Sharp v Stephen Guinery t/as Port Kembla Hotel & Port Kembla RSL Club [2001] NSWSC 336

Sharp v Stephen Guinery t/as Port Kembla Hotel & Port Kembla RSL Club [2001] NSWSC 336

The second defendant was not entitled to a directed verdict on the common law negligence count because the pleadings and opening sufficiently raised exposure to tobacco smoke and possible protective measures, the rule in Browne v Dunn did not apply to bar the case, and there was evidence from which the jury could find foreseeable risk and practicable measures such as banning smoking in all or part of the club or constantly operating exhaust fans. The s 23(4) statutory duty case could proceed because the jury could find the air was vitiated or stagnant, but the s 41(2) count failed because tobacco smoke from patrons and guests was not generated by any relevant process carried on in the...

Jurisdiction
Australia
Judgment Date
23 April 2001
Procedural Posture
Common Law Negligence and Breach of Statutory Duty Action / Application by Second Defendant for Verdict by Direction at the Close of Evidence
Outcome
The second defendant's application for verdict by direction failed as to the common law count, succeeded as to the statutory count based on s 41(2) of the Factories, Shops & Industries Act 1962, and the plaintiff was permitted to seek verdicts for past and future loss flowing from any negligence.
Legal Topics
['exposure to Tobacco Smoke at Work' 'employer/occupier Duty of Care' 'directed Verdict' 'browne V Dunn' 'factories, Shops & Industries Act 1962' 'past and Future Economic Loss']
['torts' 'negligence' 'workplace Safety' 'statutory Duty' 'civil Procedure'] ['exposure to Tobacco Smoke at Work' 'employer/occupier Duty of Care' 'directed Verdict' 'browne V Dunn' 'factories, Shops & Industries Act 1962' 'past and Future Economic Loss']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Negligence and Breach of Statutory Duty Action / Application by Second Defendant for Verdict by Direction at the Close of Evidence

Legal Issues

  1. 1 ["Whether the plaintiff was precluded from putting a common law negligence case to the jury because she had not expressly particularised the remedy for breach or put the case to the second defendant's witnesses." 'Whether there was evidence of breach of duty by the second defendant.' 'Whether there was evidence that steps such as banning smoking, limiting smoking areas, or operating exhaust fans could have eliminated or reduced the risk of injury.' 'Whether the rule in Browne v Dunn prevented the common law count going to the jury.' 'Whether there was evidence of breach of s 23(4) of the Factories, Shops & Industries Act 1962.' 'Whether s 41(2) of the Factories, Shops & Industries Act 1962 applied to tobacco smoke generated by patrons and guests.' 'Whether the plaintiff could seek damages for past and future economic loss.']

Ratio Decidendi

The second defendant was not entitled to a directed verdict on the common law negligence count because the pleadings and opening sufficiently raised exposure to tobacco smoke and possible protective measures, the rule in Browne v Dunn did not apply to bar the case, and there was evidence from which the jury could find foreseeable risk and practicable measures such as banning smoking in all or part of the club or constantly operating exhaust fans. The s 23(4) statutory duty case could proceed because the jury could find the air was vitiated or stagnant, but the s 41(2) count failed because tobacco smoke from patrons and guests was not generated by any relevant process carried on in the...

Court Disposition

The second defendant's application for verdict by direction failed as to the common law count, succeeded as to the statutory count based on s 41(2) of the Factories, Shops & Industries Act 1962, and the plaintiff was permitted to seek verdicts for past and future loss flowing from any negligence.

Orders

  • ['The application by the second defendant fails with respect to the challenge to the common law count.' 'The application succeeds in relation to the statutory count based on s 41(2) of the Act.' 'The plaintiff is entitled to seek a verdict from the jury for any past loss occasioned by the negligence of the second...