Unless otherwise indicated, the reference for this section is Everingham and Woodward,(13) which provides full transcripts of the judgement as well as commentary.
On 7 February 1991, Justice Morling of the Federal Court of Australia handed down the findings on the lengthy court case between the Australian Federation of Consumer Organisations (AFCO) and the Tobacco Institute of Australia (TIA). Justice Morling found that the TIA, in publishing a particular advertisement stating its views on passive smoking, had engaged in misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974. The Court duly issued an injunction restraining the TIA from republishing the offending advertisement, or publicly restating its sentiments. Justice Morling's decision is the first authority of an Australian Superior Court dealing directly with the health effects of passive smoking. (In October 1990 the District Court of the Hague issued an interim judgement that the Dutch Foundation on Smoking and Health ('Stivoro') was justified in publishing its view that passive smoking is damaging to health, after which the tobacco industry dropped their lawsuit(14)).
During 1986 the TIA, the lobbying organisation representing the interests of the tobacco companies operational in Australia, lodged a series of advertisements in major daily newspapers. The theme of the advertisements was passive smoking, and the advertisements sought in various ways to persuade the public that passive smoking was not a health problem.
One of these advertisements, lodged in 14 newspapers on 1 July 1986 claimed among other things, that 'there is little evidence and nothing which proves scientifically that cigarette smoking causes disease in non-smokers.' The advertisement argued that while tobacco smoke could be an annoyance, it posed no health risks, and in support of its contention used the names of three major health agencies -- the World Health Organization, the Institute of Cancer Research in the UK, and the American Cancer Society. The advertisement also claimed that a particular article entitled 'Relationship of passive smoking to risk of cancer and other smoking-associated diseases' by Lee, Chamberlain and Alderson, supported the Institute view and was based on research involving a sample of 12,000.
Dr Paul Magnus of the National Heart Foundation of Australia wrote to Lee, Chamberlain and Alderson and asked whether it was true that their research study used 12,000 individuals. On behalf of his co-authors, PN Lee, a known tobacco industry consultant, replied it was not, and said for common understanding the research involved 'about 700'.(15)
Each of the three organisations mentioned in the advertisement responded promptly with strong denials of their support for the TIA's view, and accusations of distortion and misrepresentation of their opinions on the health effects of passive smoking. The TIA's use of the article by Lee et al was also criticised, in that the article's conclusions about passive smoking were based on a sample of around 700 people, not 12,000.
The Australian Council on Smoking and Health (ACOSH) formally objected to the Advertising Standards Council (ASC) about the misleading nature of the advertisement, but although the ASC upheld ACOSH's complaint, it is not empowered to take punitive action other than to request that an advertisement be withdrawn, or disallowed from future publication by its member organisations.
The peak policy body for the consumer movement, the Australian Federation of Consumer Organisations (AFCO) took a different approach, by instituting proceedings under the Trade Practices Act. This Act (among other things) prohibits misleading and deceptive advertising. Their first attempt brought about a ruling by the Trade Practices Commission (the body empowered with administering the Act) that the Act had been breached, that the TIA should not republish the offending advertisement, and should publish corrective copy. However AFCO sought stronger guarantees that future statements by the TIA on passive smoking would not intend to mislead in the same way, and so instituted proceedings in the Federal Court of Australia to seek an injunction against the TIA in July, 1987. The proceedings began in earnest on 20 November 1988.
The hearing lasted for 90 days, and included a period of sitting in the United Kingdom to facilitate the presentation of evidence by overseas expert witnesses. Witnesses for AFCO were expert in epidemiology, paediatrics, toxicology and respiratory medicine. They were Australian Professors Lou Landau, Tony McMichael, Peter Phelan and Bernard Stewart, and Drs Bruce Armstrong, Tony Breslin, Peter Le Souef, and Terry Nolan. Overseas expert witnesses were Professors Sir Richard Doll and Nick Wald (UK), Dwight Janerich and Dimitrios Tricholpoulos (US).
The TIA called statistical consultants, physicians and toxicologists from Australia, the US, UK and Sweden. It was noted by Justice Morling that the TIA did not number any epidemiologists or specialist paediatricians among its witnesses. Justice Morling interpreted this lack as a significant deficiency in its evidence, and found reason to criticise the testimony of a number of TIA witnesses on the grounds of evasiveness, unreasonable expectations of scientific proof of causality or hypercriticism of existing research. He also noted that for one witness, a consulting statistician, 80% of the income of his practice consisted of work undertaken for tobacco companies.
Proceedings concluded on 25 September 1990, and Justice Morling handed down his 211 page decision in February of the following year. Legal costs for the TIA were estimated to be about $7 million. AFCO received some legal aid to assist with the financing of its case, which cost in total $1.3 million, but also enjoyed the goodwill of its legal representation and expert witnesses, all of whom deferred payment of their costs, and of ASH and Australian health organisations, which contributed by providing advice, research materials and other support services.(16)
Justice Morling found that the TIA was misleading in its statement that 'there is little evidence and nothing that proves scientifically that passive smoking is harmful to health'.
Instead, he concluded that 'there is compelling scientific evidence that cigarette smoke causes lung cancer in non-smokers'; that there is 'overwhelming evidence ... that passive smoking causes some people to experience attacks of asthma;' and that there was 'No rational basis ... for the holding of an opinion that there is little evidence and nothing which proves scientifically that cigarette smoke causes attacks of asthma.'
Justice Morling found the evidence concerning the health effects of passive smoking for young children particularly compelling:
In my opinion the only conclusion open on the evidence is that the statement that there was little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers was demonstrably false in 1986 in so far as it applied to respiratory disease in children in the first year of life. The statement remains false to this day. In my view the falsity of the statement is demonstrated whatever meaning one gives to the terms 'little evidence' and 'scientific proof'. I share the opinion expressed by Professor Phelan that the evidence establishing a causal relationship between passive smoking and respiratory disease in very young children is overwhelming. The evidence is of such strength that it constitutes scientific proof.
In his summing up, Justice Morling stated:
... there is strong public interest in the respondent being prevented from making the statement that there is little evidence and nothing which proves that cigarette smoke causes disease in non-smokers. Active smokers are likely to be misled or deceived by the statement into believing that their smoking does not prejudice the health of non-smokers, particularly small children. Non-smokers are likely to be deceived or misled by the statement into believing that cigarette smoke does not affect their own health or the health of their children. These are serious matters.
The Court ordered the Tobacco Institute of Australia that:
1. The respondent its servants and agents be restrained from publishing or causing to be published, in trade or commerce, the advertisement [A message from those who do ... to those who don't].2. The respondent its servants and agents be restrained from making statements in trade or commerce that it is the fact that:
(a) there is little evidence and nothing which proves scientifically that cigarette smoke causes disease in non-smokers;(b) there is little evidence that cigarette smoke causes lung cancer in non-smokers;
(c) there is nothing which proves scientifically that cigarette smoke causes lung cancer in non-smokers;
(d) there is little evidence that cigarette smoke causes respiratory disease in children under the age of one year;
(e) there is nothing which proves scientifically that cigarette smoke causes respiratory disease in children under the age of one year;
(f) there is little evidence that cigarette smoke causes attacks of asthma in non-smokers;
(g) there is nothing which proves scientifically that cigarette smoke causes attacks of asthma in non-smokers;
(h) there is little evidence that cigarette smoke causes otitis media in children.
3. The respondent its servants and agents be restrained from making statements in trade or commerce that the conclusions drawn in the article 'Relationship of passive smoking to risk of cancer and other smoking-associated diseases' by Lee, Chamberlain and Alderson were based on statistical detail in a study involving 12,000 people.
The TIA responded by launching an appeal against the Morling decision. However on 17 December 1992, the Full Federal Court unanimously found that the TIA's advertisement disputing the evidence about passive smoking was indeed misleading or deceptive under the terms of the Commonwealth Trade Practices Act 1974.(17)
On 10 March 1993, in a supplementary decision, the Full Federal Court decided that it would be too difficult to frame an injunction to restrain the TIA from engaging in similar misleading or deceptive conduct, but granted a declaration that the advertisement in question was misleading and deceptive contrary to the provisions of section 52 of the Trade Practices Act 1974, and ordered that the TIA pay a substantial part of AFCO's costs.(18)
The tobacco industry, both in Australia and overseas, has contended that Justice Morling's findings were overturned on appeal. This is incorrect. None of Justice Morling's findings on the evidence that passive smoking causes disease were overturned on appeal. The judges of the Full Federal Court merely took the view that the advertisement in question was demonstrably misleading or deceptive because of the abundance of scientific evidence, and that it was therefore unnecessary to perform the detailed evaluation carried out by Justice Morling.(19) It is worth noting that it was the TIA which originally insisted that Justice Morling consider and evaluate the scientific evidence, rather than accept it at face value. Upon the Judge's completing the review and finding adversely to the TIA's activity, the TIA then criticised the Judge on appeal for undertaking the task.(20)
In the decision of 10 March 1993, the parties were cautioned not to distort the outcome of the litigation. In particular, the TIA was warned that it needs to take great care to be accurate in future statements it might make about the matter, and was cautioned about promotional material it had already produced which selectively quoted from Justice Morling's judgement.(21) Misrepresentation of the outcome of the appeal could result in serious contempt of court.
Justice Morling's findings, along with the well established duty of care of the employer to provide a safe workplace, provide a compelling legal underpinning to the importance of providing a smokefree environment. Following the judgement, state cancer councils around Australia reported a massive increase in enquiries about potential action against employers who had not yet introduced a smokefree workplace policy.(16) It is likely that many companies will elect to introduce a policy rather than run the risk of workers' compensation cases or civil action.(22)
The Australian Employment Law Guide's Workplace Update(23) has drawn the following list of implications for employers from the Morling decision:
ð A link between passive smoking and disease among non-smokers has now been established in a court of law.ð Individuals may seek court injunctions against the allowance of smoking in public places. This could conceivably include a workplace.
ð A person suffering an illness or disease which can be caused by passive smoking can now, if able to prove that he or she was exposed to cigarette smoke, point to this decision as a legal presumption that the illness/disease was possibly caused by passive smoking.
ð Overall, the decision will make it easier for an employee to mount a case against an employer, and harder for the employer to defend it. Prior to this decision, all cases involving workplace passive smoking in Australia have been settled out-of-court. Note, however, that this decision involved the narrower context of claims made in an advertisement, and an employer defending a passive smoking claim could be expected to seek to have the decision interpreted as narrowly as possible.
ð The decision can be expected to encourage the more widespread operation of smokefree work environment policies, in an attempt by employers to avoid future claims from affected employees.
ð Equal opportunity or anti-discrimination legislation has no application to the question of smoking at work. Employers, however, should be aware that the introduction of a non-smoking policy at work should comply with the principles of 'industrial fairness'. In other words, the policy should not make exceptions based on rank or status.