A bar worker in the UK has launched legal action claiming ill health from the effects of passive smoking in his job.
This type of case has been expected for a while, and is likely to be the first of many if a precedent is set.
My question: what will the likely legal defence be from the breweries (who own most of the pubs in the UK)?
Are they allowed to claim that employees undertook the work knowing the risks (is that a defence in law)? Or will they dispute the link between passive smoking and ill health (has this been established in law yet)?
FWIW - There is a cable television show here called Bullshit that ran a story last year saying the only study linking passive smoke to cancer is known to be flawed and in fact, if you read the study carefully, the data do not support the conclusion. So I would think the defense would certainly attack the basic premise of the suit and demand proof that passive smoke is the cause of the health problems.
I saw that show and it struck me that they only considered cancer. They didn’t mention that there might be other ill effects from second hand smoke. Their conclusion that second hand smoke has not been proven to cause cancer cannot be taken to mean that it is harmless.
I am a data analyst for the government and about 3 years ago I attended a seminar featuring a British statistician. In explaining how statistics can be misinterpreted he mentioned “passive smoking” as the worst validated science that he had ever seen.
One example was a study that showed that X% of non-smokers subject to smoke suffered ill-effects. Well the non-smokers tested were the spouses of smokers (because they would suffer passive smoke) who were not asked if they had ever smoked (80%?? had). No allowance was made for the fact that they ate the same diet as their smoking spouses. The research didn’t allow for the fact that neither partner exercised regularly.
Sounds like that show needs to do a segment on itself.
There is not “one study liking passive smoke to cancer”. There have been over 50 studies done, many of them quite well-designed and most of them showing a link to cancer.
I agree that the defense lawyers will use this argument, just as they have all along, but let’s not turn this into a forum for tobacco-industry BS.
It’s actually funny to look back: originally the tobacco companies used the argument that “smoking is not proven to cause health problems”, even after it was obvious to everyone that it did. Now they defend themselves from smokers’ lawsuits by saying “they knew the risks they were taking, and made the choice to smoke anyway.”
(A) Yes. It is known as assumption of risk, which appears to me to be a pretty good defense here. Anyone who works in a bar and isn’t aware of the publicity concerning the risks of second-hand smoke is an idiot.
(B) Damn right, they will. Hell, the tobacco industry in the USA disputed the link between active smoking and ill health even though they knew otherwise, had facts disclosing otherwise, and hid those facts from the public.
I believe the assumption of risk defense is a greater defense than in America’s tobacco suit, since smokers claimed that they were “hooked,” and couldn’t get off the habit. Those working around second-hand smoke could just walk away from that job. (The main reason the tobacco companies lost in America was their active fraud.)
How does the employer’s duty of care fit with the assumption of risk?
I was under the impression it wasn’t always enough for the employer to say “the employee knew it was a dangerous job” as a defence against work-related injury?
FWIW the ban on smoking in bars here in California was passed as an occuptional health item by CalOSHA, due to increased cancer in non-smoking bar employees. They looked at the actual rates and it was much higher than for other workers with the same risk factors.
Getting cancer is not an injury, but a serious illness. Where was the employer’s negligence? What duty of care did the employer breach? Working in a bar is not dangerous in itself. One is not likely to get injured unless he is a bouncer. It is possible to get ill due to the polluted atmosphere, but the employee knew that.
I don’t know if there are cases on this and I’m not going to hunt for one. The OP asked if assumption of risk is a viable defense, and it is.
I 've heard of this show, I also heard that its not that credible. I think they are self- deluding to reject a link between second hand smoke and cancer.
If she was still alive you could have asked Heather Crowe. She was in an identical situation. " A non-smoker, Crowe was diagnosed with inoperable lung cancer last year. Her death sentence follows 40 years of working in restaurants and bars. The Ottawa resident never smoked a cigarette in her life. She never lived with smokers."
As for the question, If I were the defence I would argue that the risks were generally known by the staff and that they were compensated for that risk. Then there will be a general ban on smoking in public places as it is becomming in many juristrictions around the world.
That sounds like plenty conclusive evidence of a health risk, no matter what doubt you want to cast on second hand smoke cancer risks. Whatever way you cut it, a smoke filled work environment isn’t healthy. And I don’t know about US employment legislation, but no employer in the UK or EC would get very far with a “they knew the risks” argument in court. It’s up to the employer to minimise the risks, not just identify them.
I am not sure I follow your first couple of sentences. By your reasoning asbestosis is only a illness, not a injury. Working in a mine is not dangerous in itself …etc. How could absetsos manufacturers ever get sued?
As to whether the employee knew - as the dangers of passive smoking is still debateable, it is quite possible that the employee did not realise the real levels of danger (if such dangers are actually real)