Malone Engineering Products Ltd. v. Health Service Executive

The plaintiff, the designer and manufacturer of “Freshwall” modular smoking rooms or structures, sought a declaration that its product was exempt from the indoor smoking ban because it qualified as an outdoor premises where no more than 50% of the perimeter is surrounded by one or more walls.  The Freshwall structure is a specially designed four-sided, fully-roofed room composed of a series of panels which are 50% open. The court concluded that a Freshwall structure is not “outdoor” and the panels qualify as “walls” creating a continuous structure.  Therefore, the structures were not exempt from the indoor smoking ban.

Malone Engineering Products Limited v. Health Service Executive, [2006] IEHC 307, High Court (2006).

  • Ireland
  • Jul 21, 2006
  • High Court
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Parties

Plaintiff Malone Engineering Products Ltd.

Defendant Health Service Executive

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

None

Type of Tobacco Product

None

"First of all, it doesn't seem to me that this structure is outdoor; that it is, in very common sense, indoor. As I said, even going to the very basic point about having doors to get into a structure, it is called a structure in the pleadings, it is called a structure, it is called an indoor structure. The 50% panelling thing has got to be considered in two ways: First of all, is it, in fact, 50% panelling if you have fixtures to it? And then I am asked, well, I shouldn't really have to deal with the structures, and then we are away from the factual matrix and into what I said it seems to me that the court cannot deal with, but I have also got to consider the ventilating evidence that was given and the evidence that there was a baffling effect caused by the particular design of the structure. This is clearly in the promotional literature. Dr. Potter mentioned it and I think Mr. Buckley agreed that, clearly, the positioning of the particular panels was such as to at least reduce the harshest weather conditions; at most, to provide an indoor atmosphere. But even if I were to consider dealing with the declaration in relation to a structure other than the Kinsealy Inn, which clearly does not have 50% of air space and 50 percent of solid because of the -- because of the fixtures and fittings there to because of the positioning of the counter, the mirror, the radiators, even if I were to go and deal with the structure in abstract, which I said doesn't seem to me that the court can or should do, that it does seem to me that, on the common understanding of the words of 'outdoor', the common understanding of 'perimeter', the common understanding particularly of 'walls', that this is a wall, it presents as a wall and it presents as, indeed, a continuous structure, and that it does seem to me that, in dealing with the concept of having air coming in, albeit it baffled or muffled as it does come in, which, of course, does seem to me to actually reduce the airflow, not that that, as I said, is the criteria to be used, that it does seem to me that it is a wall and that it is outdoor. Finally, I should add that the section in the act does not -- the subsection in the act does not require the court to deal, in fact, with the areas, nor indeed with volume, and, because of that, then, the question of ventilation really doesn't arise. I mean, it may be a promotional matter, it may not be, but it doesn't seem to me that it is a matter which arises for the purpose of the interpretation of the section."