Leonie Cameron v Qantas Airways Limited [1995] FCA 1304;

Leonie Cameron v Qantas Airways Limited [1995] FCA 1304; - FCA 1995 case summary — Zoe

[19]

(1) That the respondent knew, or ought reasonably to have known,

that the smoking of cigarettes and other tobacco products on

board its aircraft was a health hazard in that smoke

circulating in the air in the aircraft could cause or be a

contributing factor in causing detrimental physical effects

(para. 4).

(2) That the respondent knew, or ought reasonably to have known,

that the allocation of seating which was designated smoking

or non-smoking was not effective to prevent cigarette smoke

generated from persons smoking in a designated smoking zone

also being dispersed into the air circulating in the area of

seats designated non-smoking, and that group members,

wherever seated, were exposed to such smoke (paras. 5, 12).

(3) That the respondent has implemented a policy in the

allocation of seating in its aircraft such that ticket

holders or prospective passengers can request to be seated

in a designated non-smoking zone either upon, or prior to,

presenting themselves at the airport for seat allocation

and/or a boarding pass; that, upon making such a request,

group members were informed that they have been, or will be,

allocated a seat designated non-smoking. (In the

alternative) That group members were informed that they

could not be allocated a designated non-smoking seat and

could only be allocated a seat in a designated smoking zone;

and, further, certain passengers receiving a boarding pass

at a later time may be allocated a seat in a non-smoking

zone, even though they did not previously request such a

seat (paras. 6, 10, 11).

(4) That the respondent made representations with respect to the

facts that (a) the passenger will be seated in a seat

designated non-smoking; (b) the seat will be in a designated

non-smoking zone; (c) by occupying the seat the passenger

will not be exposed to cigarette smoke during the flight

(para. 7).

(5) That the group members were misled by these representations,

in that they (a) were not allocated a seat designated

non-smoking for all or part of the flight; (b) were

allocated a seat which, whilst designated non-smoking, was

not in a designated non-smoking zone, but was in a smoking

zone or in a "buffer zone" immediately in front of, behind

or beside a seat in a zone designated for smoking; and (c)

were exposed to cigarette smoke during flight while

occupying the allocated seat (paras. 8, 9).

[177]

"Several different types of advance seating can be requested

for Qantas flights: actual seat numbers can be booked from

availability, 'generic' seating (by location and seat type)

can be requested and, thirdly, actual seat numbers may be

requested. The latter method is used either when a customer

nominates a particular seat number which has already been

allocated to another person, or when a threshold level has

been reached where 50% of seat numbers have already been

pre-allocated.

Examination of your Reservations Record shows that a

'generic' seating request was notated on your booking for

the return sector, which indicated that your preference was

for a window seat in the non-smoking zone.

Our procedure is that 24 hours prior to flight departure,

our Load Controllers complete an editing process, in which

they attempt to pre-allocate all customers who have

indicated their seating preferences. I am sure you can

appreciate that it is not always possible to be completely

successful, due to the popularity of certain types of

seating.

The pre-allocating process means that those seats which are

considered to be the most desirable are often allocated

prior to the opening of check-in for the flight. Once seats

have been pre-assigned, our check-in agents are not able to

make changes to them until the time of flight close-out,

some 30 minutes before departure.

As this 'pre-seating' affects passengers joining and leaving

the aircraft along its route, there is only a limited

selection of seats available at check-in at any particular

airport, even including the first departure airport.

On a heavily laden aircraft the selection is even more

limited and an apparently simple seat request such as

'non-smoking' or 'window seat' can sometimes not be met, because

there are no uncommitted seats of that kind left. I should

also advise that actual seat numbers are allocated on a

'first come, first served' basis and therefore it is

recommended that bookings are made as early as possible."

[217]

"There is an extensive medical literature concerning the

possible health affects of environmental tobacco smoke. I

have personally reviewed the bulk of this material. ... For

otherwise healthy adults it has proven extremely difficult

to show any clinically significant adverse health affects

from prolonged exposure to environmental tobacco smoke. The

one disease for which there remains concern is lung

carcinoma. Although the bulk of cases of lung cancer can be

attributed to active smoking, the fact that cigarette smoke

is a potent carcinogen has led many researchers to consider

the possibility that prolonged exposure to much lower doses

in environmental smoke might also be carcinogenic.

In contrast to the above, it is well documented that perhaps

the bulk of non-smokers find exposure to environmental

tobacco smoke unpleasant and irritating. Typical symptoms

include some watering of the eyes with increased rates of

blinking and soreness and irritation of the throat. These

symptoms are transient and disappear within a matter of

minutes to several hours. A number of studies has shown

that there is no detectable impairment of airway function

following acute exposure to extremely high levels of

environmental tobacco smoke. Indeed, it is controversial

whether chronic exposure to ETS over many years can lead to

any clinically significant decline in lung function in

otherwise healthy individuals.

The situation is possibly different for asthmatic

individuals who are known to be sensitive to a wide range of

non-specific irritants ... Approximately ten scientific

studies have been undertaken to determine whether asthmatics

suffer a significant decline in airway function following

acute exposure to environmental tobacco smoke. Although a

number of these studies reported negative results it is

generally accepted that a minority of asthmatics will

respond to environmental tobacco smoke with a clinically

significant decline in airway function (of 15-20% or more).

However, the same studies show that the effects are

completely reversed within minutes by the use of an asthma

inhaler and that there are no long lasting effects.

Moreover, the effects can be readily prevented by

pre-treatment with an asthma inhaler."

[233]

"Qantas, however, has been continuing to monitor the issue

closely and to pursue opportunities as they present

themselves. We have continued to assess the issue through

our customer feedback process which still indicates that the

smoking issue is low on the list of priorities considered by

customers when deciding which airline to choose. We have

however, had concern on the issue expressed by members of

our cabin crew staff and in consultation with them, we have

been pursuing investigation of actions which can be taken to

lessen the effect of smoking on cabin crew on smoking

flights. The ratio of our non-smoking to smoking seats is

now 12% smoking. As with elsewhere in the community, even

amongst our cabin crew we have a vocal group in support of

smoking and an equally vocal group opposing it.

Nevertheless, your letter on this was timely because at its

11 June meeting, the Qantas Board decided that it would

introduce a no smoking policy in all Qantas workplaces on

the ground in Australia. This will be fully implemented by

1 January 1993, thus allowing a period during which

effective implementation strategies can be developed in each

workplace. Experience has shown that this is essential if

implementation is to be effectively achieved. The Board

also decided that the process of consultation with the

unions covering staff working in the air would continue to

identify measures to alleviate the effects of smoking in the

air in a way that minimises the commercial effects.

Strategies being considered here include engineering

measures as well as identifying whether certain routes could

become smoke free. In negotiations with Air New Zealand, we

are close to reaching agreement for the two companies to

introduce no smoking on Trans Tasman flights. While we have

needed to tread carefully around the Trade Practices

legislation, we are now confident that we can achieve this

outcome for implementation later this year.

The Company believes that every opportunity should be taken

to pursue the elimination of smoking on airline flights on a

bilateral basis. It would be helpful if the Government

could pursue such an approach in international forums such

as ICAO. The issue could also be considered in negotiations

on air services agreements.

The issue of smoking is a complex one and one which elicits

strong views in the protagonists and the opponents. The

Company has been looking closely at the issue and weighing

up the competing interests. As you will appreciate, the

balance at the moment in the competitive airline industry is

very fine. However in this regard we believe our current

position successfully addresses the complicated mix of

factors."

[275]

(i) There was a material inequality of bargaining power between

the respondent and group members in that -

(a) The respondent had control of smoking policies on its

aircraft and was in a position to dictate those to

passengers so that it is not possible for non-smoking

passengers to insist on a smoke-free flight or to be

seated in a "genuine" smoke-free area; yet it is

within the capacity of the respondent to determine that

all flights be non-smoking; and

(b) Where a passenger is told that a non-smoking seat cannot

be allocated (whether or not the passenger had previously

been informed that he or she would be allocated a seat

designated "non-smoking"), the respondent does so in

circumstances which involve "unfair tactics" in not

providing a reasonable opportunity for such passengers to

be allocated a "non-smoking" seat which may later become

available.

(ii) As a result of the respondent's conduct, the group members and

other passengers are required to comply with conditions that

are not reasonably necessary for the protection of the

respondent's legitimate interests in that -

(a) Some passengers are required to accept seating in a seat

designated "smoking" in circumstances in which the

respondent has decided either (i) to permit smoking on

that flight; or (ii) to allocate a number of seats in

the designated "non-smoking" zone which is insufficient

to allow all passengers requesting a "non-smoking" seat

to be allocated a seat in that zone; or

(b) Alternatively, such passengers may be allocated a seat in

a designated "buffer" zone, resulting in exposure to more

smoke than in the case of a "non-smoking" zone, again for

reasons (i) and (ii) above.

(iii) In allocating "non-smoking" or "smoking" seats, the respondent

issues documents signifying that designation, which passengers

do not fully understand, in that those documents do not

disclose that what purports to be a "non-smoking" seat may be

in a "buffer" zone, and thus exposed to smoke from nearby

seats to an extent greater than if the seat were in strictly

"non-smoking" zone.

(iv) It is also "unfair tactics" for the respondents to provide

passengers with assurances as to seating allocation in a

"non-smoking" area knowing (or ought reasonably to know) that

it may not be able to do so.

(v) The respondent unnecessarily exposes passengers to a health

risk which could be avoided by a ban on smoking.

(vi) In each of the above circumstances, the passenger is not

afforded the option of travelling on another "smoke-free"

flight, especially where travel arrangements involve a

"packaged" holiday or travel with relatives or friends.

[369]

"A risk of injury which is quite unlikely to occur ... may

nevertheless be plainly foreseeable. Consequently, when we

speak of a risk of injury as being 'foreseeable' we are not

making any statement as to the probability or improbability

of its occurrence, save that we are implicitly asserting

that the risk is not one that is far-fetched or fanciful.

Although it is true to say that in many cases the greater

the degree of probability of the occurrence of the risk the

more readily it will be perceived to be a risk, it certainly

does not follow that a risk which is unlikely to occur is

not foreseeable.

In deciding whether there has been a breach of the duty of

care the tribunal of fact must first ask itself whether a

reasonable man in the defendant's position would have

foreseen that his conduct involved a risk of injury to the

plaintiff or to a class of persons including the plaintiff.

If the answer be in the affirmative, it is then for the

tribunal of fact to determine what a reasonable man would do

by way of response to the risk. The perception of the

reasonable man's response calls for a consideration of the

magnitude of the risk and the degree of the probability of

its occurrence, along with the expense, difficulty and

inconvenience of taking alleviating action and any other

conflicting responsibilities which the defendant may have.

It is only when these matters are balanced out that the

tribunal of fact can confidently assert what is the standard

of response to be ascribed to the reasonable man placed in

the defendant's position.

The considerations to which I have referred indicate that a

risk of injury which is remote in the sense that it is

extremely unlikely to occur may nevertheless constitute a

foreseeable risk. A risk which is not far-fetched or

fanciful is real and therefore foreseeable. But, as we have

seen, the existence of a foreseeable risk of injury does not

in itself dispose of the question of breach of duty. The

magnitude of the risk and its degree of probability remain

to be considered with other relevant factors."

At a glance

Court

Decision date

Before

Source

Judgment (400 paragraphs)

Leonie Cameron v Qantas Airways Limited [1995] FCA 1304; (1995) Atpr 41-417 (1995) 55 FCR 147 (16 June 1995)

Parties

Legislation Cited (2)

Cases Cited (13)