr. Ronny Tong Q.C., (page 120 - Transcript Day 72) whether, assuming the incident of the 21st June 1987 had not occurred, the Plaintiff's pre-morbid personality (as Sir Martin Roth assessed it) may have led him to a similar "flight" when he encountered "another stressful event or episode".

316. Sir Martin Roth set out his basis for the pre-existing personality disorder - "a cluster of features which accord with a known form of personality disorder and there is a wealth of evidence, this diagnoses can be made on the basis of historical evidence and exploration of the past". When asked if his notion of a flight into illness could have arisen at some future occasion if the events of the 21st June 1987 had not occurred, Sir Martin Roth stated that such a situation would have had to involve an injury, or possible injury for which the Plaintiff would consider somebody to be responsible.

317. Professor Sir Martin Roth does not of course accept Dr. Singer's diagnosis of severe depressive illness but agreed that whatever diagnosis was correct some improvement would be demonstrated following the conclusion of the litigation.

318. A central part of the Professor's analysis was that the events of 21st June 1987 provided an opportunity for a flight. The evidence relied upon by him was firstly, difficulties with his business - it was not thriving and the profits were declining in 1987. At the time of his first report the Professor had no evidence to support this conclusion other than an overall view he formed of the scope and character of the business activities specifically with reference to plans to sell 100,000 organs to China which he considered to be beyond the capacity of a two partner business. He marked that down to the Plaintiffs tendencies to exaggerate and be grandiose. It is clear to me that there was very little evidence on which he could base that conclusion other than the bank statements which were not available to the Professor until a few weeks before he gave evidence. Those statements, limited as they are, do not support the contention of business difficulties. It became clear however that the Professor was placing greater emphasis upon what he regarded as the failure of the Plaintiff's personal relationships with the orchestra and wider a field in musical circles in Hong Kong.

319. When the Professor's analysis was tested by inviting him to consider the evidence given by members of the orchestra, which evidence clearly, conflicted with the bold general assertion he had made of "failure of his personal relationships within the orchestra", I detected that he was seeing evidence of an aspect which he had not taken into account. Reading through the way he dealt with it and calling upon my recollection of how the Professor reacted at the time, I concluded that he was somewhat surprised. He was constrained to concede that it was of some value but seemed reluctant to take any of the comments at face value. He was asked to consider the Plaintiff's contribution to "Young Audiences" in Hong Kong and his answers tended to suggest that the Professor sought to detract from the Plaintiff's involvement in the activity and was concerned with matters best left to the advocated for the defendants.

320. Apart from a number of other matters to which Sir Martin Roth attributed significance, with which I need not deal since I had already reviewed them at an earlier stage, the Professor set store by a remark alleged to have been made by the Plaintiff to Marc Frushell, as he was being placed in the ambulance. Mr. Frushell's recollection was that as the Plaintiff was being taken into the emergency room from the ambulance the latter said to him "Do not forget this" [Vol. 12W. p.4025] [Vol. 26 (V) 3 - p.8115]. Sir Martin Roth's recollection of the extent of the remark and where it was alleged to have been made is at fault [see Transcript Day 72 - p. 49 & p.83] - he added to what Marc Frushell recollected and timed it at the Plaintiff's entry to the ambulance. Marc Frushell did not know what he meant and never asked him. No one else heard the remark, or recollected hearing it. The Plaintiff was not questioned about it. I decline to accord any significance to it. It could have meant a number of things and I am sure that the Professor, although inviting an alternative interpretation to that put on it by him would, on objective consideration, accept that in his search for items to support his analysis, he has attached an insupportable significance to it.

321. One other aspect of the Professor's hypothesis calls for close consideration. [Transcript Day 73, - p.27-28] He was invited to consider evidence of the Plaintiff's reluctance to have an ambulance called and when it arrived, to get into it. This evidence did not in any event sit easily with the notion of eager self-referral to hospital or for other medical or quasi-medical treatment. The Professor had not in fact been aware of it. Nonetheless he sought to explain it in terms of the Plaintiff rationalising the situation to the extent that he may have been uncertain as to whether medical experts would confirm his condition and therefore lend support to a claim for compensation for injury and damage. In clarification of his view, Sir Martin Roth said-

"He might not have wished to be taken to hospital because he might have been uncertain as to whether a detailed medical examination would substantiate the picture he had worked out as needing to be presented in order to demonstrate that he had suffered damage .... he had already decided to try to make something of this incident for gain."

With great respect to Sir Martin Roth's eminence and ability and long-standing experience, I do not find that explanation tenable in the light of the evidence. No one has maintained that the bronchospasm or bronchial reaction was other than a genuine one and Sir Martin Roth himself accepts that he had a bronchospasm [Transcript Day 73 - p.33]. Although I am satisfied that the Plaintiff's interest in and desire for compensation arose very quickly after admission to hospital, even in 1987, given general awareness of and encouragement of rights of recourse for the torts of others I do not find that at all surprising. The notion that he was hesitating about accepting medical examination and treatment for the reason advanced, has no credible basis.

322. As I mentioned a little earlier the Professor placed great emphasis upon the Plaintiff's relationship with the orchestra, or more particularly, as he later defined, with the management of the orchestra. In his report [Vol. p.5656]

"There is reliable evidence that non-musical factors were the causes of his failure to secure a further contract in August 1989."

Since Mr. Crabtree, the then General Manager of the H.K.P.O. was unable to advance any satisfactory explanation as to why the Plaintiff's contract was not renewed, it is difficult to see how Sir Martin Roth could advance any explanation, particularly since he had not had available to him a large number of documents from the board of management which were disclosed very late into the trial. Undoubtedly the Professor based his views on the contents of certain statements from members of the management. I think he did form a one-sided view and he certainly took the view that the Plaintiff was a demanding, assertive party to a contract - as indeed I have already found that he was - whereas he should have been more compliant, willing to compromise, conciliatory perhaps. But his replies clearly indicate that he was accepting the statements of Mr. Duffus and Mr. Crabtree as being wholly accurate and unvarnished versions of what transpired. I believe he was seriously mistaken so to do and has misled himself in his evaluation of the evidence upon which he has relied for his hypothesis and his assessment of the Plaintiff's pre-incident personality in particular.

323. The Professor's diagnosis in November 1996 having taken into account his neurological assessment - the Plaintiff was "putting it on" he said - was of a conversion disorder. He agreed that a "factitious element was not regarded as significant in the general diagnosis of conversion disorder". What determined him to move away from that diagnosis was what he described as "the vast body of evidence about lack of effort in carrying out tests subverting tests, neuropsychological tests". In fact there was very little difference if any between Sir Martin Roth's neurological findings and those of Professor Swash, as was pointed out to Sir Martin Roth, and he relied more particularly on Professor Gordon's evidence and referred also to Professor Cornblath's findings, the latters not being evidence in this case. The factitious element, Sir Martin Roth now concluded, is far too great for him to leave out.

324. Sir Martin Roth wanted to add "factitious disorder" to his diagnosis of conversion disorder but indicated that in defending his "rather personal use of the terms", he was including malingering in his factitious disorder. He had changed his diagnosis to reflect the view of the experts, no doubt Professors Swash and Gordon and particularly on their reports.

325. The problem to be encountered in assessing the validity of a subjective judgment, leaving aside the difference between the definition of the term 'hysterical' in a chapter of the Professor's text on Psychiatry (co-authored with Dr. Slater and published in or about 1969) and that which is to appear in the new edition, is best illustrated by the example quoted by Dr. Slater of a number of patients diagnosed as hysterical, many of whom, to the embarrassment it appears of the physicians, turned out to have an organic basis to their condition. Although suggesting that that was not the situation in the Plaintiff's case, the Professor went a little further and sought to discount the concession made by Professors Swash and Gordon, that in their neurological examinations they could not exclude the presence of a subtle, neurological deficit.

326. Dr. Karam Singer, the Consultant Psychiatrist in Hong Kong who has been in practice for over 30 years, has far less overall experience of course than Professor Sir Martin Roth, but had the advantage of first seeing the Plaintiff in early 1990. At that time Dr. Singer characterised the Plaintiff's psychological disabilities as 1) depression of a severe degree; 2) a personality disorder of a severe degree, manifesting itself by excessive sensitivity concerning his disabilities, low self-esteem and a sense of humiliation and discrimination, which impairs his capacity to cope in the professional, social and sexual spheres; and 3) Hysterical (compensation) Neurosis suggested by certain physical features which appear to be disproportionate to any organic basis e.g. right-sided weakness with severe inco-ordination and unsteadiness. It is however a disorder which is genuine i.e. unconsciously motivated. Dr. Singer sets out the stresses which at a later stage Professor Sir Martin Roth discounts - the accident and its immediate physical consequences as well as subsequent psychosocial consequence identified as hospitalisation, disruption to normal pattern of life, worry about loss of profession, interpersonal conflicts, delayed resolution of litigation.

327. The neurological aspect of the diagnosis was toxic encephalopathy and vestibular dysfunction, manifested by complaints of lower mental acuity and incoordination, such features being consistent with the neurological sequelae described for the late stages of organo-phosphate poisoning.

328. Dr. Singer had conducted a neurological examination noting slow gait, wide-based, with some dragging of the feet and clumsiness. Motor-power in the right limbs seemed less than in the left. Rombergism he found positive as were the finger-nose and knee-heel tests. There was no nystagmus. The Plaintiff was complaining of diplopia. There is no note of any complaint in respect of hearing viz. tinnitus. Dr. Singer concluded that his disabilities, physical, and/or psychological, were caused directly by the incident of 21st June 1987.

329. When he gave evidence (Transcript Day 67 p.57) Dr. Singer made it clear that when he diagnosed personality disorder in 1990, it was not with the definition that it currently has, namely of long history with an element of constitutionality, or pre-disposition with a longitudinal dimension. He rejected the notion that the Plaintiff's current state reflected a personality disorder in the current sense as set out in DSM IV - General diagnostic criteria for a personality disorder - or, as advanced by Professor Sir Martin Roth, a pre-existing disorder of personality. He takes issue with two matters that emerge from the admissions to the Presbyterian Hospital in Pittsburgh in 1968 and 1970, both of which I have dealt within an earlier section. The vasomotor instability at the age of 18 years (still a college student) Dr. Singer regarded as of little if any significance and not justifying a diagnosis of a personality disorder even if it had happened at a later stage. Such a state can happen to a lot of people. Similarly in relation to the unexplained headaches which led to the later hospital admission, Dr. Singer makes the point that the majority of headaches do not have any physical or psychological cause. The discovery of an inflamed or infected sphenoid sinus which was relieved by antibiotics, was not in Dr. Singer's view, nor my own, purely coincidental. The relief from headaches prior to this may well be accounted for by rest in hospital away from an environment or circumstances which had facilitated the emergence of headaches which had an organic source. That I regard as a matter of common experience rather than one requiring expert evidence.

330. The view held by Professor Sir Martin Roth that the Plaintiff had demonstrated a "a sustained incapacity for forming satisfactory working relationships" which featured large in the former's diagnosis of personality disorder was not shared by Dr. Singer. For it to have such significance it should be severe enough to impair one's social and/or occupational functioning. It was not his view that the Plaintiff's pre-incident functioning was so impaired. There is not in my judgment the evidence to support the contention that he had such a sustained incapacity. Difficult even demanding, though he may have been, he could not justifiably be categorized in the way Sir Martin Roth advances. Dr. Singer could not find any evidence of personality disorder prior to the incident and this opinion does not in fact surprise me when the events which have been reviewed repeatedly in the course of this trial are seen in their proper context and from a balanced perspective. Furthermore he does not meet the criteria of DSM-IV for a paranoid personality disorder. Equally since Dr. Singer has excluded pre-incident criteria, he does not meet any diagnosis which is premised upon such.

331. Turning to Dr. Singer's diagnosis of conversion disorder, he made it clear that such disorders can and often do exist as an overlay of organic disorders. He based his diagnosis upon the presence of an organic condition, and made it because of the severity of complaints relating to the organic condition.

332. The emphasis Dr. Singer makes is on the stresses which operated on the Plaintiff's mind as a consequence of the incidents of 21st June 1987, and which he set out in his explanation of the Hysterical Neurosis. There is no history of any escape from stresses prior to 21st June 1987 and this counters the speculative hypothesis of escape. At the end of his third report (February 1997, - vol. 15 M1 p.5739 (34-35)), he concluded that the Plaintiff's disabilities were both organic and psychological, that he was not faking his symptoms and that they were all a direct consequence of his exposure to organo - phosphate on the 21st June 1987. In his evidence he was more inclined to regard the organic symptoms as having the greater responsibility for his disabilities. Dr. Singer was asked to consider his diagnoses within the framework of DSM IV (Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association, and he did so both in relation to his 1990 report and also that of 1997. These are, of course, labels of convenience, and what matters most is the diagnosis made by an experienced psychiatrist together with the criteria adopted.

333. Dr. Singer's diagnosis of conversion disorder is predicated on the basis that the Plaintiff is not consciously deceiving or fabricating. If it were conscious it would be malingering. In a conversion disorder the person believes he has an illness.

334. In the course of cross-examination, Dr. Singer gave as his view that the Plaintiff became sensitive, or over sensitive about incidents and situations which he perhaps misinterpreted or "over interpreted them in a suspicious way." He went on to say:

"... People with organic syndromes are very likely to do these things. They are very likely to become hysterical. One of the features of being hysterical, or a conversion disorder is exaggeration, a sick person will exaggerate."

335. He agreed that it was, or is, possible for a person to escape into a career of illness in order to resolve his stresses but thought that the more likely explanation was that the events of the 21st June were themselves stresses which could sufficiently account for his subsequent illness. But Dr. Singer took issue with Professors Swash's diagnosis of simulated neurological disorder which Professor Swash in his "Discussion" section of his report (Vol. 16M(2) - p.5809) described as a functional disturbance which might be regarded as a hysterical manifestation or even as malingering. There was a danger Dr. Singer said [Transcript Day 68 p.51] in diagnosing hysteria where no evidence of a physical lesion could be found in a neurological case. There are many instances in his experience of cases being diagnosed as hysteria where later neurological conditions have been found. In effect he deprecates the approach whereby a diagnosis of hysteria is made because there are symptoms which cannot be explained by an organic cause-accordingly a psychological tag is given to it. Professor Swash as we have already seen, found no neurological basis for the symptoms but conceded that some mild neurological deficit might well exist to account for the Plaintiffs symptoms notwithstanding his own findings, or lack of them.

336. Dr. Singer certainly regarded the Plaintiff as less motivated at the end of the 1988/89 season with the orchestra; he having been disabled to a certain degree was making mistakes, performing with difficulty and receiving criticism and as a consequence, his artistic ability fell short of his own standards, and, he believed, of those who employed him. The depression was the cause of loss of motivation.

337. As to grandiosity Dr. Singer's view was that there was an element of this after the incidents but not before. For the reasons already implicit in my review of events up to 21st June 1987 I accept Dr. Singer's view, and I also regard the references to a God-given musical talent as being "within normal limits" and certainly not outside human experience of well-balanced, well-motivated, talented artists who ascribe the source of ability to other than inheritance or hard-work. There is certainly evidence after the incident of the Plaintiff exaggerating his importance, the significance of his own inventions, and displaying a degree of arrogance as Dr. Singer concluded, but this was not the case prior to the incident. He rejects Professor Sir Martin Roth's view of "the histrionic element which compels him to dramatise and exaggerate experiences, discomfort and illness and animosity towards others as pre-existing the incident."

338. Dr. Singer concluded by stating that the Plaintiff was faced with a severe physical stress, and a psychological stress which sufficiently accounted for the conversion disorder. He rejects any notion of an escape into illness in August 1989. He was well, up to August 1989 - he was improving though not to the extent of complete recovery, and there were fluctuations. Had there been any such escape he would have worsened in February 1989 when informed that his contract would not be renewed. I have no hesitation in accepting his evidence as the fair and objective assessment of the Plaintiff's state. He is virtually at one with Dr. Gummow.

XIV Subsequent Unrelated Medical Developments

A. The Significance of Diabetes Mellitus

339. This is a non-insulin dependent, mild condition in the Plaintiff which was diagnosed in early 1994 and may have developed in late 1993.

340. I have dealt with earlier glucose tolerance tests. I am satisfied on all the medical evidence that the diabetes was not longstanding. Since it did not develop until late 1993, and there is clear neurological evidence well before then as to the Plaintiff's neurological deficit, e.g. Dr. Petajan's findings in January 1992, it has played no part in his present condition. I do not accept that its development was in any event inevitable but even if I were to be wrong in that regard, such is its mild state that had the Plaintiff been in an orchestra, it would not have inhibited his performance, or the length of his career.

341. Dr. Jamal's evidence (Day 43 - p.77-84) considers the position in some detail. Diabetic neuropathy is detectable on neurophysiological examination. None of his findings, either normal or abnormal were consistent with it. Had it existed he would have expected "a kind of diffused, generalised involvement of most of the components." There was none. I accept his evidence and that of Dr. Hayse who explained in some detail the interpretation and validity of glucose tolerance tests and the current use of glycosylated haemoglobin. The present position is that with minimal medication the diabetes is so controlled and minimal that the Plaintiff "would not suffer any of the symptoms or complications of diabetes". "Essentially he has been in the non-diabetic area". [Day 55 - p.17].

B. The Significance of the Cardiac Condition.

342. The Plaintiff underwent angio-plasties between 1994 and 1996. In December 1996, shortly before his departure for Hong Kong for the beginning of this trial, he was admitted to the LDS hospital in the State of Utah and a left and right catheterisation of the heart was carried out. Function and pressures were normal. There was no evidence of any coronary artery disease, nor any of narrowing of the area previously dilated. There is no evidence to suggest that he has any problem in this regard. At some stage in the course of this trial an attempt was made on behalf of one or more defendants to adduce evidence as to the Plaintiffs life expectancy. My reading of the medical reports to that date had not revealed any consideration of such a topic. I did not allow such evidence to be introduced. It was not raised subsequently. There is no evidence in this case to suggest that the Plaintiff has anything other than a normal expectation of life.

XV The Literature

343. Prior to and in the course of this trial a vast amount of literature has been introduced which I have read at some stage or other. It divides itself essentially into two areas; that dealing with pesticides, in particular organo-phosphates, their toxicity, and necessary precautions, widening the world's knowledge about them and the need for awareness of the risks; and the other dealing with the development of medical knowledge about the diverse long-term effects upon the human body and mind of such exposure. Inevitably the two areas overlap. The division is perhaps rather artificial.

344. I do not propose to review this material in this judgment although the temptation to do so is great. If I were to do so the judgment already long would be unwieldy. The material gives a fascinating insight into the variability of the human body and its infinite responses. As if the example of DDT had been lost to the memory for a while, it reminds us of the essentially unknown and largely unpredictable consequences initially, of the use of chemicals in an insufficiently protected environment. It highlights the need for ever continuing research and how alert responsible bodies must be to the side-effects of scientific developments in this field and that such descriptions of toxic material as "almost safe", "virtually harmless" and "relatively non-toxic" are irresponsible misdescriptions. The ever questioning and untiring search of the medical and quasi-medical profession for greater knowledge in order to treat and prevent illnesses consequence upon exposure to pesticides is demonstrated by such seminal works as Ecobichon and Joy's first two editions (1982 and 1994) of "Pesticides and Neurological Diseases". Such treatises are never meant to be a substitute for clinical and scientific testing or sound medical judgment but highlight the medical professions own need not to be dismissive of explanations unless, by all known parameters and material, they cannot be supported. There are no true frontiers. In this case the wealth of written material has shown that the proven cause and effect of this Plaintiff's condition should occasion no surprise.

XVI General and Miscellaneous

A. Medical Expertise

345. I am of course conscious that in considering a vast amount of medical evidence from a large number of distinguished experts in their respective fields I have, of necessity, preferred the evidence of some against others and sometimes appeared to be critical in so doing. I make it clear that such criticism is not directed against their ability or standing in their chosen field. I am in no way qualified so to criticise nor do I wish to do so. I am concerned with resolving a conflict of acknowledged experts in the areas of evidence where much of their opinion is based upon their view of certain facts. Where I have resolved a dispute with a particular result that will lead inevitably to an express or implied preference for one view as opposed to another, such is not to be taken as a reflection upon the inherent expertise of a medically qualified man in the field of medicine in which he has attained excellence.

B. The Peripheral Issues.

346. During the trial a number of minor issues arose, some of which were clearly peripheral from the outset, and others were shown to be so in a short period of time. I have dealt with very few of them. I do not consider it necessary to deal with the remainder. It does not matter in my view what the area of the practice facility at Universal Towers was; why the Plaintiff received some form of "counselling" from a person at St. John's on the departure of a friend from Hong Kong in 1983 or 1984; or how Dr. Yau came to write "left wrist" in his notes when he so clearly meant "right wrist". There are many examples of equal unimportance. Counsel will understand my having somewhat peremptorily sought to keep the sea-lane clear of flotsam and jetsam, and not always succeeded.

C. The Velsicol Proceedings.

347. The significance of these proceedings lies only in that it was an evidence gathering exercise of dubious justification. It was in my view a lawyer-led escapade into a "dead-end alley" from which the Plaintiff emerged more frustrated, more bitter and probably more impecunious. It had received an impetus from a Doctor whose research and claimed expertise is, I am told, now discredited. The Plaintiff was probably "lobby-fodder" for this diversion. Other than the availability in this trial of some of the evidence gathered in those proceedings it has no relevance. It did not affect the Plaintiff's condition. Nor can he be criticised for pursuing those proceedings to the extent they were pursued.

D. Extraneous Factors.

348. Both the 2nd and 3rd Defendants in particular have raised arguments that a number of factors in the Plaintiff's life are determinant of part of his present condition and are "novi acti". They include occasions on which he was further exposed to pesticide either in the rehearsal hall subsequent to the 21st June 1987 or in restaurants eating vegetables. These events are not "novi acti". They proceed from the original sensitisation on the 21st June or they are unrelated events which had no more than a transient effect resulting in some symptoms which caused a short period of hospital treatment or observation. There is no evidence in any event that they were individually responsible for any of the long-term sequelae which I am satisfied proceeded from the events of the original inhalation in the rehearsal hall.

349. Other events such as litigation, Dr. Rea's intervention, the Plaintiff's conflict with the Teton Mental Health Centre, his appearance before the House Committee followed by illness are suggested as contributory to his present condition. Unarguably in my view they are not. They are manifestations of the condition brought about by the exposure to pesticide on the 21st June 1987. I do not accept that anything he has done has aggravated his position. Whatever steps he has taken, or have been taken on his behalf, including those which may have delayed his recovery, or expended energy or money with no result, have been taken as consequence of the condition he had reached as a result of that exposure.

XVII Summary of Conclusions and Defendants' liability

350. The Plaintiff suffered organic and then psychiatric injury as a consequence of an exposure to airborne diazinon solution in the Rehearsal Hall a little over ten years ago. That has left him with mild or subtle neurological deficits compounded by a psychiatric condition, itself directly attributable to that original insult. The prognosis is poor but I think that there will be some degree of recovery.

351. In my judgment it is not open to any of the Defendants to argue that injury to the Plaintiff was not foreseeable. All the documents, literature and knowledge available to them made it entirely foreseeable that injury (even the particular type of injury) might result.

352. All five Defendants were negligent and in breach of their duty of care in causing what happened to him and are answerable in damages. I will now set out my findings in respects of the degrees of responsibility as between each other, there being third Party and Contribution Notices between them.

353. Ciba as the original developers and manufacturers, and in this case the importers, had substantial responsibility to ensure proper labelling, dissemination, instruction and overall stewardship. They failed in all respects. It is not necessary to re-iterate the details. They must bear the major responsibility. I assess it as 35 per cent.

354. WCH was the distributor to Exclusive. They were badly served by Ciba but compounded these shortcomings by their own clear deficiencies. I assess their responsibility at 20 per cent.

355. Exclusive suffered from the failures emanating from Ciba, continued by WCH, but had their own inadequacies. I think they had access to pest control information which they did not apply. Their system was deficient in many respects. I assess their responsibility as 20 per cent.

356. The APA knew of the risks. They had a poor system of management and control. Their responsibility is 15 per cent.

357. The H.K.P.O. also had poor management, supervision, and control. They did not provide a safe place of work. Their responsibility is 10 per cent.

358. The contract of hire between the 2nd and 3rd Defendants contains an indemnity clause (§9) [Vol. 13w- p. 4207] requiring the 2nd Defendants to indemnify the 3rd Defendants against claims in respect of injury to any person arising from the hirer's use of the venue. This does not require the 2nd Defendant to indemnify the 3rd Defendants in respect of the consequences of the 3rd Defendants own negligence or breach of duty of care as occupiers. [see Canada Steamship Lines v. The King 1952 A.C. 192 - and - Smith v. South Wales Switchgear Co. Ltd. 1978 1.W.L.R. 165]

XVIII DAMAGES

A. Pain and suffering and loss of amenity.

359. The effect of the exposure to the chemical diazinon on this Plaintiff has been disastrous. The initial period of treatment, particularly the first two months included an element of considerable anxiety, and, I do not doubt, fear. That was essentially in relation to the physical consequences. Shortly thereafter the preoccupation was with whether he could survive as a musician. He has, in my view quite understandably, sought medical treatment and opinion. None of his actions in that regard was unreasonable. After ten years he is left with some minor degree of neurological impairment but a psychiatric condition which noone thinks is capable of much improvement. I do not need to review all the aspects of the initial trauma or the subsequent findings and diagnoses which I have accepted.

360. Eight years ago at the relatively young age of 39 he lost his career as a timpanist. Even if he were to make a substantial recovery in the early future he will never recover that. It is difficult for the vast majority of people to understand the extent of the loss of an artistic career to someone whose training and mental and physical development have been geared to the production of music. Although I am not certain that he will continue to be unable to teach or take part in some form of musical group, I have to approach the evaluation of this loss on the basis that it will be almost a complete loss. It is one thing for a musician to have to adjust because advancing age, or infirmity or some other innocent event has deprived him of his career. For this Plaintiff the long struggle to show that it was the, extreme in my view, negligence of others which has cut short his career, makes an adjustment less likely, even given favourable factors, such is the psychiatric involvement. The evidence suggests that most principal timpanists occupy that position for their performing life-time. This Plaintiff has also lost two other opportunities - one of contributing to the development of timpani in the form of his patented mallets and allied ventures, and the other, in the loss of a business which even on a small scale had international dimensions which would have kept him in contact with his peer-professionals. For him his musical extinction is almost complete.

361. I do however see some glimmer of light. I am sure that the end of this litigation will give him a more optimistic outlook on life and make his walk a little lighter. The sense of justification and vindication with the element of compensation will combine to restore some of that determination that he demonstrated so readily under Dr. Julian Chang's aegis. He will then see himself as less damaged than he appears.

362. His marriage has for some years now been a marriage only in name. The dedication and support of his wife has been clear. She is obviously a strong character. She has needed to be so. I think there will be some recovery of that status and clearly a progressive return to cohabitation will be conducive to that.

363. I have carefully considered a number of cases including Chan Pui Ki [1996] 2 HKC 565 and Chun Yat Nam [1995] 1 HKC 218 both Hong Kong Court of Appeal decisions. Applying the guidelines set out by the Court of Appeal the appropriate category is that of gross disabilities. In my consideration of the figure I have also had regard to the level of damages in the United Kingdom and have concluded that there is no appreciable difference either in approach or in quantification. The figure taking all features into account including those which have not been re-iterated by me above, is $750,000.

B. Loss of earnings

1) Employment as a Principal Timpanist

364. He had been employed with the H.K.P.O. for 9 years. His successor, Mr. Malcolm Brashear is still so employed. I am satisfied that but for the incident he would have remained so employed. It is probable that on occasions he would have auditioned for vacancies in other, somewhat more renowned, orchestras. If he had been successful, and that is somewhat speculative, it is by no means certain that he would have taken up the post. He had established a firm base in Hong Kong, with commitments and roots. His business had not been long in existence. As he explained, auditions for vacancies with other orchestras were a means of "stretching" oneself professionally, as well as gaining artistic satisfaction. His reputation within the H.K.P.O. as a musician was high. "He was a good player... he had very good credentials and lived up to it" said Lee Humphreys in his deposition. There is no evidence to gain say that. The "pull" of Hong Kong was another factor likely to commit him to a long career with the orchestra here. He himself had said at Day 8 p.27 - "Few positions in the lifetime of a timpanist that are open because when a timpanist gets a job he usually keeps it for a lifetime." This was confirmed by Mr. Brashear's own evidence on this topic. I think he would have stayed with the H.K.P.O. to date and for the foreseeable future with the possibility that at some time within that overall time scale he would have left only to improve his status, i.e. a better orchestra, and income.

a) The loss to date.

365. I have taken the calculations over exactly 8 years (i.e. to 31st August 1997.) and applied it to the calculations provided in the letter of 30th May 1997 from the 2nd Defendants. The total gross figure is therefore that set out at § 19 of the Plaintiff's submissions on page 4 of the "Damages" section:

HK$2,958,478.

b) The future loss.

366. This will therefore run from 1st September 1997, the multiplier, taking into account his age (47 1/2 years) and the other factors such as his overall likely state of health had the incident not occurred, should be 10. There is no reason to conclude that artistically his life would have been shorter than the norm. The agreed figure for the post he used to hold is $653,275.40 per annum. The gross loss therefore:

HK$6,532,754.

There will be a deduction for the E.C.C. payment.

2) Private Tuition

367. There is clear evidence that he gave private tuition to a varying number of pupils over a period of years. At the time of the incident he had about 10 pupils. A number of other members of the orchestra had pupils. The fees charged varied. The Principal Timpanist currently charges $400 per hour.

368. The Plaintiff's rate of $200 per hour in 1987 is agreed. That would have increased over the years. The number of pupils would have varied over the years as well. For some periods it would have been less than 10, for others possibly a few more, say 12. Although he says the average number was 12 I have to bear in mind that the business may have started to take up more of his time and the average weekly number would probably have been 10. I think a proper figure representing the total loss to date is.

369. The continuing loss must be calculated, I find, on the basis that this source of income would have continued for the rest of his professional career with the orchestra and quite possibly beyond the time of retirement; it is not unknown for musicians to give master classes, lectures and hold fee-earning professorships at colleges and universities even before retirement is reached. The annual loss is $180,000 to which I apply the same multiplier on a conservative basis. The total is therefore:

HK$1,800,000

3) Young Audiences.

370. This concept for which there was some enthusiasm as evidenced by documents in the case in addition to the Plaintiff's testimony, was developing in 1986. On occasions pupils or students visited the Plaintiff's premises, and on others, he visited the schools.

371. The rate per students of $10 is agreed. The parties are far apart on the average number of students attending. The Defendants estimate it to be as low as five. That I think is unrealistically low. The Plaintiff's figure of thirty is probably on the high side. It may well have been that number originally, but there tends to be a falling off of enthusiasm for such projects and the average is more likely to be twenty, making for a 24 week season, five concerts a week; $24,000. The loss to date allowing for increases over the years is therefore approximately:

HK$400,000

372. For the future loss another factor must be brought into the equation -I referred earlier to the question of the development of his business reducing his availability for tuition. The same applies in respect of these classes but in this case I think it is the future loss multiplier which I should trim. I therefore reduce it to 6. By now the fee per student would be at least $23. The annual loss would be over $66,000. The future loss on the basis of a multiplier of 6 will be (rounded up)

HK$400,000

4) T.V. Work.

373. The witness Daniel Silver gave good support for the Plaintiff's evidence as to the nature, general availability of, and remuneration for this work, although Mr. Silver was less sure about the availability of work for percussionists and timpanists. Roger Manners did such sessions about 36 times a year. I think this is a highly variable demand though I see no reason why percussionists and the like should be in demand to a lesser extent than other instrumentalists. The rate of fee was also very variable and there was a degree of competition from local players. The average rate on Daniel Silver's figures was about HK$1,000. Two sessions a month would produce about $20,000 per annum. Of course the rate would have increased since 1987. There are a number of other factors to take into account including the Plaintiff's commitment to his own business. For the past loss I will allow $200,000 and a like sum for the future loss. I think his involvement in such work would have become more spasmodic. Therefore:

Past loss: $200,000.

Future loss: $200,000.

5) A Touch of Class.

374. The Plaintiff's view was that there was a demand for such a group. He had played in other groups and was booked to play in Ricardo de Mello's group a few days after the incident. Its anticipated market was hotels, private functions, and possibly clubs. Basic preparatory work had been carried out prior to the incident. I accept the evidence in this regard and also that sometime in 1988, when the Plaintiff was making a determined effort at rehabilitation, with some degree of success, it was anticipated that it could swing into action, hence the music books and the purchase of a "chop".

375. I think the Plaintiff was somewhat over optimistic as to the demand. There were other groups. He had played in them although the evidence does not indicate that he was playing as regularly as he expected to in a "Touch of Class". I am therefore somewhat conservative in my view and will allow that he would have performed about three times a month on average, for an average fee in the region of $750, over the past ten years, taking inflation into account as well. The past loss is therefore:

$750 x 3 x 10 x 10 = $225,000

I will allow for the future loss a similar figure with a multiplier of 6.

$750 x 3 x 10 x 6 = $135,000

6) The Grand Teton Music Festival

376. This was a considerable amenity loss rather than a financial loss but it represented in effect a paid vocational holiday. His airfare was included in the H.K.P.O. allowances. I have no doubt that he would have continued to have performed there after 1987. He had been invited every year since 1980. For how much longer he would have been invited after 1987 is difficult to say. Other timpanists may have been brought in at some stage as a replacement. I have no evidence that the Festival organisers policy has been to retain the same principal performers if they could. However in view of this musician's links with the American Timpany scene and with musical performance generally I am satisfied that he would have continued to perform for as long as he was invited.

377. The period of performance would have been on average 3 weeks, making an honorarium and accommodation allowance for 3 weeks of US$660. The travelling expense allowance is somewhat uncertain. I have decided to treat it on the normal basis - viz. reimbursement of travel expenses. Since he has not been to the festival he has not incurred those travel expenses. The question of increase in honoraria over a decade is difficult to assess without direct evidence. There has been an increase of US$65 over 10 years. I doubt that such payment would increase in line with inflation. It is not that sort of fee. Accordingly I propose to round up the figure modestly to allow for some increase in both elements.

The future loss, to reflect the uncertainty to which I have referred, is allowed on the same principle with a multiplier of 6.

7) Phillips Asia Percussion Enterprise (P.A.P.E.).

378. This business was registered in November 1994. There is a considerable amount of evidence from the Plaintiff and his wife supported by documentary evidence, concerning the way this business was developing and the future plans for it.

379. In 1987 he attended the Frankfurt Fair and he spoke of the agency agreements made. The orders and sales documents indicate the sources and destinations of the instruments supplied. There was a potential - and I stress the word - contract for the supply of a large number of electronic organic from China to the west. The trade from China to the west had already been initiated by the gongs from Wuhan. There is no reason in my view to doubt that this opportunity for a substantial business contract was a real one and not an illusory one. The analysis of orders and sales prepared by the Defendants clearly attest to an active business which started to falter after June 1987.

380. In establishing this business and conducting it he under took no significant financial liabilities. It was run on the strength of letters of credit. Mrs. Phillips controlled the clerical side. Even the evidence of Mr. David Hague confirms that this was a small business opportunity. The statistics to date show a significant market for percussion musical instruments (within which description is included, I anticipate, timpany). The Bank overdraft did not constitute a threat to the business but the Plaintiff's illness was the disastrous influence, on its survival. I prefer the more realistic approach of Mr. David Lee to the viability of this business.

381. The Plaintiff missed the opportunities in the crucial years 1988/89 to move in and develop the market. The orders in the business' financial year ended 1987 showed a healthy trend. The accounts prepared for 1987, 1988 and 1989 do not show a true picture of the business. It is an artificial accountancy exercise to set against the business, expenditure which was either not incurred for the benefit of the business at all, or was questionably attributable in part to the business or would have been incurred in any event. I have to look at the picture to assess whether it was likely to produce income for the Plaintiff, and if so, how much and for how long. The second question is very difficult to answer. It had a short life. The picture of a small family business making no real profit in its early years is typical but it had a healthy order book, he had established productive contracts, it was run on a realistic basis, it was not overstretched. Within a year or two I am sure it would have produced real income and benefit but how much is difficult to say. It would have remained an adjunct of his career as a timpanist which he needed to maintain. The business would have fed off that career - when the time for retirement came he would probably have expanded it as his main source of income. He may have sold it as a going concern. Because of its short duration I cannot pluck figures out of the air but it was nonetheless a real prospect and is not to be ignored. I must therefore assess it on the basis of the loss of a chance or opportunity of prospective earnings. The figure I have decided upon is HK$1,000,000. In order to see how that figure stands up to a form of check I have divided it by 20 to represent 8 years of past loss and 12 years of future loss. The result is $50,000 per annum. If anything I have erred on the low side.

8) The Patents-Timpany Mallets and Robotics.

382. The Plaintiff had developed a new series of multifaceted mallets. The evidence shows some begrudging recognition of this. Most inventors have at least in their own mind a vision of the great advance which their concept will provide. History is littered with examples of ideas and plans which have been dismissed or disparaged - from Icarus' wings and de Vinci's drawings to Barnes Wallis' bouncing bomb and Cockroft's Hovercraft. There is evidence of enthusiasm for his innovations. Patents were obtained, agreements were made and whatever Zildjian may now say in the form of correspondence and an affidavit, their telex which noone seeks to dispute as genuine, indicates a degree of interest which is not to be ignored. But this was very much in its infancy. The striking simplicity of the concepts may have found imitators in this highly competitive world. Nonetheless the Plaintiff's enthusiasm and natural energy would, I am satisfied, have made the most of opportunities developed. Tenacity was one of his hallmarks even though demonstrated by phrases and assertions which were not honeyed. It is not possible to conjure up turnover, markets and profits, commissions and franchises. On the other hand I do not accept any argument that since he has not advanced this concept over the intervening years he cannot have had any faith in it. His priorities have reasonably been elsewhere. Furthermore without a career in an orchestra, I do not think he had much prospect of getting the development off the ground. The opportunity was a real one probably lost forever. Erring possibly on the low side I consider that opportunity is worth at least HK$750,000. I should not rule out entirely the possibility that at some time the Plaintiff maybe able to make something of these inventions.

Medical Expenses.

383. By notice dated 11th September 1996 the 1st and 3rd Defendants, who were then represented by the same Counsel and Solicitors agreed a number of items in the Plaintiff's original Schedule of Damages. Because the 3rd Defendants changed Solicitors and Counsel they seek to suggest that they are not bound by these admissions. No formal notice withdrawing such agreement was given when the replacement Counsel and Solicitors took over conduct of the case. The 3rd Defendants have not since filed an answer to the Plaintiff's amended schedule. None of the other Defendants has filed any Answer or counter schedule. Accordingly they have effectively put themselves out of contention on this aspect. I have nonetheless sought to examine these claimed losses as best I can. I regard the original counter schedule filed on behalf of the 1st and 3rd Defendants as binding them. I do not propose to rehearse the arguments or reasons. They are clear enough. I make the following allowances as sums which the Plaintiff has proved as losses attributable to the Defendants' negligence and breach of duty of care.

Pre-1992-Incurred in Hong Kong - [in accordance with the revised App.7(1) of the Plaintiff's Schedule]

HK$43,486

1987 onwards - Incurred in the U.S.A. [In accordance with the revised App.7(2) of the Plaintiff's Schedule]

HK$513,379.39

Travelling Expenses (Past)

384. These were set out in Appendix 8 of the Plaintiff's original Schedule of Damages. The sum has not changed. The 1st and 3rd Defendants agreed it in the Counter Schedule they sought to withdraw. I am entitled to assume that in agreeing it they exercised care and judgment, considered the documents and used their commonsense. I allow the sum of: HK$78,960.00

Guardian's Cost.

385. I have read the statements of Mr. Ferrin and Mr. Higgins. I agree that public policy requires proper payment to be made. The amount claimed in respect of an hourly rate is reasonable. My own view of the future is that a guardian will no longer be required after the next 6 months. The Plaintiff's wife will be in a position to help organise his affairs and in any event I think that there will be sufficient psychological recovery to enable him to understand essential matters. I make this award up to the end of 1996

HK$174,443

For the 6 month period following the end of litigation I allow

HK$34,888-50

Care Costs.

386. I accept that the Plaintiff has needed and has benefited from the care provided by his wife and his mother particularly since March 1992. No doubt his wife provided a degree of care prior, thereto, probably from 1988 in particular. The rates provided by Mrs. Shelley Chow are agreed. I have read the statements of the Plaintiff's wife and mother. Past care I assess at HK$1.000.000 discounted to a small extent on the basis that there have been some better days when he has not needed the care available.

Future Care.

387. I find this a particularly difficult aspect. On the basis that only his wife is available and there will be an improvement in his life style and in his marriage, and they will live under the same roof I project a significant improvement. It may take a little time to achieve. I allow the sum of $250.000 in respect of this. Although the medical evidence which I accept is far from optimistic about any recovery, I must put into the balance my own impressions having seen him give evidence for two weeks. There is no doubt than when his mind turns to the matters that enthuse him and of which he has knowledge and experience he can display a latent energy. With the end of litigation and the opportunity to channel his frustrations and bitterness into more productive channels, he will find his life less burdensome, and he will want to be less of a burden to others.

Future Medical and Rehabilitation Costs.

388. Undoubtedly the various therapies have benefited him to a great extent. I think that benefit from all of them has been essentially psychotherapeutic. The recent comments which I have made under the previous subject (Care Costs) also apply to this aspect. I consider it reasonable to allow for one years cost of the first four therapies - HK$182,520. I exclude the aquatic therapy because beneficial though it is, I consider this Plaintiff should for the future consider that as part and parcel of inevitable need for leisure activity regardless of any damage done to him by the Defendants.

Vision Equipment and Eye Surgery

389. The breakdown of the surgery in 1988 was caused by the organophosphate poisoning. The Plaintiff's current eye problem is capable to some extent of resolution. I allow the initial cost and the cost of corrective surgery which may or may not improve the position further. Thereafter it is difficult to be reasonably certain as to the result. There is a strong possibility, in the region of 80-85%, of successful surgery which will restore the Plaintiff to his pre July 1988 state and I reflect that in my assessment. I discount the risk of further surgery thereafter. The allowance under this head is therefore:

General Medical attention.

390. To date this has been provided by Dr. Hayse. The annual cost is agreed at $23,259 I am satisfied that there will be a future need for his services but I have to exclude from that medical need any treatment or consultation relating to diabetes and cardiac matters. I have made reference earlier to some degree of psychological recovery I think he will have recourse to Dr. Hayse less frequently in respect of attributable problems and therefore the multiplier must reflect this - the appropriate one in 5. The future cost is:

HK$116,295

Hearing problem

391. This is confined to the tinnitus maskers. I was unable to be certain that this problem was organic as opposed to psychiatric. The initial cost was HK$11,700. Two replacements should be allowed for on the basis of a chance of improvement (bearing in mind the uncertainty as to cause) and some development technically which may reduce or eliminate the need for regular replacement.

11,700 x 3 = HK$35,100

Cognitive Training Equipment

392. I am not satisfied that the Plaintiff needs this. His evidence and that of other witnesses suggested his cognitive faculties have improved significantly.

Housing costs

393. This claim is in respect of the loss of interest on the extra capital cost in purchasing appropriate accommodation in Jackson Hole, Wyoming for the Plaintiff. I accept the evidence submitted on behalf of the Plaintiff and the calculations made. I allow:

HK$297,715

Motor car.

394. I think that the Plaintiff would in any event have purchased a large vehicle in Hong Kong, probably a utility vehicle to be used in the course of business as well as privately. That would have cost him much more in Hong Kong than in the U.S.A. I do not think that there is any loss under this head.

Travelling for therapy.

395. I have allowed for one further year of the specified four therapy treatments. The total mileage will be 1040. The cost of that applying the calculations in the Plaintiff's submissions will be:

HK$1,773.88

Travelling for treatment

396. This envisages two visits per year for six years to Denver. My own view of the Defendants' adjustment following the end of litigation is that he will be able to make the journey on his own. In view of my findings as to the respective influences of the organic and psychiatric conditions I think it would be reasonable to allow two visits for one year:

HK$19,476

Taxation

397. I have not calculated the Hong Kong tax which may be payable on the gross salary from the H.K.P.O and on the fees from ancillary work such as tuition, Touch of Class, T.V. work etc. This deduction can be agreed by the parties.

398. There will be no tax due on the sums representing the loss of opportunities concerning the business P.A.P.E. and the timpany mallets.

399. The earnings at the Grand Teton festival would not, I feel sure, attract any U.S.A. tax.

400. Interest remains to be calculated at the appropriate rates, on general damages for pain and suffering and loss of amenity and on the damages for loss of opportunities and on the special damages. This can be agreed by the parties.

Judgment

401. There will be judgment for the Plaintiff against the Defendants in the total of the sums set out, appropriate deductions in respect of H.K. salaries tax having been made, together with interest thereon. The Plaintiff will have his costs of the action on a common fund basis - he is currently under a disability - to be taxed if not agreed. The costs order is an order nisi. There will also be an order for taxation under the Legal Aid Ordinance.

XIX POSTSCRIPT

402. The hearing of this action lasted just over 80 days. That was far too long. With the exception of notably the first and second Defendants, 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.

403. This was a case for close management control by the judge who was to try it, but for understandable reasons it was not possible to implement this prior to trial. As a consequence it was not possible to sift the mass of expert and non-expert material in order to reduce it to what was clearly relevant. Much material arrived very shortly before trial, medical examinations were being conducted in the USA, the U.K. and Hong Kong just before trial and during trial. In the early stages because some Counsel were only recently instructed, and the vast amount of paper clearly needed consideration, I was prepared to extend a considerable degree of latitude even though there was a marked reluctance on the part of some Defendants to agree the obvious.

404. The Plaintiff himself gave evidence over 15 days, most of that being cross-examination. 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.

405. It is important that cross-examination should be robust and thorough. However it should never be thought that a Plaintiff, by bringing his or her action, is exposed to unnecessarily intrusive examination of his or her life just because it is thought that at the end of the day something might emerge which might conceivably reflect upon his character. Litigation is not a "no holds barred", free-for-all exercise in attrition. A court's duty is to prevent such an approach which can be oppressive. However sensitively matters may be put, and some cannot by the very nature of the subject be handled with sensitivity, if they are not relevant they are not to be put. Some matters may be of marginal or peripheral relevance. That does not mean that they may with impunity be explored.

406. An argument which emerged on the part of some Defendants is that what they did was in accordance with the accepted practice in the trade or business or employment scene in Hong Kong. I have examined these Defendants' cases earlier. Where an employer or business knows of risks attached to its trade or business and does nothing or insufficient to remove them by actions well within its capacity, or fails to pass on information which is available to it, or fails to instruct its employees in safe practices, or fails to provide a safe system of work or place of work, it is no defence to say that 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. Consonant with such an argument or defence is the inference that there is no duty of reasonable care and that cannot of course be the case.