Personal injury advice from
Thompsons Solicitors
Going Smoke Free
Note - The following was written before new laws were introduced across the UK, banning smoking in almost all workplaces and enclosed spaces. See our page on passive smoking for full, up to date information about making a personal injury claim.
There is substantial evidence to prove that Environmental Tobacco Smoke (ETS) exposure is harmful. This raises important questions as to the legal rights and responsibilities of the public as well as employees and employers in relation to limiting or preventing ETS exposure.
Currently, there is no legislation or decided case law to protect employees from hazardous workplace exposures. The argument is that ETS exposure does not arise from manufacturing or other processes that are fundamental to the work(place) itself, but from smoking by other staff, customers or visitors.
Until legislation is introduced that creates a duty upon employers to protect staff from ETS exposure in the workplace 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.
1. What does a claimant need to prove?
2. What evidence is required in practice?
3. Progress with UK legal cases to date
4. Experience of legal cases outside the UK
5. Levels of compensation
6. The future for smoking at work
1. What does a claimant need to prove?
To succeed in a claim for compensation in a UK court, a claimant needs to provide 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 also be brought in time (Limitation)
Full details of each of these elements can be found in chapter 8 (Going Smoke Free) of the John Hall article (a report on passive smoking by the Tobacco Advisory Group of the Royal College of Physicians. Royal College of Physicians, 2005).
2. What evidence is required in practice?
Individuals who seek to claim compensation need to demonstrate the following:
• That the employers knew, or should reasonably have known, that ETS exposure (often known as passive smoking or second hand smoke) 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 many years, so recent developments and reports may be of limited assistance.
• 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.
• 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 the consideration by medical experts. It may be sufficient to prove 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.
3. Progress with UK legal cases to date
There have been six notable cases to date in which individuals have claimed compensation for damage caused by ETS exposure at work:
• Veronica Bland
• Beryl Roe
• Agnes Rae
• Sylvia Sparrow
• Mickey Dunn
Full details of each of these cases can be found in chapter 8 (Going Smoke Free) of the John Hall article.
4. Experience of legal cases outside the UK
Several case of claims for compensation have progressed in other countries:
• Owen Brown (Australia)
• Marlene Sharp (Australia)
• Norma Broin (USA)
• Heather Crowe (Canada)
Full details of each of these elements can be found in chapter 8 (Going Smoke Free) of the John Hall article.
5. Levels of compensation
Effectively, a 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.
General Damage:
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 vicinity of £40,000 – £50,000.
Temporary aggravation of bronchitis or other respiratory problems resolving within a few months would provide damages in the region of £1000-£2,500.
Special Damage:
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.
6. The future for smoking at work
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 of 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, chapter 8 (Going Smoke Free) of the John Hall article (a report on passive smoking by the Tobacco Advisory Group of the Royal College of Physicians. Royal College of Physicians, 2005) for more information.
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.
The Health Act 2006 will ban smoking in virtually all workplaces in England (separate measures apply to Wales and Northern Ireland) and will be implemented in June 2007. Scotland’s smoking ban in public places has been in force since March 2006.
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.
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