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8.1 Introduction
8.2 What does a claimant need to prove?
8.3 What evidence is required in practice?
8.4 Progress with UK legal cases to date
8.5 Experience of legal cases outside the UK
8.6 Levels of compensation
8.7 The future for smoking at work
8.8 Smoking at home
8.9 Summary
The evidence reviewed in the earlier chapters of this book make it clear that ETS exposure is harmful. This, in turn, raises important questions as to the legal rights and responsibilities of the public as well as of employees and employers in relation to limiting or preventing ETS exposure. However, ETS is exempt currently from UK legislation designed to protect employees from hazardous occupational exposures on the grounds that ETS exposure does not arise from manufacturing or other processes that are fundamental to the occupation itself, but from smoking by other staff, customers or visitors. At present, there is no legislation in the UK or decided case law that creates a clear duty upon employers to protect employees from ETS exposure in the workplace. Unless this regulatory approach changes, employers must deal with the hazard presented by ETS in the context of their general duties to safeguard their workforce. The legal implications of exposure are likely to relate to claims by employees for compensation for damage to health as a result of ETS exposure at work. This chapter summarises the current status of the law relating to ETS exposure in the UK, reviews the legal basis on which individual cases can be made, and provides examples of progress with current case law in the UK and elsewhere. The legal perspective on work and leisure exposure to Environmental tobacco smoke.
To succeed in a claim for compensation in a UK court, a claimant needs to prove
all of the following:
• He / she has an illness that can be caused by exposure to ETS (Injury).
• The claimant’s work posed a real risk of causing this type of illness and his / her employer knew (or ought to have known) that the claimant was exposed to that risk (Foreseeability).
• Given the foreseeable risk, the employer failed to take adequate steps to prevent or reduce the risk, as far was reasonably practicable, of the claimant suffering from this type of illness (Breach of Duty).
• The claimant’s illness was caused, or materially contributed to, by exposure to ETS at work and by the employer’s breach of duty (Causation).
• The claim must be also brought in time (Limitation).
Each of these elements will now be considered in turn.
The scientific evidence reviewed in Chapter 2 demonstrates that ETS is an independent risk factor for a number of conditions and diseases in adults. In particular, ETS is now a recognised cause of lung cancer, heart disease and exacerbation of asthma in adults.1,2 These are the injuries most likely to be accepted by a court as being caused by ETS exposure at work.
There are two elements to foreseeability:
• ‘guilty knowledge’ of the risks of passive smoking in general, and
• a risk of employees being exposed to ETS in the workplace.
Guilty knowledge refers to the general knowledge about a particular risk, and it can be argued that there has been general knowledge that ETS exposure comprises a health risk for many years. In a report published in 1998, the UK Government Scientific Committee on Tobacco and Health concluded that passive smoking was a cause of lung cancer and ischemic heart disease; 3 the US Surgeon General concluded that ETS exposure was a cause of lung cancer as early as 1986;4 and these conclusions have been reiterated in many other reports. 1,2,5–7 It is evident, therefore, that employers can no longer use the excuse that there is ‘scientific uncertainty’ as to whether ETS exposure constitutes a health risk.
Further, given the publicity over recent years about the dangers, it is almost impossible for any employer to argue that they were not aware of the risk. The employer cannot simply wait for an employee to be ill before the employer is on notice of a problem. If ETS exists in the workplace, the employer is required to assess the risk and determine the possible danger that might arise (see below). The employer does not have to foresee the exact illness, only that some form of illness can be caused by the exposure to ETS at the workplace. It is sufficient that some illness of the general type is foreseeable (see Hughes v Lord Advocate [1963] Appeals Cases 837).
The existence of a duty of care between an employee and employer has been established for many years (see Wilsons & Clyde Coal Co Ltd v English [1938] Appeals Cases 57). Section 2 of the Health and Safety at Work Act 1974 (HSWA) requires an employer to ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work.8 The test as to what is reasonably practicable was set out in the case of Edwards v National Coal Board ([1949] 1, All England Law Reports 743). This case established that the risk must be balanced against the ‘sacrifice’, whether in money, time or trouble, needed to avert or mitigate the risk. By carrying out this exercise the employer can determine what measures are reasonably practicable to take. This is effectively an implied requirement for a risk assessment. Failure to provide relief against tobacco smoke has been found to be a breach of an implied term in the contract of employment, based on the duty in the HSWA 1974 s2(1), in a recent case (Karen Whitehead, see below) in the Employment Appeal Tribunal. The general duty upon an employer to carry out risk assessments of health and safety hazards involved in its business is set out in Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR).
Regulation 3 states:
Every employer shall make a suitable and sufficient assessment of (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking for the purpose of identifying the measures he needs to take to comply with the requirement and prohibitions imposed upon him, by or under the relevant statutory provision and by Part II of the Fire Precautions (Workplace) Regulations 1997.
The legal perspective on work and leisure exposure to ETS it was established by the Court of Appeal in R v The Board of Trustees of the Science Museum ([1993] 3, All England Law Reports 853) that risk means the possibility of danger, and not just actual danger.
Breach of Regulation 3 of the MHSWR does not give rise to civil liability (although the Health and Safety Commission is proposing to remove this exclusion) but it can be relied upon to prove a breach of an employer’s ‘common law’ duty to take care of its employees. In a personal injury case concerning a claim for repetitive strain injury (Lindsay & Johnson v Claremont Garments Ltd, Newcastle Upon Tyne County Court, January 1998) the trial judge made the following observation about Regulation 3 (in relation to the 1992 regulations of the same name which introduced the general requirement for risk assessment):
...although the absence of a necessary risk assessment is not itself actionable as a breach of statutory duty, it is so central to the whole scheme that it should be considered important evidence of a failure to provide a safe system of work in all the circumstances, and therefore common law negligence. This argument is also applicable to other parts of the [MHSWR], such as health surveillance, the need for procedures to deal with serious and imminent dangers and the principles of prevention.
Regulation 4 of the MHSWR sets out the priority to be given to measures to deal with the hazards that have been risk assessed where action is required. The hierarchy of measures is as follows:
(a) Avoid risks
(b) Evaluate the risks which cannot be avoided
(c) Combat the risks at source
(d) Adapt the work to the individual, especially as regards the design of workplaces, the choice of work, equipment and the choice of working and production method, with a view, in particular, to alleviating monotonous work and work at predetermined work rate and to reducing their effect on health
(e) Adapt to technical process
(f) Replace the dangerous by the non-dangerous or the less dangerous;
(g) Develop a coherent overall prevention policy that covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment
(h) Give collective protective measures priority over individual protective measures, and
(i) Give appropriate instructions to employees .
Since the object of these regulations is the avoidance of risk, the safest course of action an employer can take is to prevent ETS exposure by making all indoor areas of the workplace smoke-free. The provision of indoor smoking areas or rooms would need to comply with Regulation 6(1) of the Workplace (Health Safety and Welfare) Regulations 1992 (the Workplace Regulations),10 which requires employers to make ‘effective and suitable provision’ for the workplace to be ‘ventilated by sufficient quantity of fresh or purified air’. The quality of the ventilation would need to be sufficient to prevent harm, rather than simply remove nuisance effects (see Chapter 5), to avoid giving rise to civil liability. This obligation extends, under Regulation 25 of the Workplace Regulations, to facilities for rest and to eat meals.
To establish causation it must be proved that the claimant’s illness was caused not only by exposure to ETS at work, but also that the employer was in breach of duty by failing to have in place reasonably practicable measures to deal with the risk of ETS. This is essentially an issue that will be decided by reference to expert medical evidence.
The onus is on the claimant to prove causation on the balance of probabilities (see Bonnington Castings v Wardlaw [1956] Appeals Cases 613 and Pickford v Imperial Chemical Industries [1998] 1, Weekly Law Reports 1189). A claimant will not recover compensation if the damage would have occurred anyway. An example of this is Barnett v Chelsea and Kensington Hospital ([1969] 1, Queens Bench Reports 428), in which a person who drank arsenic was treated negligently in hospital. The evidence in this case was that even with proper treatment the person would have died, so the negligent treatment was not relevant.
However, to succeed in a claim, the claimant does not need to prove that the employer’s breach of duty which caused him/her to be exposed to ETS at work was the sole cause of his / her illness. In these circumstances, the claimant will succeed if the breach of duty made a material contribution (see Bonnington Castings v Wardlaw [1956] Appeals Cases 613, concerning a claim for pneumoconiosis) to the illness. The claimant will also succeed if he / she can prove the breach of duty was capable of causing the illness, and materially increased the risk of the condition occurring (see McGhee v National Coal Board [1973] 1, Weekly Law Reports 1 concerning a claim for dermatitis where the court found that the risk of dermatitis had been increased materially because there were inadequate washing facilities in the factory).
The question that follows is whether the claimant can recover compensation on the legal perspective on work and leisure exposure to a 100% basis where ‘material contribution’ is involved. To answer this it needs to be determined whether the illness is indivisible or divisible. Indivisible means it is not possible to attribute one part of the illness to one cause and other parts to other causes. If this is the situation, the claimant will recover in full against the employer (see Bonnington Castings v Wardlaw [1956] Appeals Cases 613). If the illness is divisible, that is different parts of the illness can be attributed to different causes, then the claimant will only recover compensation for that caused by the defendant’s breach of duty. In the case of Holtby v Brigham and Cowan (Hull) Ltd (Court of Appeal 6 April 2000), the occurrence of pleural plaques caused by asbestos exposure was found to be divisible and, as a consequence, the claimant only recovered for that part of the condition caused by the defendant’s breach of duty.
In a passive smoking case, the claimant has three years to issue court proceedings from the date he/she knew, or ought to have known, that his / her illness was caused by exposure to ETS at work. If court proceedings are not issued in this period then the claimant will not normally be allowed to bring a claim. In some circumstances, however, the court may allow the case to proceed even if the limitation period has expired if there is a good reason why court proceedings were not issued in time.
Individuals who seek to claim compensation need to demonstrate the following:
(a) That the employers knew, or should reasonably have known, that ETS exposure presented a risk of injury to their non smoking employees, and that the employers had this knowledge at the time the relevant exposure took place. Many claims may involve historical exposure going back over many years, so recent developments and reports may be of limited assistance.
(b) That the employer knew not only of the general risk from ETS, but also that the individual employee was being exposed to dangerous levels of smoke in their day-to-day work. This requires evidence from work colleagues, and would require the Court to make the best assessment it can on the basis of the evidence of what the exposure levels were. Only where it is decided that the exposure levels were high enough that the employer should have done something about it at the time would the exposure potentially found a claim.
(c) That the medical condition he or she developed had been caused by the
exposure at work, rather than by any exposure he/she may have had outside
work. A claimant who lives with a smoker is, therefore, likely to encounter
significant difficulties, as is someone who regularly socialises with smokers
or who is an ex-smoker themselves. These factors would be matters of
evidence requiring a detailed analysis of the claimant’s lifestyle and
consideration by medical experts. It may be sufficient to prove that the
occupational exposure made a material contribution to the development of
the condition, rather than being its sole cause, but the hurdles will be high.
There have been six notable cases to date in which individuals have claimed compensation for damage caused by ETS at work:
In January 1993, Veronica Bland, a local government employee, reached an out of-court settlement of £15,000 with her employers after suing them for exposure to ETS at work that, she argued, caused chronic bronchitis.
In July 1995, Beryl Roe, who worked at the Stockport Metropolitan Borough Council, reached an out-of-court settlement of £25,000 with her employers in relation to her claim for passive smoking at work. She retired in 1987 before the Council had introduced a smoking policy. Her case was that she had suffered eye, nose and throat symptoms as well as bronchitis from exposure to ETS at work.
Agnes Rae’s case came before Lord Bonomy in the Court of Session in Scotland in March 1997. She sued her employer Glasgow City Council for compensation on the basis that they should have warned her about the dangers of exposure to ETS, and for failure to have adequate ventilation, pursuant to Section 7 of the Office Shops and Railway Premises Act 1963. The case failed. The judge said that the series of reports of medical and non-medical bodies cited on her behalf did not identify a risk of lung disease or respiratory disease being ‘contracted at work as a result of passive smoking’. In relation to Section 7 of the Act he concluded, the legal perspective on work and leisure exposure to ETS ‘There is nothing on record to indicate that effective and suitable provision was not being made for the ventilation of [Agnes Rae’s] workplaces.’ However, Lord Bonomy also said of the section that it was, ‘...plainly directed at the mischief of foul air in the atmosphere of the workplace; tobacco smoke which fouled up the atmosphere clearly fell within that mischief.’
Sylvia Sparrow’s case came before the Manchester High Court in May 1998. This case also failed. Sylvia Sparrow worked at a residential nursing home, St Andrew’s Homes. Her claim was for exacerbation of asthma caused by ETS. The judge accepted that, in principle, employers have to take reasonable steps to protect employees from the hazard of tobacco smoke but, in this case, found that the provision of separate smoking rooms by the employer constituted reasonable steps to prevent exposure to ETS.
Mickey Dunn claimed he had contracted asthma after breathing in the smoke of customers’ cigarettes and cigars while working in a casino. In 2003, he was awarded over £50,000 in an out-of-court settlement, though this was on the basis that the employer did not accept liability for his illness.
The most recent case is that of Karen Whitehead who has asthma and who, in 2003, won £17,000 compensation for being sacked unfairly when smoking by workmates made her ill. An employment tribunal ruled that Karen, who was off sick for 16 of the 45 days she worked at a community centre in Plymouth, was discriminated against because of her asthma disability.
Several cases of claims for compensation have progressed in other countries.
In July 2001, the official Australian compensation agency paid compensation to Mr Brown, a teacher, who claimed that smoke-filled staffrooms at work had contributed to chronic lung disease. He received A$100,000 compensation.
In May 2001, Marlene Sharp, a former barmaid in Australia who had never smoked, won damages of A$450,000 from her ex-employer for lung cancer caused by exposure to ETS at work.
Norma Broin worked as an airline attendant. In 1990, US Congress banned smoking on domestic flights. Norma Broin, who had never smoked, developed lung cancer which she argued had been caused by her exposure to ETS at work. Her claim was part of a successful class action in America which won compensation of US$350 million in 1991.
In October 2002, Heather Crowe, a former waitress and non-smoker, was exposed to ETS as a result of working for 12 hours a day, six days a week, in restaurants, bars and hotels for 40 years. She developed lung cancer, which she claimed was caused by ETS, and was awarded compensation (amount unknown) by the Ontario Workplace Safety and Insurance Board.
Effectively, any personal injury claim is two separate claims for compensation: ‘general damages’ and ‘special damage’. Typical levels of compensation vary from country to country, and from case to case.
This is compensation that cannot be calculated, for example for an injured person’s pain and suffering and loss of amenity. Loss of amenity is the inability of the claimant to do things after the contraction of the illness that they could do before. It is also possible to recover general damages for future financial losses, such as loss of earnings or the cost of future care when the claimant is likely to be ill for some time.
As an approximate guide, general damages for pain, suffering and loss of amenity in a lung cancer case in the UK would be in the region of £40,000– £50,000. Bronchitis and wheezing not causing serious symptoms would provide. The legal perspective on work and leisure exposure to ETS damages of around £10,000–£15,000. Temporary aggravation of bronchitis or other respiratory problems resolving within a few months would provide damages in the region of £1,000–£2,500.
This is compensation that can be calculated, and relates to losses that the claimant has incurred to the date of trial or settlement. The amount of damages awarded for financial losses and expenses will vary from case to case, according to the losses incurred.
Reasonable and responsible employers have now known for several years that ETS represents a health hazard, and that they have a responsibility to protect their employees from the harm ETS can cause. In the special case of the hospitality industry, Action on Smoking and Health wrote (with appropriate legal support and advice) to the human resources directors and chief executives of about 150 leading UK hospitality trade employers, pointing out their obligations to protect the health of employees in hospitality venues (see Box 8.1).
It is likely that in the relatively near future, many more personal injury compensation claims will succeed and, depending on the pace of legislative change in the UK, may actually pre-empt the introduction of comprehensive smoke-free policies before any legal requirements come into force.
There is high level of public support for restrictions on smoking in public places. A poll conducted by BMRB (commissioned by the British Heart Foundation and Ash) found 70% of the English public supported all workplaces, including pubs and clubs being smokefree.
This evidence adds to an earlier poll conducted by You Gov in December 2005 (commissioned by Cancer Research UK and Ash) which, when given a list of specific places, 66% of people (in England) agreed that all pubs and bars should be smokefree by law. This figure was up from 51% in spring 2004.
In the meantime, what can employers reasonably be expected to do about smoky workplaces? Hopefully, good employers will treat the issue proactively as one of industrial relations, which requires the active involvement of the workforce and their unions in finding a solution. For enclosed workplaces, the implementation of comprehensive smoke-free policies is the best and most likely outcome. It is also hoped that more forward-looking employers will combine this with providing support and assistance for those employees who do smoke but who wish to give up. There are some workplaces where the issues are more complicated, and reasonable policies for some of these are discussed in Chapter 14.
One thing is certain: the employer who does nothing at all to deal with the health hazards of passive smoking among their workforce is storing up significant problems for the future. Compensation claims may always remain difficult but there will be those that can succeed. Employers who do nothing to address the problem are those most likely to be at risk from such claims in the future.
Dear
Re: The law and passive smoking
We are writing to ask you to consider your policy on passive smoking in the workplace, in view of what we believe to be your duties as an employer under the Health and Safety at Work Act. We hope to persuade to you that a smoke free workplace is in the interests both of your company and of its employees. In any event, we wish to draw your attention to the serious legal risks now being run by any employer that chooses to allow smoking at work.
Secondhand smoke contains over 4,000 chemicals, including benzene, formaldehyde, arsenic, ammonia and hydrogen cyanide. The US Environmental Protection Agency has classified environmental tobacco smoke as a known human (class A) carcinogen. The immediate effects of inhaling secondhand smoke include eye irritation, headache, cough, sore throat and nausea. Exposure for just 30 minutes to secondhand smoke has been shown to reduce coronary blood flow. Long-term inhalers of secondhand smoke suffer an increased risk of a range of smoking-related diseases. The Government appointed Scientific Advisory Committee (SCOTH) concluded that secondhand smoke is a cause of lung cancer and ischaemic heart disease in adult non-smokers and a cause of respiratory disease, cot death, middle ear disease and asthma in children. The British Medical Association estimates that secondhand smoke causes at least 1,000 premature deaths a year. The dangers of secondhand smoke have also been well publicised by the heads of all the Royal Colleges of Medicine and by the Government’s Chief Medical Officer.
Because of the widespread publicity the scientific evidence on secondhand smoke has now received, it is our view that the date of “guilty knowledge” under the Health and Safety at Work Act 1974 has passed. Indeed, we believe that employers should have known of the risks by the early 1990s at the very latest. Therefore, in the event of claims for compensation for health damage, employers will be expected by the courts to know of the health effects of exposing employees and others to secondhand smoke and to take reasonable steps to eliminate it.
It should not be surprising to anyone that secondhand smoke is a killer. In addition to your employees, particular groups of your customers are particularly vulnerable. In particular children suffer more than adults from the effects of secondhand smoke. The Department of Health is currently running a major national advertising campaign to draw to parents’ attention the risks of exposing their children to secondhand smoke: you should therefore expect the level of concern among your customers over this issue to continue to rise.
ASH intends to keep a formal record of this letter and its recipients, which we will make available to any future claimants in court cases for compensation. We are also copying this letter to the TUC and relevant trade unions. We intend to use our campaigning work to inform customers of premises which expose staff and public to secondhand smoke of the risk they are running, and we will working with major firms of employment and personal injury lawyers to publicise what we believe to be the legal rights of employees in this area. In the meantime, we warmly welcome decisions by employers such as Pizza Hut, which announced in August that its 500 restaurants would be fully smoke free. We would certainly encourage parents to take their children to such restaurant chains in preference to those that still permit smoking on the premises.
There really is no satisfactory alternative to fully smoke free workplaces. Some employers have chosen to spend heavily on ventilation systems for example; yet there is clear evidence from the World Health Organisation that ventilation systems and smoke free areas do not sufficiently protect employees, because there is simply no safe level of exposure to secondhand tobacco smoke.
Finally, smoke free workplaces are known to be a major factor in encouraging smokers to quit. This in turn could have a major positive impact on your business, by reducing illness and absenteeism and increasing productivity. Research for Health Canada suggests that the average cost to employers of each smoker employed is as much as £1,400 a year. Introducing full smoke free workplaces and helping staff who wish to quit smoking to do so (excellent support services are now available through the NHS) could be an excellent business decision. It will protect your employees and customers. It could well attract new business. It would certainly avoid a growing legal risk.
We would be pleased to discuss any of the contents of this letter with you further, and to
offer any advice and encouragement we can if you are considering smoke free policies.
We look forward very much to hearing from you.
Yours sincerely,
Deborah Arnott
Director
The discussion above relates to the effect of ETS exposure at work but, as outlined in earlier chapters, the majority of ETS exposure and consequent damage to health occurs at home. For adults able to exercise choice as to whether they allow themselves to be exposed to ETS there would be no grounds for legal redress against individuals causing the exposure (usually their partner or other family members). However, in the case of individuals unable to avoid or prevent ETS exposure, including children, there is a potential for legal action against those causing the exposure. This has not yet been tested in the UK courts.
• Employers have a general duty to safeguard their workforce.
• ETS exposure is known to be harmful but is not subject currently to specific workplace legislation.
• Employers who continue to allow employees to be exposed to ETS are at increasing risk of being found liable for personal injuries sustained by employees.
• Employers who do nothing to protect their workforce are those most at risk from legal action in the future.
1 Scientific Committee on Tobacco and Health (SCOTH). Secondhand Smoke: Review of
evidence since 1998. London: Department of Health, 2004.
2 Samet J (ed). Health consequences of secondhand smoking. A report of the US Surgeon
General, 2005 (In press).
3 Department of Health; Department of Health & Social Services for Northern Ireland;
Scottish Office Department of Health; Welsh Office. Report of the Scientific Committee on Tobacco and Health. London: HMSO, 1998.
4 US Department of Health and Human Services. The health consequences of involuntary
smoking. A report of the Surgeon General. DHHS Publication No. (CDC) 87-8398.
Rockville, MD: DHHS, Public Health Service, Centers for Disease Control, Center for
Health Promotion and Education, Office on Smoking and Health, 1986.
5 Australian National Health and Medical Research Council. Effects of passive smoking on health. Report of the NHMRC Working Party on the effects of passive smoking on health.
Canberra, Australia: Australia Government Publishing Service, 1987.
6 US Environmental Protection Agency. Respiratory health effects of passive smoking: lung cancer and other disorders. US EPA Document No.EPA/600/6-90/006F, 1992.
7 International Agency for Research on Cancer. IARC Monographs on the evaluation of
carcinogenic risks to humans, Vol 83: Tobacco smoke and involuntary smoking. Lyon, France: WHO/IARC, 2004.
8 Health and Safety at Work Act, 1974.
9 Management of Health and Safety at Work Regulations, 1999.
10 Workplace (Health Safety and Welfare Regulations), 1992.
11 The legal perspective on work and leisure exposure to ETS
Reproduced by kind permission of the Royal College of Physicians
Extracted from:
Going smoke-free: the medical case for clean air in the home, at work and in public places.
A report on passive smoking by the Tobacco Advisory Group of the Royal College of Physicians. Royal College of Physicians, 2005.