7 Mar 2012Smokers are a diminishing breed. Smoking accounts for 5,000 deaths a year in NSW. Smokers now make up just 16 per cent of the Australian population. Smokers are under siege as new laws are about to come in, further restricting the places they can light up.
In a few months the NSW government will pass laws banning smoking in shared public places such as playgrounds, parks, bus stops, taxi ranks, entrances to public buildings and sports grounds. In 2015 the ban will extend to commercial outdoor dining areas.
The head of the NSW Heart Foundation, Tony Thirlwell, said the law will help protect non-smokers. “There is no safe level of exposure to second hand smoke,” he said. “Evidence shows that a non-smoker’s exposure to second-hand smoke can result in a 30 per cent increase in risk of heart disease.”
Smoking is already banned in the workplace and shared enclosed spaces, but the next battle is going to be the home. Pressure is growing on the government to toughen rights of people not to have smoke drift into their homes from smoking neighbours.
No law bans smoking in your own home, unless it is a condition of tenancy. Strata managers can ban smoking on the premises. The question is whether that includes a balcony in a block of flats or nearby house.
Under the law, landlords and strata managers are obliged to prevent anything that interferes with the comfort, privacy and peace of a tenant. There are no laws dealing specifically with cigarette smoke drifting through your window or balcony from a neighbor. (For more information please see Smoking on balconies and the law.)
This may soon be tested in the courts. The law of trespass, public nuisance and strict liability could be used to obtain damages if there is a persistent breach.
A Sydney lawyer and champion surf skier who never smoked found smoke constantly drifted into his flat from chain smokers puffing on their balcony below. It was affecting his breathing and he asked them to stop. They refused. He unsuccessfully asked the body corporate, strata managers and tenancy tribunal to get them to stop.
A doctor monitored his condition. After 18 months he moved home. He was later diagnosed with lung cancer probably caused by second hand smoke. He lost a third of his right lung. He is now planning to sue the smokers as well as the body corporate and strata managers.
It could open a flood of claims similar to successful workers compensation claims for passive smoking. Lawyers advise to carefully document efforts to clear the air, keep a log of smoke and how it affects you, obtain medical reports and inform strata managers and body corporates of the dangers of passive smoking.
