Premises such as hotels, clubs, nightclubs and casinos where the consumption of food or non-alcoholic drinks is not the "predominant use of the area" are not affected by these smoking bans.

The NSW Supreme Court decision of Sharp v Port Kembla RSL Club (2001) NSWSC 336 highlights the duty of care owed by employers in the hospitality industry notwithstanding any smoking ban exemptions afforded to them by legislation. That duty is to provide employees with a reasonably safe place to work and to manage all foreseeable risks of injury in the workplace.

In Sharp, the barmaid had worked at the club's bar for 11 years and previously worked in the Port Kembla Hotel for 12 years. She gave evidence that she had been exposed to large amounts of smoke including having it blown in her face by patrons, that she had cleaned ashtrays which contained burning cigarettes and that on busy days, there had been a "blue haze" in the air. She left the job in 1995 when she developed cancer of the larynx. The court was told that the disease would be extremely rare if it were not for tobacco smoke.

A four-man jury found the RSL Club was negligent in that it had not provided a safe workplace for its employee.

The barmaid was awarded over $450,000 in damages and WorkCover NSW was ordered to pay the legal costs of over $1 million.

This decision is the first time an employee has been awarded damages in a common law action for having contracted cancer as a result of environmental tobacco smoke.

In finding in the barmaid's favour the court and jury found that:

• the employer had known about the dangers of passive smoking but chosen to expose the employee to the dangers;
• the employer could have taken precautions to remove or lessen the danger but had failed to do so; and
• the passive smoking had caused the cancer.

This case comes as a warning to employers in the hospitality industry that they may be exposing themselves to common law actions for negligence from their employees who suffer illness as a result of passive smoking, possible criminal liability and also prosecution for breach of occupational health and safety legislation by the WorkCover Authority. Such employers would be advised to adopt strategies for minimising environmental tobacco smoke including ventilation, removal of incentives to smoke, and smoke-free areas.