Passive smoking and the law

21 April 2010

You might have problems with people smoking in your workplace, or smoke filtering in to your home from your neighbour’s house. Perhaps you are an asthmatic and feel that you cannot attend certain bars and nightclubs because of the smoke.

There are possible legal remedies available to you if you are affected by passive smoking. In the workplace, employers need to consider the contract of employment and workplace legislation regulating conditions and safety. At home, smoke from your neighbour may be a nuisance, which is a breach of the common law. If nightclubs and bars allow conditions on their premises which stop asthmatics attending, that may be discriminatory and a breach of equal opportunity legislation. Below is a clear example of one of our clients bringing a successful claim against a restaurant for harm caused to her by passive smoking.

Landmark passive smoking case

In September 2000 Meerkin & Apel won an important case in the Magistrates’ Court of Victoria. Magistrate Michael Smith handed down a landmark judgment awarding damages against a restaurant that caused a patron to suffer an asthma attack from the environmental tobacco smoke (commonly referred to as ETS or passive smoking) whilst dining at the restaurant.

Brief facts

Our client, Ms Bowles was part of a group dining at the restaurant (Tien Tien) where a friend of hers had booked a table and specified a non-smoking table. Early in the evening Ms Bowles advised the staff at Tien Tien that she suffered from asthma, but was seated adjacent to the smoking section. The division of the smoking and non-smoking sections was arbitrary and ineffective. The atmosphere became smoky and Ms Bowles asked to be moved deeper into the non-smoking section. The waiter advised that this was not possible and used instead the air-conditioning system, which was later turned off after a customer complaint.

After some time in the smoky environment, Ms Bowles suffered an asthma attack. Approximately one week later she suffered a further asthma attack and was compelled to seek medical help.

What did the Court decide?

The Court agreed with our submissions in determining that a contractual relationship existed between Ms Bowles and Tien Tien and that part of the contract required Ms Bowles to be seated in a non-smoking area, which would be safe and not harmful to her health. The Court found that there was a breach of contract by Tien Tien.

The Court also found that Tien Tien had been negligent in breaching its duty of care owed to Ms Bowles and that the possibility of someone suffering an asthma attack as a result of Environmental Tobacco Smoke was reasonably foreseeable.

Meerkin & Apel was also successful in obtaining an award of damages for Ms Bowles for the harm caused to her by the Environmental Tobacco Smoke.

Why was this a landmark decision?

As far as can be determined, the Tien Tien case was the first time that a Court in Australia (and possibly the world) had found that a person who enters onto a premises and is harmed by Environmental Tobacco Smoke can hold the occupier of the premises responsible for damages. Damages have previously been awarded for harm caused by Environmental Tobacco Smoke only in circumstances where employees, over a long period of time, had contracted a disease caused by that smoke.

Relevant areas of smoke-related law

The Tien Tien case was decided on the grounds of contract law, negligence and the Wrongs Act (Victoria). However there are many other areas of law which may be applicable in regard to Environmental Tobacco Smoke such as:

  • The common law tort of nuisance (where smoke infiltrates from one premises to another);
  • The Trade Practices Act (Commonwealth);
  • The Fair Trading Act (Victoria) and similar legislation in other States;
  • Tobacco legislation such as the Victorian Tobacco (Amendment) Act of 2000, the Tobacco (Further Amendment) Act 2001 and the Tobacco (Miscellaneous Amendment) Act 2002;
  • Discrimination laws such as the Equal Opportunity Act (Victoria) and equivalent legislation in other States and the Commonwealth (in regard to asthmatics and other persons with disabilities);
  • Statutory duties, such as section 56(2) of the Labour and Industry Act 1958 (relating to factories and the ventilation required);
  • Occupational Health and Safety legislation in various States;
  • Workplace legislation and regulations, workplace Awards and other industrial relations matters, all of which affect the terms and conditions of contracts between employers and employees in Australia.


Smoke-related law and the rights of workers and other individuals being exposed to Environmental Tobacco Smoke is a complex and ever-changing area of the law, as indicated by this landmark case. The above summary is a brief summary only and is not intended to be exhaustive.


The information contained in this document is not intended to be anything other than a brief summary. It is recommended that full legal advice be obtained prior to making any decision based on the information contained on this document. This document is subject to copyright laws and all rights are reserved in relation to the copyright in this document.