HCA003978A/1990
1990, HCA Nos.A3978 and A4009
1994, HCA No.A8122
(Consolidated)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
KRISTAN BOWERS PHILLIPS by his next friend PHILIP G. HIGGINS
Plaintiff
INITIAL ENVIRONMENTAL SERVICES LIMITED formerly known as EXCLUSIVE ENVIRONMENTAL SERVICES LIMITED
1st Defendant
THE HONG KONG PHILHARMONIC SOCIETY LIMITED
2nd Defendant
THE HONG KONG ACADEMY FOR PERFORMING ARTS
3rd Defendant
CIBA-GEIGY (HONG KONG) LIMITED
4th Defendant
WONG CHING HO COMPANY LIMITED
5th Defendant
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Coram : Hon Mr Justice Cheung in Chambers
Date of hearing : 25th March 1996
Date of handing down judgment : 17th April 1996
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JUDGMENT
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Nature of Application
1. In this application the Plaintiff seeks specific discovery of the following documents against the 4th Defendant ("Ciba-Geigy") :
Original and/or copy documents (including, inter alia, working and research papers, memorandum, correspondence and reports) whether generated by Ciba-Geigy (Hong Kong) Limited or other entities including, inter alia, Ciba-Geigy Inc., Ciba-Geigy S.A., Nippon Kayaku and Exxon Corporation at any time revealing :-
(1)
Full chemical analyses of the following chemicals, compounds or formulations including 100 percent disclosure of all ingredients and contaminants including, but not limited to, benzene :-
(a)
Technical Diazinon;
(b)
Diazinon 60EC or other formulation of like name/nature;
(c)
Aromatic Hydrocarbon and Solvent;
(d)
Other inert ingredients.
(2)
The date of first analytical identification of each and every ingredient and contaminant listed in response to request (1) above.
(3)
All documentation, on a chronological basis, relating to acute and chronic toxicological effects of all ingredients and contaminants in 1(a), (b), (c) and (d).
The Principles
2. The party seeking specific discovery has to make out a prima facie case that,
1.
there is in existence a specific document or class of documents;
2.
the party against whom the order is sought has or had the document in his possession, custody or power;
3.
the document or class of documents relate to a matter in question in the action; and
4.
the discovery is necessary either for disposing fairly of the cause or matter or for saving costs (Lee Nui Foon v. Ocean Park Corporation [1995] 2 HKC 390).
The Plaintiff's Application
1. Proof of existence
3. According to Mr Lunning, the Plaintiff's solicitor, who has filed an affidavit in support of the application, Ciba-Geigy is a subsidiary of one of the world's leading chemical producers, namely Ciba-Geigy S.A., Switzerland ("Ciba-Geigy S.A."). Ciba-Geigy S.A. is the developer of the chemical known as Diazinon which the Plaintiff alleged caused him injuries and damages. Ciba-Geigy S.A. has many subsidiary companies throughout the world, one of these subsidiary companies is Ciba-Geigy Inc. in USA ("Ciba-Geigy Inc."). In 1993 Ciba-Geigy Inc. was a defendant in court proceedings instituted by one Mr Grady. Mr Lunning was informed by Dr Samuel Epstein of Chicago, one of the Plaintiff's experts in these actions, that he was appointed as the causation expert on behalf of Mr Grady, the plaintiff in the action against Ciba-Geigy Inc. In that litigation Dr Epstein received, under a discovery order of the court, documents generated by Ciba-Geigy S.A. of the same nature of the documents sought by the Plaintiff.
2. Possession, custody or power
4. The Plaintiff argued that by virtue of the relationship between the Plaintiff and its parent company, the Plaintiff has the possession, custody and power of these documents.
3. Relevance
5. The Plaintiff alleged inhalation of the Diazinon which caused him acute and chronic illness. The cause of action against Ciba-Geigy was that it had been negligent in failing to supply sufficient instructions when it knew, or ought to have known that Diazinon, by reason of its chemical properties, was likely to injure persons who came into contact with it or inhaled it.
6. Ciba-Geigy denied that it was the presence of Diazinon that poisoned the Plaintiff. It asserted that there was no acute and long-term symptoms resulting from exposure to Diazinon and it denied not having sufficiently informed the users of the harmful chemical constituents of Diazinon.
7. The Plaintiff's case is based on the harmful effect of Diazinon and the components or solvents in this chemical and Mr Leung, Counsel for the Plaintiff, submitted that Ciba-Geigy's state of knowledge is relevant to the question of what duties were owned by Ciba-Geigy to users in providing warnings and information. The documents are relevant both by reason of being in a class or by reason of their content. Relevance means something which would advance the Plaintiff's case or damage Ciba-Geigy's case or may lead to a train of enquiry which may have such consequences : The Peruvian Guano Co. [1882] 11 QB 554.
4. Necessity of discovery
8. Mr Leung submitted that the disclosure of these documents will help to dispose fairly and expeditiously of the issues relating to the general state of knowledge and Ciba-Geigy's knowledge about the effects of Diazinon and its component. This state of knowledge, when proved, will go a long way to assist in determining Ciba-Geigy's duty as to labelling and warning. Ciba-Geigy's knowledge is the basis of the knowledge of the other Defendants. Discovery of such documents will either advance the Plaintiff's case or damage Ciba-Geigy's or other Defendants' case. Costs will be saved by the disclosure of these documents.
9. Relying on the case of Ventouris v. Mountain, the Italia Express [1991] 3 All ER 472, the Plaintiff argued that the burden is upon the objecting party to satisfy the court that discovery is not necessary for the purposes specified.
Existence of document
10. I would now deal with each of the four requirements.
11. Mr Lunning exhibited a letter from Dr Epstein dated 31st August 1995 in which he stated that :
"..... I have subsequently reviewed further documentation generated in an unrelated 1993 US Court Action, Grady et al v. Ciba-Geigy et al , in which I acted as the plaintiff's causation expert.
Pursuant to a discovery order I received, confidential Exxon Corp. analyses of it's aromatic hydrocarbon solvent purchased by Ciba-Geigy for the formulation of commercial Diazinon concentrates. These analysis detail substantial contamination of this solvent with the aromatic hydrocarbon benzene (As ordered by the Court these documents were returned to the defendants)."
Dr Epstein further stated that :
"..... this source of benzene in the Diazinon solvent is incremental to that in technical Diazinon itself (see Appendix A of my 3/18/1990 report). It should further be noted that, as emphasised in my 3/18/1990 report, there is substantive evidence on the causal association between exposure to aromatic hydrocarbons and solvents encephalopathy."
Leaving aside for the time being the question of the width and the breath of the documents sought by the Plaintiff, it appears that there is a prima facie case that documents relating to the chemical analyses of the aromatic hydrocarbon solvent used in the formulation of the Diazinon concentrates were in existent.
Possession custody and power
12. Although Mr Lunning in his affidavits stated that the documents were generated by Ciba-Geigy Inc., Dr Epstein in his letter referred to the chemical analyses carried out by Exxon Corp. of "it's aromatic hydrocarbon solvent". It is also clear from his letter that there are other defendants in the US proceedings. Mr Sujanani, Counsel for Ciba-Geigy, submitted that it may well be that Exxon Corp. was a party to the US proceedings and the document referred to in Dr Epstein's letter was generated by Exxon Corp. instead of by Ciba-Geigy Inc. Mr Leung submitted that in view of what Mr Lunning said in his affidavit, Mr Sujanani was reading this letter out of context.
13. All that I can say is that it is certainly not clear who in the US proceedings generated the analysis of the solvent. From the letter it seems that Ciba-Geigy Inc. purchased the solvent which was the product of Exxon Corp. The Plaintiff carries the burden of establishing a prima facie case and he has over seven months to get the evidence : the summons for specific discovery was taken out on 2nd September 1995. It is not for me to second guess who are the parties in the US proceedings and who actually generated this document.
Relevance
14. What is more important in this application is the question of the relevance of the documents. The Plaintiff's case against Ciba-Geigy is that Ciba-Geigy is the importer, supplier and distributor of Diazinon. Ciba-Geigy is not sued as a manufacturer or developer of that product. The Plaintiff pleaded that Ciba-Geigy imported the Diazinon under a licence granted under the Agriculture and Fisheries Department. A copy of the licence was disclosed and in it was stated that the manufacturer of the chemical was Nippon Kayaku Company Limited ("Nippon"). The defence pleaded that Diazinon was manufactured in Japan by Nippon and was imported into Hong Kong in bulk form. The brochure prepared by Nippon and disclosed in these proceedings, stated that Nippon is an integrated chemicals manufacturer which introduced Diazinon in 1956. There is no question of Nippon manufacturing the chemical under the licence of Ciba-Geigy as suggested by Mr Leung. It is also clear from the brochure that research had been performed by Nippon in Japan. The Plaintiff, however, has not established, by way of evidence, that Ciba-Geigy has not disclosed the research carried out by Nippon other than those that had already been disclosed in these proceedings.
15. Even if Ciba-Geigy S.A. was the developer of the Diazinon and Ciba-Geigy Inc. had called for a chemical analysis of the components, I fail to see how this could be of relevance to the present case. The state of knowledge of Ciba-Geigy as to the harmful effect of the chemical must be those directed towards the effect of the chemical manufactured by Nippon and not those by Ciba-Geigy Inc. or Ciba-Geigy S.A. I am not satisfied that a case of relevance has been made out. It is worth referring to Air Canada v. Secretary of State for Trade [1983] AC 394, a case dealing with inspection of documents, where Lord Edmund Davies held that :
"It is accordingly insufficient for a litigant to urge that the documents he seeks to inspect are relevant to the proceedings. For, although relevant, they may be of merely vestigial importance, or they may be of importance (great or small) only to his opponent's case. And to urge that, on principle, justice is most likely to be done if free access is had to all relevant documents is pointless, for it carries no weight in our adversarial system of law."
Necessitv
16. The ambit of documents sought by the Plaintiff is simply too wide. In respect of the nature of the documents they include "inter alia, working and research papers, memorandum, correspondence and reports". In terms of the persons who generated these papers, they included Ciba-Geigy "or other entities including, inter alia, Ciba-Geigy Inc., Ciba-Geigy S.A., Nippon Kayaku and Exxon Corporation". Mr Sujanani pointed out that including Ciba-Geigy, there are 10 companies in Hong Kong which had permit to import, supply and sell Diazinon. In terms of time, no period is specified in the application.
17. The accident happened on 21st June 1987. Bearing in mind that Nippon had started manufacturing the chemical since 1956, it imposes an impossible task on Ciba-Geigy to conduct a search of these documents. It is necessary to repeat what has frequently be said by the courts in discovery applications, the order must identify with precision the document or documents or categories of documents which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure : Berkeley Administration Inc. and Others v. McClelland and Others [1990] FSR 381.
Conclusion
18. I am not satisfied that the order for specific discovery should be granted in the present case. The summons is dismissed with costs to Ciba-Geigy.
(P. Cheung)
Judge of the High Court
Representation:
Mr Raymond Leung, inst'd by M/s Drivers, for Plaintiff
Mr Ramesh Sujanani, inst'd by M/s Simmons & Simmons, for 4th Defendant