ANDREW WILLIAM MAXWELL v. KELISTON MARINE (FAR EAST) LTD (now in liquidation) AND ANOTHER

ANDREW WILLIAM MAXWELL v. KELISTON MARINE (FAR EAST) LTD (now in liquidation) AND ANOTHER

Court found on balance of probabilities that the plaintiff developed asthma around the time of his tunnel work; the plaintiff was exposed to TDI vapour in the tunnels and that exposure materially contributed to the onset of asthma as a cumulative cause; defendants were negligent and breached Regulations 12(3) and 12(4)(a) by failing to provide adequate respiratory protective equipment (filtering mask with charcoal cartridge and particulate filter APF≥20); damages were awarded to plaintiff for PSLA, loss of earning capacity, past medical expenses and future medical expenses with specified interest; contributory negligence not allowed because not pleaded.

Citation
ANDREW WILLIAM MAXWELL v. KELISTON MARINE (FAR EAST) LTD (now in liquidation) AND ANOTHER
Parties
Plaintiff: Andrew William Maxwell; 1st Defendant: Keliston Marine (Far East) Limited (now in liquidation); 2nd Defendant: Paul Y-Seli Joint Venture (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 January 2012
Case Number
HCPI945/2003
Procedural Posture
Personal Injuries Action / Judgment After Trial
Outcome
Judgment for the plaintiff; defendants liable in negligence and for breach of Occupational Safety and Health Regulations 12(3) and 12(4)(a)
Legal Topics
Isocyanate (tdi) Exposure, Employer Duty of Care, Occupational Safety and Health Regulations (regulation 12), Personal Protective Equipment, Causation (cumulative Causes), Quantification of Non Pecuniary and Future Loss, Expert Evidence on Exposure and Reaction Times
Source Language
EN
Occupational Health and Safety Personal Injury Negligence Statutory Duty (workplace Safety) Damages Occupational Disease Isocyanate (tdi) Exposure Employer Duty of Care +5 more

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Parties

Andrew William Maxwell

Plaintiff

Keliston Marine (Far East) Limited (now in liquidation)

1st Defendant

Paul Y-Seli Joint Venture (a firm)

2nd Defendant

Procedural Posture

Personal Injuries Action / Judgment After Trial

Legal Issues

  1. 1 Did the plaintiff suffer from asthma and when did it begin?
  2. 2 Was the plaintiff exposed to TDI vapour at work?
  3. 3 Did such exposure cause or materially contribute to the plaintiff developing asthma?

Ratio Decidendi

Court found on balance of probabilities that the plaintiff developed asthma around the time of his tunnel work; the plaintiff was exposed to TDI vapour in the tunnels and that exposure materially contributed to the onset of asthma as a cumulative cause; defendants were negligent and breached Regulations 12(3) and 12(4)(a) by failing to provide adequate respiratory protective equipment (filtering mask with charcoal cartridge and particulate filter APF≥20); damages were awarded to plaintiff for PSLA, loss of earning capacity, past medical expenses and future medical expenses with specified interest; contributory negligence not allowed because not pleaded.

Court Disposition

Judgment for the plaintiff; defendants liable in negligence and for breach of Occupational Safety and Health Regulations 12(3) and 12(4)(a)

Orders

  • Award PSLA HK$250000
  • Award for loss of earning capacity HK$150000