16.3.1 Cases by smokers to recover damage incurred when quitting
In 1994 a claim was filed in the Consumer Claims Tribunal of New South Wales against the manufacturers of a brand of cigarettes to which the claimant had become addicted. The claim was for damages and costs incurred in overcoming the addiction seeking a money order for $1,000 for the cost of a stop smoking program, compensation for mental and physical distress in overcoming the nicotine dependence and for other expenses.
At the commencement of the hearing, the tobacco companies sought a ruling from the Tribunal that it had no jurisdiction to determine the claim. The Tribunal ruled it was satisfied it had jurisdiction and a Judge in the Supreme Court of New South Wales dismissed a summons seeking a review of that decision. The tobacco companies appealed that decision but the appeal was dismissed by the NSW Court of Appeal.
W D and H O Wills (Australia) Limited and Anor v The Consumer Claims Tribunal of New South Wales and Anor Matter No Ca 40703/95 [1998] NSWSC 311 (23 July 1998) [Ultimately the claim was not successful, with the Tribunal Member finding the claimant had quit smoking by strength of will, not the quit smoking course and omitting to consider awarding damaged for the ‘mental and physical distress in overcoming the nicotine dependence.’
16.3.2 Cases relating to injury from exposure to secondhand smoke
In the 1980s and 1990s, a substantial number of individuals brought legal claims against employers and hospitality venue operators in Australia after suffering harm from exposure to secondhand tobacco smoke. This increase in litigation relating to exposure to secondhand smoke coincided with mounting scientific evidence of a causal connection between ill health and exposure to secondhand smoke, and growing public awareness of the dangers. The historical development of scientific understanding of the effects of exposure to secondhand smoke has been discussed in Chapter 4.
During the same period, many employers began voluntarily to impose smoking bans in workplaces. More recently, States and Territories have enacted laws that ban smoking in most enclosed workplaces as well as some un-enclosed public places. 1 However, the advent of legislative smoking bans in enclosed workplaces and in some public places does not alter the potential liability of employers and occupiers under the heads of law discussed in this Part. If premises are not subject to a statutory ban on smoking, this does not diminish the legal responsibility of employers and occupiers to ensure workers and members of the public are not subjected to risks to their health and safety, for example from exposure to secondhand smoke.
Cases relating to exposure to secondhand smoke may be brought on several alternative legal grounds. Depending on the circumstances of the case, claims may be based on common law negligence, occupational health and safety law, occupiers’ liability law, contract law or anti-discrimination law. Under statutory compensation schemes, workers may also be entitled to compensation assessed on a no-fault basis. These types of claims are explained in more detail below, together with some examples of successful claims brought by individuals harmed by exposure to secondhand smoke at work or at a public venue. (A more comprehensive list of secondhand smoke exposure cases in Australia, which includes brief details of the claims and their outcomes, if known, is provided in Appendix 2 to this chapter.)
16.3.2.1 Common law negligence 2
The common law of negligence relies on the concept of a duty of care, which a defendant may owe either to a particular plaintiff or to a class of plaintiffs. In a personal injury case, the plaintiff may establish a breach of the duty of care by proving that the manner in which a risk of injury eventuated had been reasonably foreseeable, and that the defendant did not act as a reasonable person would have in the circumstances. The plaintiff must also establish that his or her injury was caused by the defendant’s breach of duty.
The categories of relationship that give rise to a common law duty of care include the employer/employee relationship and the relationship between an occupier of premises and an entrant to those premises. Employees and members of the public who are injured by exposure to secondhand smoke may therefore be entitled to sue the relevant employer or occupier, respectively, for common law damages in negligence.
As noted previously, between 2002 and 2004 the Commonwealth, State and Territory governments introduced statutory limits on liability and the quantum of damages available in a negligence action for personal injury. 3 In New South Wales, Queensland, Tasmania, Victoria and Western Australia, special exceptions to these limits were enacted in respect of claims for injuries resulting from smoking or other use of tobacco products. The exceptions enacted in Victoria and Queensland specifically covered claims for injuries resulting from exposure to secondhand tobacco smoke.
In many jurisdictions the duties of employers and occupiers include both common law duties and statutory duties. In secondhand smoke cases, claims for common law negligence may therefore be brought simultaneously with claims based on other legal grounds. 4 5 An example is provided by the case of Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club. 6 In that case, in 2001, a jury in the Supreme Court of New South Wales decided in favour of a plaintiff who had brought a claim against her employer based on common law negligence and breach of an employer’s statutory duty. The plaintiff had worked as a bartender at the Port Kembla RSL between 1984 and 1995 and at the Port Kembla Hotel from 1973 to 1984. In 1995, the plaintiff discovered a lump on the side of her neck, and was diagnosed with cancer of the mouth, throat and neck. The plaintiff claimed that her cancer had been caused by exposure to secondhand smoke during the course of her employment at the Port Kembla RSL and the Port Kembla Hotel. The Port Kembla Hotel settled the plaintiff’s claim against it out of court, for A$160,000. The claim against the Port Kembla RSL proceeded to trial before a jury in the Supreme Court of New South Wales.
The jury in this case found that the employer’s negligence had either caused or materially contributed to the plaintiff’s cancer. This finding was based on a series of conclusions reached by the jury. On the balance of probabilities, the jury found that (i) on the information available to the Port Kembla RSL at relevant times, it had been reasonably foreseeable that the plaintiff would suffer physical injury; (ii) there had been a reasonably practicable means of eliminating the risk; (iii) in failing to ban smoking totally or partially or to constantly operate exhaust fans, the employer had by its conduct caused or materially contributed to the plaintiff’s injury; and (iv) the employer had not acted reasonably.
The jury awarded the plaintiff a total of $466,048 in damages, less the amount she had already received from the earlier settlement with the Port Kembla Hotel. The damages were awarded as damages for pain, suffering and loss of enjoyment of life, and past and future medical expenses, domestic assistance and loss of earnings.
16.3.2.2 Protection for workers—occupational health and safety law and negligence
Each of the States and Territories has passed legislation to protect workers against workplace injuries and diseases. 7 These laws impose certain duties on employers to ensure that the workplace environment is safe and without risks to health. For example, in Victoria the Occupational Health and Safety Act 2004 provides in section 21(1) that:
“[a]n employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.’
Failure to comply with this provision constitutes an indictable offence, 8 punishable by a maximum fine of 9,000 penalty units if the employer is a corporation. 9
Occupational health and safety legislation may also require employers to take steps to keep third parties safe from injury. For example, section 23(1) of the Victorian Occupational Health and Safety Act 2004 provides that:
‘[a]n employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.’
Even if smoking is not permitted in an enclosed workplace, if smoking is permitted near an entrance, or somewhere from which smoke can drift inside, an employer should consider how this may impact on employees and third parties exposed to secondhand smoke as a consequence, and whether or not its statutory duties are being met. Occupational health and safety legislation in all of the States and Territories, and Commonwealth legislation applying to employers that are Commonwealth agencies, requires employers to provide a means of entering and leaving the workplace that is safe and without risks to health, and provides for the protection of third parties as well as employees. For example, Commonwealth legislation requires Commonwealth employers to:
‘provide and maintain a means of access to, and egress from, the workplace that is safe for the employees and without risk to their health’, 10
and to
‘take all reasonably practicable steps to ensure that persons at or near a workplace under the employer’s control who are not the employer’s employees or contractors are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking.’ 11
Comcare 12 has therefore warned employers that they may be in breach of the legislation if they permit employees to smoke near entrances to buildings. 13
Employees who are injured or who contract a disease because of an employer’s breach of a statutory duty may be entitled to claim damages against the employer. 14 If an employee is injured or contracts a disease because of an employer’s failure to take reasonable steps for the employee’s safety, the employee may also have the right to sue for damages in negligence. 15
One of the first cases in the world in which an employee successfully sued an employer in relation to lung cancer caused by secondhand smoke in the workplace was the 1988 case of Carroll v Melbourne Metropolitan Transit. 16 The plaintiff, Sean Carroll, was a bus driver who claimed to have developed lung cancer from inhaling tobacco smoke at work. The claim resulted in an out-of-court settlement, in which the Defendant agreed to pay the plaintiff A$65,000.
In 1992, another workplace claim resulted in a New South Wales District Court jury awarding an employee A$85,000 in damages for common law negligence and breach of the New South Wales legislation on occupational health and safety. 17 In Scholem v NSW Department of Health, 18 the plaintiff had worked as a psychologist at a community health centre from 1974 to 1986, where she had been exposed to secondhand smoke, until the introduction of a smokefree workplace policy in 1984 put an end to smoking by colleagues and patients inside the health centre. This exposure had exacerbated the plaintiff’s asthma, which had formerly been entirely reversible by bronchodilators, but eventually became irreversible, causing the plaintiff considerable disability. The damages awarded by the jury exceeded the amount that the Government Insurance Office had offered in settlement prior to the hearing, which was A$60,000. The Court also awarded the plaintiff costs against the Department of Health.
An employee’s ability to pursue damages against an employer may be limited by State or Territory legislation governing entitlements such as sick leave, social security payments or workers’ compensation benefits. 19 These types of benefits are payable in respect of work-related injuries or diseases without the need to establish that an employer has committed a breach of statutory or common law duty. The payments are funded by employers’ mandatory contributions to statutory insurance schemes. 20 The law in this area is complex and differs between jurisdictions. Broadly speaking, however, recovery of both damages and statutory compensation is unlikely. If damages, which are awarded as a lump sum, have been recovered at common law, this generally results in the cessation of statutory workers’ compensation benefits and repayment of benefits already received. 21
16.3.2.3 Occupiers’ liability
Occupiers’ liability is an area of the law governed by both legislation and the common law in the Australian Capital Territory, 22 South Australia, 23 Victoria 24 and Western Australia, 25 and by the common law in other Australian jurisdictions. Occupiers’ liability is the liability of an occupier to compensate persons injured on premises because of the premises’ dangerous condition. The common law defines an ‘occupier’ as a person who has a degree of control over premises, such that he or she can prevent injury to entrants, while the South Australian and Western Australian legislation defines occupation in terms of being in control or having control of premises. 26
An occupier owes a duty of care to all entrants, in respect of the condition of premises and in respect of operations or activities carried out in premises. It is a duty to take such care as is reasonable in the circumstances for the entrant’s safety and to protect entrants from risks of injury that can be foreseen and avoided. 27
An action based on occupiers’ liability was brought in the case of Bowles v Canton Pty Ltd, 28 by a restaurant patron who suffered an asthma attack triggered by her exposure to secondhand smoke in the restaurant. The plaintiff subsequently became ill and had to miss a week of work. Her symptoms did not fully subside for more than six weeks.
The plaintiff’s claim set out three causes of action. They included breach of contract, discussed below, and breach of an occupier’s duty of care under the common law and under section 14B(3) of the Wrongs Act 1958 (Vic), which provides:
‘An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.’
The magistrate hearing the case found that the plaintiff’s injury had been consequent upon the condition of the premises, and that it had been foreseeable to someone in the position of the restaurant manager that there was a class of persons to whom secondhand smoke represented a threat to health. The Magistrate held that the restaurant had not observed the required standard of care expected of a reasonable person in its position, and had therefore breached its duty of care to the plaintiff both under statutory occupiers’ liability law, and in common law negligence.
In making this finding, the Magistrate took into account the inadequate measures that the restaurant had taken to segregate the non-smoking seating area from the smoking area, and the failure of the restaurant to cater for the plaintiff’s particular need not to be exposed to tobacco smoke. When booking the plaintiff’s table, a member of the plaintiff’s party had stipulated that the table should be in the non-smoking area of the restaurant. When inside the restaurant, the plaintiff’s husband had asked for the party to be moved further away from the smoking section. Instead, the restaurant had briefly turned on the air conditioning, which had improved the air, but soon afterwards the air conditioning had been turned off again and the air had become smoky again. The Magistrate identified several measures that the restaurant ought to have taken to prevent the harm suffered by the plaintiff, such as segregating the smoking and non-smoking areas of the restaurant more effectively and not seating the plaintiff at a table that was immediately adjacent to at least two smoking tables, even though her particular vulnerability had been communicated to the restaurant.
The plaintiff was awarded $10,000 in damages for pain and suffering, $541 for loss of amenity and $325 in respect of medical and like expenses, as well as the costs of the case. However, the magistrate reduced the plaintiff’s damages by 30% on finding that the plaintiff had been contributorily negligent. The magistrate considered that, after it had become evident that the restaurant manager was unwilling to address the situation, the plaintiff should have been more mindful of her own safety and would have exercised reasonable prudence by leaving the restaurant.
16.3.2.4 Breach of contract
In the case of Bowles v. Canton Pty Ltd, 29 discussed above, the plaintiff also claimed that the restaurant had acted in breach of contract. The plaintiff had made an advance booking for a dining table in the non-smoking section of the restaurant. The magistrate found that it had been an express condition of the contract between the plaintiff and the restaurant that the plaintiff be seated in a non-smoking area. The magistrate also found that there had been additional implied conditions in the contract, with which the occupier had not complied. They were that the premises would be safe for occupation by the plaintiff and not injurious to her health, and that the restaurant would take all reasonable and proper steps to ensure that any exposure to smoke in the non-smoking area was kept to a safe and not discomforting level.
16.3.2.5 Disability discrimination
Employers or occupiers who fail to take steps to reduce or eliminate secondhand smoke from their premises may also commit a breach of State, Territory or Commonwealth anti-discrimination legislation. 30 In the case of Francey & Ors v Hilton Hotels of Australia Pty Ltd, 31 which was brought under Commonwealth law, 32 the Court held, and the defendant did not dispute, that asthma constituted a disability under the Disability Discrimination Act 1992 (Cth). Under the Act, a person must not be discriminated against on the basis of a disability in the provision of access to premises, or goods and services, or in making facilities available.
The plaintiff, who was an asthma sufferer, had been forced to leave a nightclub after being exposed to secondhand tobacco smoke there. While at the nightclub, the plaintiff had started to wheeze, to struggle to breathe and to feel pain and discomfort. The plaintiff had complained to the staff, but had been reminded that it was the nightclub’s policy to allow smoking. After leaving, the plaintiff measured her lung function and found that it had decreased. She continued to feel unwell the following day.
The plaintiff’s claim was brought under the Disability Discrimination Act 1992 (Cth), which provides in section 6 that:
‘a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply.’
The Human Rights and Equal Opportunity Commission had to determine whether, by permitting smoking in the nightclub, the nightclub’s operators could be said to have required the plaintiff to comply with a requirement or condition. The Commission concluded that anyone attending the nightclub had had to endure exposure to secondhand smoke, as an implicit condition of their attendance there. The Commission said that it made ‘a nonsense of the Act’ to argue that ‘a condition was not imposed when a choice not to use the service was available to the complainant’. 33
The Commission also considered whether this condition had been reasonable, having regard to the circumstances of the case. The Commission acknowledged that one of the main purposes of the Act was to prevent people with disabilities from being excluded. Evidence had been submitted that 10% of the population had asthma. After taking into account the objects of the Act and all the circumstances of the case, the Commission ruled that it was not reasonable to create a barrier to entry for asthma sufferers, by requiring them to breathe secondhand smoke.
Section 23(b) of the Act makes it unlawful for a person to discriminate against another person on the ground of the other person’s disability in the terms or conditions on which the other person is allowed access to, or the use of, certain public premises. 34 Sections 24(b) and (c) similarly make it unlawful to discriminate on the grounds of disability with respect to the provision of goods, services or facilities. Discrimination on the ground of disability is not unlawful, however, if making alterations to premises to provide access, or providing goods or services, would impose unjustifiable hardship on the person who would have to provide that access or those goods or services. 35 Section 11 of the Act describes the factors to be taken into account in determining what constitutes unjustifiable hardship. They include the financial circumstances of the person claiming unjustifiable hardship.
In Francey, the Commission weighed up a wide range of factors, and concluded that a finding that the respondent’s conduct unlawfully discriminated against the complainants would not cause unjustifiable hardship. The Commission remarked that ‘[t]he capacity for all Australians, with or without a disability, to participate as far as possible in all aspects of community life must be the paramount consideration.’
The Commission also found that Hilton Hotels of Australia had unlawfully discriminated against the plaintiff’s companion at the nightclub, because sections 23 and 24 of the Act also make it unlawful to discriminate against a person on the ground of the disability of any of that person’s associates. By way of compensation, the Commission awarded damages of A$2,000 to the plaintiff and A$500 to the plaintiff’s companion.
16.3.2.6 Conclusions
In addition to the cases described here, many more secondhand smoke cases have been settled out of court, often for an undisclosed amount, in cases where the parties or their insurers have preferred to avoid the cost and publicity associated with a court hearing, as well as the risk of being ordered to pay a substantial amount in damages. 36
Cases such as those described here, in which employers and occupiers have been held liable by a court for the consequences of exposing an individual to secondhand smoke, have helped to highlight to the wider community the health risks of exposure to secondhand smoke, and have almost certainly contributed to the adoption by many employers of smokefree workplace policies. Secondhand smoke litigation may also have influenced policy makers in embracing the need to adopt legislative bans on smoking in the workplace and in public places. However, certain industries, such as the hospitality industry, have resisted going smokefree while this has not been an express legal requirement, with the result that cases have continued to emerge in which staff exposed to secondhand smoke at work have developed serious illnesses. 37
References
1. See Chapter 15 for further information about smokefree laws.
2. The common law is a body of law made up of accepted legal principles that arise out of actual cases. It can be described as “judge made” law, as it evolves through the judgments of the Courts, unlike statute law, which is found in the legislation made by Parliament.
3. See: Civil Liability Act 2002 (WA); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (Tas); Civil Liability Act 1936 (SA); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Trade Practices Act 1974 (Cth).
4. A plaintiff’s legal rights are frequently based on a number of different statutory provisions and common law principles. A plaintiff’s statement of claim normally sets out all the legal grounds on which the plaintiff is entitled to pursue the claim, and each of these is normally considered by the court.
5. Bowles v Canton Pty Ltd (Unreported, 13 September 2003, Magistrates Court of Victoria) and Scholem v NSW Department of Health (1992) 3 APLR 45, NSW District Court, 27 May 1992.
6. Sharp v Stephen Guinery t/as Port Kembla Hotel & Port Kembla RSL Club, Supreme Court of NSW, Case no. 20956 of 1996.
7. Work Safety Act 2008 (ACT), Occupational Health and Safety Act 2000 (NSW), Workplace Health and Safety Act 2007 (NT), Workplace Health and Safety Act 1995 (Qld), Occupational Health, Safety and Welfare Act 1986 (SA), Workplace Health and Safety Act 1995 (Tas), Occupational Health and Safety Act 2004 (Vic), Occupational Safety and Health Act 1984 (WA).
8. An indictable offence is generally of a more serious nature than a summary offence, and triable before a jury. In Victoria, however, some indictable offences, including this one, may in certain circumstances be heard and determined summarily in the Magistrates Court, under the Criminal Procedure Act 2009 (Vic), s. 28.
9. For the 2010/2011 financial year, one penalty unit equates to $119.45. Therefore, offenders may face a maximum fine of A$1,075,050 for corporations and A$215,010 for a natural person. The State Treasurer revises the value of a statutory penalty unit annually.
10. Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), s. 16(2)(b)(ii).
11. Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), s. 17.
12. Comcare is a statutory authority, which administers the Commonwealth’s workers’ compensation scheme and occupational health and safety legislation.
13.. Australian Government, Comcare, Fact Sheet, “OHS Risks of Smoking”. Available from: http://www.comcare.gov.au/forms__and__publications/fact_sheets/ohs_risks_of_smoking.
14. CCH Australia, Australian Workers Compensation Commentary, 2006, 1-060.
15. CCH Australia, Australian Workers Compensation Commentary, 2006, 1-060.
16. Victorian Accident Compensation Tribunal, July 1988.
17. The employer was found to have breached the former Factories, Shops and Industries Act 1962 (NSW).
18. Scholem v NSW Department of Health (1992) 3 APLR 45, NSW District Court, 27 May 1992.
19. The relevant workers’ compensation legislation for each jurisdiction (not including legislation that has been repealed but which may still be of relevance to some injuries and diseases arising in the past) is: Safety, Rehabilitation and Compensation Act 1988 (Cth); Workers’ Compensation Act 1951 (ACT), Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998, (NSW); Workers Rehabilitation and Compensation act 1986 (NT); Workers’ Compensation and Rehabilitation Act 2003 (Qld), Workers Rehabilitation and Compensation Act 1986 (SA); Workers’ Rehabilitation and Compensation Act 1988 (Tas); Workers Compensation Act 1958 (Vic); Accident Compensation Act 1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA).
20. See generally CCH Australia, Australian Workers Compensation Commentary, 2006, 1-040 to 1-140.
21. CCH Australia, Australian Workers Compensation Commentary, 2006, 1-060 and 14-000 to 14-240.
22. Civil Law (Wrongs) Act 2002 (ACT).
23. Civil Liability Act 1936 (SA).
24. Wrongs Act 1958 (Vic).
25. Occupiers’ Liability Act 1985 (WA).
26. Civil Liability Act 1936 (SA), s. 19 and Occupiers’ Liability Act 1985 (WA), s. 2.
27. See, e.g., Wrongs Act 1958 (Vic), s. 14B(3) and s. 14B(4).
28. Bowles v Canton Pty Ltd (Unreported, 13 September 2003, Magistrates Court of Victoria).
29. Ibid.
30. Disability Discrimination Act 1992 (Cth), Discrimination Act 1991 (ACT), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1992 (NT), Anti-Discrimination Act 1991 (Qld), Equal Opportunity Act 1984 (SA), Anti-Discrimination Act 1998 (Tas), Equal Opportunity Act 2010 (Vic), Equal Opportunity Act 1984 (WA).
31. Francey & Ors v Hilton Hotels of Australia Pty Ltd [1997] HREOCA 56, 25 September 1997.
32. Disability Discrimination Act 1992 (Cth).
33. Inquiry Commissioner Mr Graeme Innes AM, Reasons for Decision in Francey & Ors v Hilton Hotels of Australia Pty Ltd [1997] HREOCA 56, 25 September 1997.
34. In his Reasons, the Inquiry Commissioner, Mr Graeme Innes AM, refers to section 23(1)(e), but the text that follows suggests he meant to refer to section 23(1)(b).
35. Disability Discrimination Act 1992 (Cth), sections 23(2)(b) and 24(2).
36. For examples, see list of passive smoking cases in Appendix 2.
37. See e.g. report by the SmokeFree Australia coalition for clean safe workplaces concerning the 2005 case of a South Australian bar worker who won an award for compensation after he developed tongue cancer, having worked in a smoky pub for three years: http://www.ashaust.org.au/SF'03/releases/051121.htm, visited 5 February 2007.