Legal smoke signal for hotels, clubs

By FAY BURSTIN in Melbourne
The Advertiser
September 14, 2000

RESTAURANTS, hotels and clubs were yesterday issued a stern warning over the legal consequences of passive smoking after a landmark court ruling.

Asthmatic Andrea Bowles, 53, was yesterday awarded $7600 damages after a magistrate found a restaurant in the Melbourne suburb of St Kilda failed to provide a safe, smoke-free dining environment.

Mrs. Bowles, a nurse, suffered a severe asthma attack, forcing her to take a week off work and ruining a Queensland holiday, after a meal at the restaurant with her husband and four friends in August, 1998.

The party had booked a table in the non-smoking section but were seated at a table with an ashtray.

They were moved to another table about a metre away, but there were no signs distinguishing smoking from non-smoking areas and about a dozen people were smoking within a two-metre radius.

Magistrate Michael Smith said the operators of Tien Tien restaurant owed its patrons and staff a duty of care to provide a safe environment.

But he reduced an initial $10,000 award by 30 per cent because Mrs. Bowles contributed to her own illness by failing to leave the restaurant sooner.

Quit director Todd Harper said the decision set an important precedent for the entire hospitality industry, including restaurants, hotels, bars, clubs and gaming venues.

"Smoking and non-smoking areas don't work - we may recognise the boundaries but smoke certainly doesn't," he said.

At least 75 per cent of Australians were non-smokers and passive smoking was a proven cause of lung cancer in non-smokers, he said.

Mrs. Bowles yesterday was interstate on holidays but her solicitor, Isaac Apel, said outside court she was delighted with the victory. He said the $7606.20 would not even cover her legal expenses, but Mrs. Bowles had launched the lawsuit as a matter of principle.

Australian Medical Association Victorian president Dr Michael Sedgely welcomed the ruling and said he expected that all public places would eventually become smoke-free.

Australian Hotels Association spokesman Alan Giles said the decision was not unexpected and part of a gradual industry response to demand. "Fewer and fewer people are smoking and the hotel industry is slowly making cultural changes such as clearly identified smoking and non-smoking areas and proper air conditioning," he said.

"It's a sensible solution."

Australia's peak asthma body, the National Asthma Campaign, hailed the payout to Mrs. Bowles as a wake-up call for restaurants.

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BOWLES v. CANTON PTY LTD (Trading As Tien Tien Café. Bar) Decision Of Magistrates' Court Of Victoria
13 SEPTEMBER 2000

Background

The plaintiff, Andrea Bowles, an asthmatic, attended the Tien Tien restaurant in August 1998. Another member of her party had earlier made a telephone reservation, stipulating that their table was to be in the non-smoking section of the restaurant.

Ms Bowles and her party were seated at a table on the border between the smoking and non-smoking areas of the restaurant, as designated that evening. Between 10 and 12 people were smoking within about 2 metres of where Ms Bowles was sitting.

The Magistrate accepted the following evidence led on behalf of Ms Bowles:

- shortly after their party was seated, Ms Bowles' husband advised a waiter that Ms Bowles was asthmatic;

- about half an hour after entering the restaurant Ms Bowles and her party noticed the atmosphere becoming smoky as the restaurant filled up;

- Ms Bowles's husband asked that they be moved deeper into the restaurant in order to minimise the effects of the nearby smokers, but was advised by a waiter that this was not possible and that the air conditioning would be turned on;

-the air conditioning was then turned on for a brief period, the atmosphere in the restaurant improving markedly to the point where Ms Bowles was completely satisfied with the conditions;

- the air conditioning was subsequently turned off, apparently on the complaint of another customer, and the atmosphere returned to its previous condition;

- after about an hour-and-a-half on the premises, Ms Bowles suffered an asthma attack. She became ill and was forced to miss a week of work, and her symptoms gradually resolved over about six to eight weeks.

Ms Bowles sued the restaurant for damages.

The Decision

The Magistrate held that the evidence establishes a clear causal connection between the restaurant conditions and the illness of the plaintiff over the following six to eight weeks. He found the restaurant liable on three separate grounds ö breach of contract; breach of duty of care in negligence; and occupiers liability. He reduced the award of damages by 30% for contributory negligence by Ms Bowles.

Breach of Contract

The Magistrate held that, as a condition of the contract between Ms Bowles and the restaurant was that she would be seated in a non-smoking area, the following two terms should be incorporated into the contract:

- that the premises would be safe for occupation by Ms Bowles and not injurious to her health;

- 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.

The Magistrate held that the restaurant had breached both of these terms.

Occupiers Liability and Breach of Duty of Care in Negligence

Under section 14B of the Wrongs Act 1958 (Vic), 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. This statutory duty operates parallel to the common law duty of care.

As stated above, the Magistrate held that Ms Bowles had suffered an injury as a consequence of the condition of the premises.

He held that the injury satisfied the test of foreseeability - it was foreseeable to someone in the position of the manager of the restaurant that there was a class of persons to whom environmental tobacco smoke represented a threat to health. In addition, an employee of the restaurant had been informed that Ms Bowles had a condition to which environmental tobacco smoke was a hazard.

In determining that the restaurant did not observe the required standard of care expected of a reasonable person in its position, and therefore breached its duty to Ms Bowles (both in statutory occupiers liability and in common law negligence), the Magistrate took account of the following factors:

- that the seating in the downstairs area (where Ms Bowles was sitting) was arranged to maximise customer capacity none of the tables was placed more than one metre from any other;

- that there was no greater degree of separation allowed between tables falling into the smoking and non-smoking category;

- that the size of the non-smoking area within the restaurant was determined on a day to day basis according to the number of patrons requesting a non-smoking table. As a consequence, the non-smoking section would be in the form of an island of varying size positioned in the rear half of the restaurant;

- that Ms Bowles, a person with a particular vulnerability which was communicated to the restaurant, was seated on a table immediately adjacent to at least two smoking tables;

- that, on the Magistrate's finding, the restaurant had a ventilation and air conditioning system capable of effectively removing or minimising any risk occasioned by environmental tobacco smoke;

- that such risk could have been minimised further by the employment of additional fans at the rear of the premises employed to generally impel the air forward. Something of this sort was installed by subsequent occupiers of the restaurant;

- that the non-smoking area could have been better sited to take advantage of what little natural ventilation might have been provided by the entrance door at the front of the restaurant;

- that the air conditioning and ventilation could reasonably have been left on or better employed throughout the course of the defendant's stay in the restaurant.

Contributory Negligence

The Magistrate found that Ms Bowles had contributed to the damage she suffered, and reduced her damages award by 30%. He said:

While the plaintiff was at the restaurant with friends and no doubt anxious to continue an enjoyable social occasion it became reasonably evident as time went on, that the defendant was not going to resolve the problem and I find that a point was reached where the plaintiff, mindful of her own safety, would have exercised reasonable prudence by leaving the restaurant. By failing to leave as this situation clarified, I find that the plaintiff's conduct contributed to the damage ultimately suffered.

The Award

The Magistrate awarded Ms Bowles $10,000 for pain and suffering, $541 for loss of income, and $325 in respect of medical and like expenses. He reduced this amount by the 30% contributory negligence, leaving an award of $7,606.20. He also awarded costs against the restaurant.

Jonathan Liberman Legal Consultant,
VicHealth Centre for Tobacco Control, and Quit Victoria
14 September 2000