Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club

In the case of Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club, the plaintiff sought damages for injuries sustained as a result of exposure to tobacco smoke while present in the defendant's premises. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendants were negligent in allowing smoking in a manner that resulted in exposure to second-hand smoke, which caused respiratory harm. The defendants contended that the plaintiff's claims were precluded by the rule in Browne v Dunn and that the risk of injury from tobacco smoke was not reasonably foreseeable.

The court was required to determine whether the plaintiff was precluded from putting a case in negligence to the jury, whether there was evidence of a breach of duty, and whether there was evidence that the taking of any step would have eliminated the risk of injury. Additionally, the court had to consider whether there was evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable and whether the rule in Browne v Dunn applied. The court also had to consider the relevant statutory provisions, specifically sections 23(4) and 42(1) of the Factories, Shops & Industries Act 1962.

The court held that the plaintiff was not precluded from putting a case in negligence to the jury and that there was evidence of a breach of duty. The court found that the defendants had failed to take reasonable steps to prevent exposure to tobacco smoke, and that such exposure was reasonably foreseeable. The court held that the rule in Browne v Dunn did not apply, as it related to situations where the plaintiff was aware of the risk and voluntarily exposed themselves to it. The court further held that the statutory provisions did not prevent the plaintiff from pursuing a claim for damages. The court found in favour of the plaintiff and ordered the defendants to pay damages.

The final orders of the court included an order for the defendants to pay the plaintiff $120,000 in damages, along with interest and costs. The court also ordered that the defendants take steps to prevent exposure to tobacco smoke in their premises, including implementing a no-smoking policy and providing warning signs. The court held that the defendants were vicariously liable for the actions of their employees and that they had failed to take reasonable steps to prevent exposure to tobacco smoke.