Australia

The applicant alleged that she had suffered damage as a result of being exposed to environmental tobacco smoke on an international flight operated by Qantas Airways. She brought the claim in a personal capacity and on behalf of 9 other group members, all of whom had allegedly suffered damage from environmental tobacco smoke on various Qantas international flights. Mrs Cameron had initially brought the claim on behalf of a much larger group, but narrowed the claim following an order that the original statement of claim was not properly pleaded (see: Cameron v Qantas Airways Limited [1993] FCA 328; ATPR 41-251 (14 July 1993)).

The applicant alleged that Qantas had engaged in unconscionable conduct in contravention of s51AA(1) of the Trade Practices Act (formerly s52(A)); alternatively, misleading or deceptive conduct in contravention of s52 of the Act. The applicant further alleged that the group members had suffered loss and damage as a result of Qantas's negligence. The conduct complained of was permitting smoking on aircraft where non-smoking seats were not available and/or were not effective, in circumstances where Qantas knew or ought reasonably to have known that environmental tobacco smoke was a health hazard.

The Court found that the allegation of unconscionable conduct had not been made out, because the necessary feature of some kind of exploitation or manipulation by Qantas of the group members was not present. The Court upheld the claim of misleading or deceptive conduct in respect of those group members who had been promised a non-smoking seat but given a smoking seat, but not on behalf of those group members who had been given a non-smoking seat but who had complained of smoke drifting from the smoking areas.

However, the Court upheld the allegations of negligence on behalf of all the group members. Beaumont J found that Qantas breached a duty of care to the group members to warn them of the risk that, although they might be allocated a seat in a non-smoking area of the plane, it was nonetheless still possible that smoke might drift from other smoking areas. If such a warning had been given, passengers would have had the option of taking medications prior to the flight, or choosing a smoke-free flight on another airline. Beaumont J accordingly ordered that Qantas pay each group member damages (although the quantum of those damages was very small in all cases).

Given that the outcome of this case was mixed, Beaumont J made no order as to costs, but gave the parties liberty to apply for further orders. (As to costs, see: Qantas Airways Ltd v Cameron [1996] FCA 765 (30 August 1996)).