Rae v. Strathclyde Joint Police Board

Agnes Rae was passively exposed to cigarette smoke as a civilian employee at the Wishaw Police office during 1979 to 1994. She became ill as a result of this exposure. The Strathclyde Regional Council were the largest employer in Scotland at the time of this matter, and employed their own Occupational Health Department.

In 1999, Rae sued the Strathclyde Joint Police Board (the Board) for damages for illness caused by her passive exposure to cigarette smoke at work between 1979 and 1994. She sued both in negligence and under s 7(1) of the Offices, Shops and Railway Premises Act 1963 (the Act), which stated that:

“Effective and suitable provision shall be made for securing and maintaining by the circulation of adequate supplies of fresh or artificially purified air, the ventilation of every room comprised in or constituting premises to which this Act applies, being a room in which persons are employed to work”

The Board argued that Rae had not provided adequate averments of fact in respect of two key questions. First, in relation to the negligence claim, she had not provided sufficient averments of fact to support the inference that her illness was a reasonably foreseeable consequence of passive smoking in the workplace at the time of her employment, nor had she provided sufficient averments to establish a basis for the Board’s duty to prevent the risks of passive smoking. Second, in relation to the statutory claim, she had not stated adequately what the Board should have done to ventilate her workplace against tobacco smoke as required by the Act. In the alternative, the Board sought to exclude Rae’s evidence that she had not previously been passively exposed to tobacco smoke, on the basis that the statement was too vague and did not give adequate notice of her case.

Rae adduced evidence of the following events to prove that there was increasing public awareness of the risk of passive smoking during her employment:

• In 1983, the Royal College of Physicians commented upon the adverse social consequences of passive smoking exposure.
• A May 1985 Government Policy stated that smoke-free environments should be provided to staff members.
• A 1986 World Health Assembly resolution stated that “passive, enforced or involuntary smoking violates the right to health of non-smokers”
• The 1988 Health and Safety Executive issued booklet “Passive Smoking at Work” urging employers to limit passive smoking in an employment environment.

The Court held that Rae had provided sufficient averments of fact to support the inference that the risks of passive smoking were foreseeable. The Board had argued that events prior to the 1988 booklet could not support Rae’s claim that the Board would have foreseen the risks of passive smoking, on the grounds that they were not known to the Board at that time, and therefore not relevant in proving a duty to prevent the risks of smoking. They also argued that Rae had not provided a basis for the duty given that knowledge of the risks of smoking was evolving at the time, and that given the likely difficulties of implementing policy in relation to workplace smoking, Rae had not indicated the measures that could have reasonably been taken to mitigate the risks at each of these stages of evolution. The Court rejected these arguments. Although the Court acknowledged the importance of avoiding reliance on the “wisdom of hindsight”, it considered that taken as a whole, the events demonstrated an increasing awareness of the risks of smoking between 1979 and 1989. The earlier events could therefore be said to be relevant to Rae’s case, and should be allowed to be included in her pleadings. Additionally, the Court considered that there were a number of simple and inexpensive measures that could have been taken by the Board to prevent the risks of passive smoking, and that whether or not it was reasonable to take those measures was a question that should go to trial on the evidence.

The Court also considered that Rae should be allowed to lead evidence on what the Board should have done to ventilate her workplace as required by the Act. The Board had argued that Rae had admitted the ineffectiveness of suggestions to open windows or mechanically vent the rooms, and should not now be allowed to rely on them as averments of what the Board could have done. However, the Court considered that this did not affect Rae’s claim that the Act required some action by the Board to ventilate the room, and that the Board had done nothing. The effectiveness of the suggested method was a question to be determined on the full evidence.

Finally, the Court rejected the Board’s challenge to Rae’s claims that she had not been exposed to smoke elsewhere, stating that it had always been known to the Defendants that Rae would argue that she had not been exposed to passive smoke anywhere other than the Defendant’s offices. She was therefore not required to provide specifics on each of the workplaces where she had not been exposed to smoke.

“The absence of averments in the present case that certain precautions were adopted by other employers simply demonstrates that the pursuer does not found her case on the practice of others. It does not, however, follow that there must be averments of folly or stupidity on the part of the defenders before there can be a relevant case. In my opinion the question will always be whether there are averments that the precautions desiderated are precautions a reasonable and prudent employer would have adopted in the particular circumstances of the pursuer's employment and that the defenders failed to do so.”

“The pursuer now specifically avers that no steps were taken to ensure that naturally fresh air nor artificially purified air freshened the air in the work room. While the particular circumstances in the pursuer's work room may have differed from time to time throughout the period of the claim, and while what particular steps were necessary might have varied throughout the period of the claim depending upon the evidence led, that does not seem to me to alter the pursuer's case that throughout the period action was necessary to secure and maintain the ventilation of her workplace and no action was taken.”

“When I considered the matter before, I was of the opinion that adequate notice of the areas in which the pursuer might have been exposed to smoke was given in Article 3 and that the extent of her exposure and whether that materially contributed to her illness were matters for evidence. I was not persuaded then, and I am not persuaded now, that the averment that she has not been exposed to tobacco smoke on a regular basis in any previous employment was so lacking in specification as not to give fair notice of her case. If the defenders had submitted to me that in spite of efforts made over the past 21 months or so they had been unable to identify the pursuer's previous employers and were thus prejudiced in their conduct of the case, then I might have begun to see some justification for the submission. However, the defenders have long had notice that the pursuer intends to demonstrate that neither at work nor in her domestic and social life has she been exposed to any material extent to the adverse effects of the smoking of others, and the defenders accordingly have notice of the areas to be investigated.”