High Court supports reduced evidence threshold for chemical exposure

Chemical Watch 02 November 2017 | Dennis Engbarth

Taiwan's High Court has granted nearly US$24m in compensation to ex-Radio Corp of America (RCA) workers over their toxic chemical exposure. The court's decision reinforced a precedent set by a lower court that finding of liability for injury can be based on "reasonable medical certainty" rather than direct evidence linking cause and effect.

The award was made on 27 October to 484 ex-RCA workers and surviving relatives. It follows 19 years of effort to gain compensation for more than 200 deaths and hundreds of cases of illness due to extended exposure to 31 toxic chemicals between 1970 and 1992 at RCA factories in Taoyuan and Chupei.

The chemicals, mainly organic solvents, include trichloroethylene (TCE), tetrachlorethylene, 1,1,2-trichloroethane, methylene chloride, benzene, vinyl chloride, isopropanol, ethanol, nitric acid, sulfuric acid, trichloromethane, methylene chloride, 1,2-dichloroethane, toluene, methyl bromide, 1,1,2-TCE, sodium chlorite, butanone, acetone, N-hexane, methanol, ethyl acetate, propanol, stannous sulfate and freon.

Many of these had already been placed in the top three categories of carcinogens by the International Agency for Research on Cancer (Iarc).

Appeal rejected

The judgment was a rejection of the core arguments of an appeal to a district court judgment in April 2015 by RCA’s successor companies: RCA Taiwan Ltd, Technicolor (formerly Thomson SA and Technicolor SA), Technicolor Inc (formerly Thomson Consumer Electronics and Thomson Inc), Thomson Consumer Electronics (Bermuda) Ltd and the General Electric Company.

However, the high court judges stated that there was insufficient evidence of violation of legal rights or injury at RCA's plant in Yilan County. Additionally, compensation was significantly below the US$90m requested by the former RCA employees.

The court stated RCA board directors and managers had:

failed to explain and guide workers in the safe use of chemicals;
not provided masks and other safety equipment;
frequently violated regulations to prevent poisoning from organic solvents and safety guidelines on lead poisoning; and
dumped organic solvents and other chemical waste in factory grounds, so polluting local water resources.

There were three grades of compensation: resulting deaths, related illnesses and those without obvious symptoms. The court upheld damages for ex-employees currently without visible symptoms because the gradual effect of "latent harm in cells" can often result in cancer or other long-term damage.

The award in the judgment was also made despite some claimants filing after the statute of limitations – over ten years after workers died. However the judges noted, the delays resulted from RCA's efforts to "hide or cover up its responsibility".

The high court judges criticised RCA for remitting more than US$100m to its parent company in 1988 and 1999 in an "ill-intentioned" move to escape liability.

Mr Kao Yung-cheng, an attorney at Taipei City-based Primordial Law Firm, told Chemical Watch the High Court judgment "reinforces the lower court decision" confirming several "breakthroughs" for environmental and occupational injury law.

Mr Kao said three important precedents might now be applied:

a high probability of occupational harm from toxic chemical exposure is sufficient for findings of injury;
the statute of limitations could be extended where delays were primarily caused by attempts to hide or cover up company responsibility; and
liability might be extended to parent or successor companies.

He noted, however, that the low level of compensation in this case "lacked any punitive effect"

Important precedents might now be applied: a high probability of occupational harm from toxic chemical exposure is sufficient for findings of injury; the statute of limitations could be extended where delays were primarily caused by attempts to hide or cover up company responsibility; and liability might be extended to parent or successor companies.

Taiwan Occupational Safety and Health Link executive director Ms Huang Yi-ling told Chemical Watch that the judgment highlighted the "continuing responsibility of companies in Taiwan for similar risks to workers’ health", noting that many of the toxic chemicals in the case are still widely used in Taiwan’s factories today. Consequently, risk prevention must be addressed by government, she said.

The judgment can be appealed at the Supreme Court.

Dennis Engbarth in Taipei City

https://chemicalwatch.com/asiahub/60731?pa=true