Sharp v. Guinery t/as Port Kembla Hotel & Anor

The plaintiff had been a bartender at the defendants' hotel for over 20 years until she was diagnosed with cancer of the mouth, throat and neck. She alleged that her employers had breached their common law duty of care by exposing her to tobacco smoke and noxious tobacco fumes in the workplace; for failing to provide adequate ventilation; for requiring her to work in enclosed areas where smoke was concentrated; and for failing to implement an efficient system for expelling air containing tobacco smoke. She also claimed that the second defendant had breached its statutory duty pursuant to the Factories, Shops & Industries Act 1962 to ensure workrooms had sufficient air supply and did not have stagnant or vitiated air.

This was a procedural decision as to whether certain of the plaintiff's claims could be put before a jury; in particular, whether the plaintiff had adduced sufficient evidence of a breach of duty and whether she had sufficiently articulated mitigating measures which the defendants could have taken to avert the risk to her health. The Court ruled in the plaintiff's favour and allowed these matters to go to trial by jury.

Subsequent to this decision, the plaintiff settled out of court with the first defendant. Her case against the second defendant proceeded to trial by jury where she was again successful and was awarded $466 048 in damages (less the amount of her settlement with the first defendant).


Sharp v. Stephen Guinery t/as Port Kembla Hotel and Port Kembla RSL Club [2001] NSWSC 336 (23 April 2001)

  • Australia
  • Apr 23, 2001
  • New South Wales Supreme Court


Plaintiff Marlene Sharp


  • Port Kembla RSL Club
  • Stephen Guinery t/as Port Kembla Hotel

Legislation Cited

Factories, Shops & Industries Act 1982

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product