News
Up in Smoke
A story of passive smoking and direct liability
It seems these days that we are accustomed to hearing reports from the United States evidencing the victories of anti-tobacco groups in what appears to be a world-wide war against smoking. A recent decision of the New South Wales Supreme Court suggests, however, that the war may be being fought closer to home than we might have expected - and that there might be cause for employers to take pause.
Marlene Sharp had worked as a bar maid in a small town in New South Wales for over 23 years. Between 1972 and 1974 she worked at the Port Kembla Hotel - and from 1984 to 1995 was employed in the Port Kembla RSL Club. Ms Sharp said that, in the course of each of these jobs, she was exposed to large amounts of passive smoke. She maintained that each of the bars in which she had worked were commonly swathed in a "blue haze", and that she was regularly subjected to having smoke blown either directly in her face or in her general direction. She said that, from time to time, she suffered irritation in her eyes and periodically had a sore throat.
Matters took a turn for the worse in 1995, however, when Ms Sharp discovered a lump in her neck. The lump was subsequently diagnosed as a malignant cancer of the larynx. Ms Sharp was forced to resign from her employment because of her illness. Although the malignant lump was successfully removed Ms Sharp has been advised that there is now a high probability that she will contract a second cancer.
Ms Sharp brought an action against each of her former employers seeking damages for personal injury. The first employer (the Hotel) settled her claim against it by agreeing to pay her AUS$160,000. The claim against the second employer (the RSL) proceeded to a hearing earlier this year in the Supreme Court of New South Wales.
The hearing involved a good deal of evidence - much of it from medical experts. At the conclusion of the eight week trial, however, the four person jury found that the RSL Club had been negligent in failing to protect Ms Sharp from the dangers of passive smoke, and awarded her over AUS$306,000 (in addition to the amount already paid in the settlement with the Hotel).
As might be predicted, in press reports following the decision the RSL Club indicated its intention to consider an appeal. The decision has, nonetheless, sent a resounding "wake up" call to many Australian employers with the suggestion now being made that in order to avoid similar claims owners of bars and clubs should make their premises smoke-free.
Many employers in this country will no doubt now ask the question: could it happen here?
New Zealand's legislature took a strident step in the war against tobacco in 1990 with the enactment of the Smoke-Free Environments Act. Amongst other things, that legislation obliges all employers to have a written policy concerning smoking in the workplace. Smoking is not permitted in office areas where more than one person works in a common air space, or in any part of the workplace to which the public normally has access.
Licensed premises are one of the few workplaces that escape the otherwise rigorous provisions of this legislation. The Smoke-Free Environments Act permits smoking in any area in a licensed premises set aside primarily for the consumption of liquor. Along similar lines, casino gaming areas are also exempted from the restrictive provisions of the Act - meaning that patrons in a gaming area may smoke.
The position in New Zealand is, therefore, not entirely unlike that of the circumstances of Ms Sharp - employees in bars (and casinos) may, in the ordinary course of their work, be subjected to passive smoke. An important distinction in New Zealand, however, is the effect in this country of the Accident Insurance Act. That legislation (in keeping with its predecessors) prevents the bringing of an action in tort seeking damages for personal injury. In other words, New Zealand's legislation would have prevented Ms Sharp from bringing her claim in this country.
That is not, however, an end to the matter. Employers in New Zealand are required to have written policies concerning smoking in the workplace. In Hurst v Prudential Assurance Co. (Unreported, Employment Court, Wellington, 2 August 1999) the Court held that it was open to an employee to bring a claim for breach of a workplace smoking policy in contract. Such a claim is exempt from the statutory bar contained in the accident compensation because a claim in contract is brought not to obtain damages for injury but to enforce rights under a contract.
As a matter of practicality, therefore, an employee may bring a claim against an employer in New Zealand where it can be shown that there has been a breach of the employer's workplace smoking policy. An employee need not have suffered a significant injury (such as the cancer suffered by Ms Sharp) before bringing such a claim.
The only arguable inconsistency with this state of affairs is that workers in pubs and casinos (who may lawfully be subjected to passive smoke) do not have any redress - because their employers are unlikely to be in breach of their employment contracts. That position may, however, be subject to change in the near future. As many employers will be aware, a proposal to ban smoking in pubs, cafes and restaurants is shortly to be tabled in Parliament. Not only might such an amendment provide a safer workplace for workers in these occupations - it may also increase the prospect of a successful action by an employee against an employer for failure to ensure adherence to the law.
