Passive smoking raises risks

HOSPITALITY industry employers will need to look closely at their workplace smoking policies following a landmark Supreme Court decision to award more than $466,000 in damages in a passive smoking case.

A four-man Supreme Court jury ruled that former barmaid Marlene Sharp, a life-long non-smoker who worked at the Port Kembla Returned Serviceman’s League Club from 1984 to 1995, contracted cancer of the larynx as a direct result of breathing other people’s smoke while at work.

The court found her employer had been negligent and breached its duty of care

by exposing her to unnecessary risk.

Mrs Sharp had also sued another former employer – the Port Kembla Hotel where she had worked from 1972 to 1984 – but that case was settled out of court with a payment of $160,000.

The court took the $160,000 payment into account so the RSL only had to pay around $300,000.

Insurance law firm Phillips Fox senior associate Simon Lusk said similar cases had been brought and settled out of court in Australia for some years but this was the first case decided by the courts here.

“The dangers of smoking are no longer in dispute so this verdict comes as no surprise to employers or their insurers,” Mr Lusk said.

“The real issue is the public nature of this case. It has removed any doubt that passive smoking cases can succeed, which will encourage other employees to make claims of this kind.”

However, Mr Lusk said it was important to realise that Mrs Sharp had been a life-long non-smoker.

“It will be much more difficult for plaintiffs who have smoked for even part of their lives to prove their injuries were caused by passive smoking,” he said.

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