Ergon Energy Corporation Limited v. Rice-McDonald & Ors
The applicant employer, Ergon Energy, appealed against the decision of the respondents to grant Mr Bathe, its employee, workers compensation for lung cancer caused by passive smoking in the workplace. The applicant appealed on various administrative law grounds, including that the Tribunal below had failed to provide sufficient reasons for its decision and that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have come to it (ie. Wednesbury unreasonableness).
The Supreme Court dismissed the applicant's appeal, upholding the Tribunal's decision that Mr Bathe had suffered an injury in the relevant sense under the statute and that the injury was lung cancer caused by exposure to second-hand smoke in the workplace.
Ergon Energy Corporation Limited v. Rice-McDonald & Ors [2009] QSC 213 (5 August 2009)
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures dealing with criminal and civil liability, including compensation.
(See FCTC Art. 19)
Substantive Issues
None
Type of Tobacco Product
None
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"The Tribunal considers that Mr Bathe definitely had significant passive cigarette smoke exposure. Passive cigarette smoke exposure is an accepted risk for developing lung cancer. The Tribunal notes Mr Bathe himself has never been an active smoker. The Tribunal also notes a possible genetic predisposition to development of lung cancer when exposed to potential carcinogens by virtue of Mr Bathe’s father having lung cancer. The Tribunal also notes exposure to other potential carcinogens in the workplace including carbon tetrachloride, Turco-white solv and transformer oil. The Tribunal cannot discount the possibility of inadvertent ingestion of these materials (carbon tetrachloride, Turco-white solv and transformer oil) during the course of Mr Bathe’s employment and hence some co-contribution from those potential carcinogens in addition to the known carcinogens in cigarette smoke. The Tribunal considers the major carcinogenic exposure was exposure to cigarette smoke in the work environment and considers there may have been other less important carcinogenic exposures to the other substances as described above. The Tribunal notes the possibility that all of the above exposures may have taken on a greater degree of significance by virtue of a possible genetic predisposition to developing lung cancer by virtue of Graham’s father having developed lung cancer. Taking into account the workplace exposures as a whole, the Tribunal is of the opinion that the criteria set out in all of the relevant Acts have been met with regard to injury."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The applicant employer, Ergon Energy, appealed against the decision of the respondents to grant Mr Bathe, its employee, workers compensation for lung cancer caused by passive smoking in the workplace. The applicant appealed on various administrative law grounds, including that the Tribunal below had failed to provide sufficient reasons for its decision and that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have come to it (ie. Wednesbury unreasonableness).
The Supreme Court dismissed the applicant's appeal, upholding the Tribunal's decision that Mr Bathe had suffered an injury in the relevant sense under the statute and that the injury was lung cancer caused by exposure to second-hand smoke in the workplace.