It is not uncommon to find that new furniture keeps emitting nasty odour. It is more than frustrating to be emerged in an apartment filled with the off-gassed smell. While off-gassing is the natural evaporation of a type of indoor-air-quality-compromising pollutant from common household products, it may possibly cause a number of side effects, e.g. headaches, dizziness, respiratory problems, nausea, skin irritation, shortness of breath, etc. So, if your furniture is making you sick, can you claim compensation for it?
Yuen Pui Man Ellen v Majestic Furniture & Interior Design Limited  HKEC 108 is a recent personal injury claim decision about that the toxic pollutants emitted by the furniture affecting the Plaintiff’s health. In this case, the Plaintiff purchased certain made-to-measure furniture (“Furniture”) from the Defendant. The Furniture turned out to emit toxic fumes at a high level and did not correspond with the sale description.
In July 2008, the Plaintiff visited the Defendant’s store to purchase some wooden household furniture. She was attended by salesmen who then referred her to several newspapers clippings reporting that most furniture sold in Hong Kong would contain or be contaminated by toxins harmful to human. They then assured the Plaintiff that this problem could be avoided if she purchased furniture from the Defendant and emphasized that furniture sold by the Defendant were made of E-1 grade timber and toxin-free plywood from Indonesia which would not affect human health. The Plaintiff purchased the Furniture in reliance of the said representation made by the salesmen.
In October 2008, after the delivery of the Furniture, the Plaintiff discovered that, inter alia, the condition of the Furniture was contrary to the said representation made by the Defendant’s salesmen, as the Furniture contained extremely high levels of formaldehyde and total VOC (Volatile Organic Compounds) and were not safe. Worse still, the Plaintiff had since then develop allergic symptoms in the eyes, throat, nose, lung and skin which persisted up to June 2009 and which had since recurred intermittently when she was exposed to odours from substances such as fresh paints, perfumes and shampoos. Tests carried out concluded that the Furniture emanated extremely high levels of formaldehyde and total VOC which were beyond the acceptable level, and these were probably due to poor grade of wood based panels used in the Furniture.
The Plaintiff’s Claim
The Plaintiff adduced a doctor’s report confirming that due to the toxins, the Plaintiff suffered from various allergies, from irritation of the eyes to chest pain. Such allergic symptoms persisted for about 8 months and had since recurred intermittently. The Plaintiff’s daily activities at her residence were also affected despite the removal of the Furniture. She had also displayed a depressive mood and had sleeping difficulties. The Plaintiff thereby claimed HK$200,000 for pain, suffering and loss of amenity (PSLA).The Plaintiff also claimed loss of earning capacity on the ground that as a freelance teacher in arts, she then had difficulty to concentrate at work and no longer could she withstand certain odour at workplace and take up tasks as before.
It was held that the Defendant was in breach of contract and had to refund the purchase price; The Defendant was also found tortuously liable for the personal injury suffered and the court allowed the Plaintiff’s claim for PSLA, loss of earning capacity, expenses for storage of her personal belongings and special damages.
If the claimant who suffers from personal injury due to defective or unsafe goods has a contractual relation with the seller of the goods, like the Plaintiff in Yuen Pui Man Ellen, he can sue the seller for breach of contract and for negligence. The Sale of Goods Ordinance, Cap 26, offers protection to persons dealing as consumer by implying into contracts for supply of goods a condition that the goods shall correspond with the description, are of merchantable quality and reasonably fit for the purpose they were bought. However, if the claimant does not have a contractual relation with the seller of the goods, such as the purchaser’s family member who suffers from personal injury due to the defective or unsafe goods, he would not be afforded the protection given by contract law, and can only bring proceedings in tort and has to prove negligence.
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|Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.|
|Published by ONC Lawyers © 2016|