Shemesh v. Focaccetta

This is an appeal from a decision of the Jerusalem District Court that denied the applicant leave to appeal a Small Claims Court decision. The Supreme Court held that the Restriction of Smoking in Public Places Law does not provide for compensation without proving damage. Noting that it is difficult to prove damage from an incident of smoking and that the statutory breach here impacted a family including children and a pregnant mother, the Court held that there are grounds "for giving a stronger emphasis to the damage, for the purposes of deterrence" and awarded the applicant additional compensation.

Shemesh v. Focaccetta, LCA 9615/05, Israel Supreme Court (2006)

  • Israel
  • Jul 5, 2006
  • Supreme Court Sitting as Court of Civil Appeals
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Parties

Plaintiff Irit Shemesh

Defendant Focaccetta, Ltd.

Legislation Cited

Prevention of Smoking and Exposure in Public Places Act, 1983 (as amended)

Duty of Reporting Health Hazards Caused by the Smoking of Tobacco Products Law, 5761-2000

Restriction of Smoking in Public Places (Affixing Signs) Regulations, 5744-1984

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The Restriction of Smoking in Public Places Law does not contain a provision for awarding compensation without proving damage. But it is very difficult, because of the nature of the case, to prove specific damage from an incident of smoking. In view of the fact that the breach of the statutory duty in this case involved a family with children and a pregnant woman, there are grounds for giving stronger emphasis to the damage, for the purpose of deterrence. The Supreme Court therefore awarded the applicant an additional NIS 1,000 in compensation."
"In our case, the reason for allowing the appeal is the importance of implementing the Restriction of Smoking Law in civil contexts. The Small Claims Court held that the respondent breached the law, and it was not prepared to accept the respondent‘s arguments concerning the separation of its premises into a smoking area and a non-smoking area. The court rightly observed, and this was also accepted by the District Court, that s. 1(a) of the Restriction of Smoking Law prohibits smoking in a restaurant (which is defined in s. 11 of the schedule as a public place), and it imposes liability on the person in possession of the restaurant to display signs that indicate that smoking is prohibited. In order to permit smoking, there is a need for an arrangement that provides a separation, and the smoking area cannot exceed one quarter of the restaurant. These conditions were not satisfied, as can be seen from the record of the Small Claims Court. It is not superfluous to mention that the Restriction of Smoking in Public Places (Affixing Signs) Regulations, 5744-1984, provide that, in restaurants, signs concerning the restriction of smoking should be installed in every room apart from the smoking room, with a minimum amount of one sign for each ten metres of wall length or one sign, whichever is the greater. It should also be stated that Israel has ratified the World Health Organization Framework Convention on Tobacco Control. Article 8(1) of this provides that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability‘; therefore, each member country is required to adopt legislative and administrative measures providing for protection from exposure to tobacco smoke, inter alia in indoor public places."