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B v. Waitemata District Health Board [New Zealand] [June 14, 2017]

Information about this decision coming soon. 

Cancer Society of New Zealand v. Ministry of Health [New Zealand] [September 30, 2013]

The New Zealand Ministry of Health inspected a portion of a casino complex and determined that it constituted an “open area” under the Smoke-free Environments Act. The Cancer Society of New Zealand and other organizations disagreed with the Ministry’s interpretation and asked the Court to review the issue. The Court found that the Ministry’s enforcement agents improperly relied on an “Open Areas Calculator” (a mathematical tool) in determining whether the space was substantially enclosed. The Court found that the Open Areas Calculator was inconsistent with the definition of an “open area” in the law. The Court ordered the Ministry to reconsider whether the area of the casino could allow smoking under the law. 

B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Taylor v. Attorney General & Ors [New Zealand] [July 03, 2013]

This was the second case brought by Taylor, a prisoner, against smoking bans in prisons in New Zealand (see also: Taylor v Dept. of Corrections of New Zealand [20 December 2012]). Following the first case, the New Zealand Parliament enacted the Corrections Amendment Regulations, which declared tobacco and smoking equipment to be unauthorized items forbidden to inmates. The Parliament also amended other Regulations which were found to be inconsistent with the smoking ban in the first case. However, the Parliament did not amend the section of the Smoke-free Environments Act which required prison managers to have written policies regulating smoking in cells, which the judge in the first case found implied that smoking must be permissible (otherwise there would be no need to regulate it). Again, the Court found that although the Smoke-free Environments Act did not confer a right to smoke, it recognized that there was such a right. Further, the ban was inconsistent with the provisions of the Corrections Act requiring sentences to be administered humanely, because it would force some prisoners into nicotine withdrawal. The Court therefore declared the legislation effecting the ban to be unlawful, invalid and of no effect. However, when the Parliament passed the new Regulations, it also included ouster provisions purporting to prevent the law from being declared invalid. The Court did not rule on the effect of the ouster provisions because the plaintiff had not claimed any relief.

Taylor v. Manager of Auckland Prison [New Zealand] [December 20, 2012]

In June 2011 the manager of the Auckland Prison implemented a Rule proposed by the Chief Executive of the New Zealand Department of Corrections that banned smoking of tobacco or any other substance anywhere on prison grounds.  A prisoner challenged the Rule, claiming that the manager did not have the power pursuant to the Corrections Act to impose a total ban on smoking; and, even if he did, he did not properly exercise his discretion.  The Court agreed with the prisoner that the Rule was inconsistent with other legislation, particularly the Smoke-free Environments Act which required prison managers to have a written policy relating to smoking in cells. The Court found that it was Parliament’s intention to have smoking in prisons regulated by the Smoke-free Environments Act, not the Corrections Act. The Court therefore declared the Rule to be unlawful, invalid and of no effect. The New Zealand Parliament subsequently passed new and amending Regulations seeking to circumvent this decision. The High Court again ruled that those laws were invalid (see: Taylor v Attorney General & Ors [3 July 2013]).

Progressive Meats Limited v. Ministry of Health [New Zealand] [April 22, 2008]

Progressive Meats was charged with an offence for infringing s5(1) of the Smoke-free Environments Act 1990 which requires employers to take all reasonably practicable steps to ensure there is no smoking in the workplace. The District Court found that Progressive Meats had infringed s5(1) by establishing a designated smoking room for its employees who were smokers. Prior to entering a conviction it asked the High Court to rule on the question of whether the smoking room came within the definition of "workplace" in the Act. The High Court answered that question "yes" (see: Progressive Meats Limited v Ministry of Health (20 September 2006). This case was an appeal against that decision.

Progressive Meats had established the designated smoking room because, following a change in the law relating to hygiene requirements, employees could no longer go outside during their breaks to smoke and were therefore unable to smoke during their shifts.

As it had in the Courts below, Progressive Meats argued for a narrow construction of the term "workplace", because, it said, the purpose of the law was to ensure that non-smokers were not affected by second-hand smoke and the smoking room it had constructed met that objective. However, the Court of Appeal agreed with the District Court and the High Court that the smoking room fell within the definition of "workplace". The language was plain. The Court also had regard to Parliament's intention as set out in the report of the Select Committee who had considered the preliminary draft of the Bill; in particular, the Select Committee had expressly considered and rejected an exception for designated smoking places.

Lal v. Ministry of Health [New Zealand] [April 30, 2007]

This was the hearing of Mr Lal's appeal against his conviction for selling two packets of Gutkha to an employee of the Ministry of Health in contravention of s29(2) of the Smoke-free Environments Act 1990 (s29(2) prohibits the import, sale and distribution of chewing tobacco and other tobacco products for oral use other than smoking).

Mr Lal appealed, amongst other things, on the basis that there was no evidence at the trial that Gutkha was a chewing tobacco.

Andrews J dismissed the appeal, referring to expert evidence that Gutkha contained nicotine, that the nicotine was from tobacco, and that Gutkha is known in India as tobacco suitable for chewing.

Simm v. Accident Compensation Commission [New Zealand] [December 20, 2006]

The appellant was denied cover for lung cancer caused by passive smoking in the workplace under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act"). The insurer denied cover because, although the 2001 Act provided cover for this type of claim, the previous Act specifically excluded it, and the 2001 Act's transitional provisions required the injury to have also been compensable under the previous Act.

In the lower Court, Ongley J upheld the insurer's decison to deny coverage (see: Simm v. Accident Compensation Commission [2005] NZACC 33 (1 February 2005)). This was an appeal from Ongley J's decision.

The High Court rejected the appeal, agreeing with Ongley J that the exlcusion was clear on the face of the legislation.

Progressive Meats Limited v. Ministry of Health [New Zealand] [September 28, 2006]

Progressive Meats was charged with an offence for infringing s5(1) of the Smoke-free Environments Act 1990 which requires employers to take all reasonably practicable steps to ensure there is no smoking in the workplace. This was an appeal against a District Court decision that Progressive Meats had infringed s5(1) in relation to a smoking room it had set up in its meat processing plant. Prior to entering a conviction, the Judge stated a case for the High Court. The question was whether the smoking room came within the definition of "workplace" in the Act.

The majority of Progressive Meats' employees were smokers. Prior to a change in the law relating to the hygiene requirements of the plant, the smokers were able to smoke outside during their breaks. However, the changes in the hygiene requirements made it impossible for smokers to go outside during their breaks, because the cleaning and changing of clothes required to do so would take up all of their available time. To get around the problem Progressive Meats set up a separate smoking room which was constructed to ensure that none of the smoke generated would in any way affect the health of any other worker.

In the District Court decision below, the Judge found that while the smoking room was not an actual core part of the workplace it fell within the extended definition of "workplace", being a common internal area forming part of a workplace. While the smoking room was ancillary, it was just as important for the undertaking of the core business as other facilities such as toilets and stairwells.

In the High Court, Progressive Meats argued for an interpretation of "workplace" which recognised that it was complying with the spirit of the law. The Court rejected this argument because it would have allowed smoking to a greater extent than the wording of the Act allowed. The Court said there was no basis for reading down the Act - if the Act had unfortunate consequences, it was a matter for Parliament to address by amending the legislation. The Court therefore answered the stated question "yes".

This decision was subsequently appealed and upheld by the Court of Appeal (see: Progressive Meats Limited v Ministry of Health (22 April 2008)).

Pou v. British American Tobacco (New Zealand) Limited & Anor [New Zealand] [May 03, 2006]

Pou instituted these proceedings in June 2002 after being diagnosed with lung cancer. She died in September 2002 at age 52. Pou had been a heavy smoker since she was 17 years old. Pou’s children continued the case after her death as executors of her estate.

Pou alleged that she started smoking in 1968 because she was exposed to advertisements that glamourized cigarettes, promoted by the defendant companies. She alleged that the defendants knew or ought reasonably to have known, prior to 1968, that cigarettes were addictive and caused serious illness. Pou claimed that the defendants breached their duty of care to warn her that she might become addicted and/or that she might suffer injury if she continued to smoke; alternatively, they breached their duty of care to stop manufacturing and supplying cigarettes when they knew or should have known that they were dangerous.

New Zealand’s High Court rejected Pou’s case on several grounds: the Court found that there has never been a duty on a cigarette manufacturer to cease manufacture and distribution and there is no basis for such a duty; further, even if there was a duty to warn, the dangers inherent in smoking were common knowledge in 1968 when Pou started smoking; further, even if there was a duty to warn, Pou failed to establish that she would not have begun/continued to smoke if the warning had been given; and further, even if Pou was not aware of the risks of smoking in 1968 she must have been aware of those risks by 1974 and thereafter she elected to keep smoking and did not take steps to quit although she was able to do so.

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