Edward Lestrade, MA, LLB
Fellow, Royal Society of Health of the United Kingdom
Member, International Bar Association

This article is abstracted from the Authors article in Mondaq on the same subject regarding protection for non-smokers in the Slovak Republic.


According to New Zealand government statistics, 1/5 of Kiwis die from smoking each year and around 400 more yearly, die from passive smoking/ environmental tobacco smoke. The numbers get higher each year.

World-wide, smoking is the biggest killer of people on earth. Every year, around 5 million people die from smoking and smoking-related illnesses according to the World Health Organisation (WHO). The WHO is projecting deaths from smoking to be in the region of 10 to 30 million per year in 2030. In context, by the end of this year and each year thereafter, effectively, a country with the population of New Zealand is wiped out by smoking.

Each year the death toll from smoking world-wide increases and now, more deaths are to be added as it is now universally accepted that smokers pose not only a danger to themselves, but to all those around them who inhale their smoke unwittingly.

In that regard, for those smokers in New Zealand who refuse to accept the deep distress and fatal damage that their habit causes to them and all those around them, I hope this article will provide some elightenment as whilst it is accepted that smokers have a right to kill themselves, it is not accepted that they have the right in a civilised society to force others to suffer the ill-effects and death by their habit.

Non-Smoker's Rights

The sad reality is that inhaling other people's smoke/ passive smoking, causes death, or serious damage to the health of non-smokers and in that regard, governments must take proportionate and effective action be to prevent these consequences. In that context, it is submitted that people who do not smoke, have a right in any civilised society to:-

  • the enjoyment of public places without having to endure inhaling other’s smoke and thus risking death, or alternatively a seriously impairment of their health
  • not have their clothes and bodies contaminated with tobacco smoke from a visit to a restaurant, or bar
  • have the law adequately enforced so that there is total and effective segregation of smokers from non-smokers in bars and restaurants so that non-smokers are not contaminated by environmental tobac
  • their babies yet to be born to enjoy protection from deadly environmental tobacco smoke
  • be able to win significant damages against those who cause them harm, or death through environmental tobacco contamination
  • to to be protected from such harm, or death in accordance with the constitution of their country and relative human rights laws.

Criminal Liability of Smokers

With respect to the criminal liability of those who cause, or permit damage to non-smokers by environmental tobacco smoke contamination, non-smokers will take comfort from a landmark case. In 2002, in Milan, two bank managers of a leading bank were convicted of criminal manslaughter for causing the death of a 35-year-old female bank worker who suffered a fatal asthmatic attack from exposure to secondhand tobacco smoke on the job. They were sentenced to spend three months in jail, and to pay a fine of 50,000 Euros. The decision also give her heirs the opportunity for a civil wrongful death lawsuit to recover damages for causing her death by environmental tobacco smoke.

Environmental Tobacco Smoke Pollution – hidden dangers, fatal outcomes

Passive, involuntary or second-hand smoking occurs when a non-smoker breathes "sidestream" smoke from the burning tip of the cigarette and "mainstream" smoke that has been inhaled and then exhaled by the smoker.  This kind of smoke (environmental tobacco smoke - ETS) is now recognised as a major source of indoor air pollution. The Environmental Protection Agency (EPA) in the USA has classified environmental tobacco smoke (the smoke which passive smokers breath in) as a class A (known human) carcinogen in the family of asbestos, arsenic, benzene and radon gas.

Smoker's and Public Places

There is a tendency to allow active smokers a free rein in proliferating environmental tobacco contamination in public places and objecting non-smokers are treated as cranks and busybodies by active smokers and facility owners as well. Many non-smokers avoid bars, restaurants and other such places, which permit an abundance of tobacco environmental pollution.

Blissfully ignorant of the serious risk to their health posed by smoking bolstered by the overt and discreet advertising of smoking (this includes screen and TV productions showing leading actors indulging in a trendy and macho way!), teenagers and young adults can be seen in bars, smoking one cigarette after another, hopelessly addicted to the one of the most toxic, addictive and damaging drugs we as human beings have ever inflicted on each other.

From my own researches and observations generally, non-smokers feel helpless in about standing up for their rights. Many complain that whilst they do not wish to interfere with the rights of smokers to smoke as much tobacco as they wish, if it only fair that non-smokers should not have to endure the same consequences to their health (or worse) as smokers by way of non-smokers’ involuntary inhalation of the potentially deadly tobacco smoke pollution in their environment caused by smokers in bars, restaurants and other public places.

Passive Smoking and Death

The US Health Department concedes that secondhand tobacco smoke (passive smoking) kills more than 60,000 Americans each year — more than those killed in by motor vehicle accidents yearly.  In the UK a recent government study concludes that 3 people each day die from the effects of passive smoking at work and per year, about 600 lung cancer deaths and up to 12,000 cases of heart disease in non-smokers can be attributed to passive smoking.

In addition, the recent report of the UK government's Scientific Committee on Tobacco and Health (SCOTH) is conclusive that passive smoking is a cause of lung cancer. Long-term exposure carries an increased risk of 20-30%. The report confirms that passive smoking is a cause of deadly heart disease, serious lung damage, asthmatic attacks, middle-ear disease in children and sudden infant death syndrome. The study found that tobacco specific carcinogens are found in the blood and urine of non-smokers contaminated by environmental tobacco smoke.

Further, the effect of passive smoking with respect to cardiac disease was studied by Ichiro Kawachi of the Harvard School of Public Health, who followed 32046 healthy, non-smoking women enrolled in the nurses health study for a period of 10 years (Circulation 1997;95:2374-9). Healthy, non-smoking women who were regularly exposured to passive smoke at home or in the workplace had a 91% greater relative risk of heart attack than those who had low passive smoke exposure. Those with occasional exposure had a 58% greater relative risk.

The potentially lethal effect of environmental tobacco smoke pollution can be worked out from its constituents: generally, tobacco smoke has over 4000 chemicals comprising particles and gases. Research findings show that toxic gases are greater in side stream smoke than in mainstream smoke. Around 85% of the smoke in a room is from side stream smoke. Particulates in the smoke include tar, nicotine, benzene and benzo(a)pyrene. Gaseous substances comprise: carbon monoxide, ammonia, dimethylnitrosamine, formaldehyde, hydrogen cyanide and acrolein. Most of these are known irritants and the majority are known, or suspected cancer-causing substances (carcinogens).

Symptoms of Trauma in Adult Passive Smokers

These include: eye irritation, headache, cough, sore throat, dizziness and nausea. Those suffering from asthma experience a worsening of their condition when exposed, while new cases of asthma may be caused in children whose parents smoke. Even short-term contamination by tobacco smoke has the effect of reducing heart blood flow – this is measurable after about only 30 minutes. Over a longer term, passive smokers suffer a wide range of smoking-related diseases. In addition, passive smokers in the home have a 25% increased chance of heart disease and lung cancer. This is supported by the recent review by the UK Government-appointed Scientific Committee on Tobacco and Health (SCOTH) (quoted above), which concluded that passive smoking is a cause of lung cancer and serious heart disease in adult non-smokers and a cause of respiratory disease, cot death, middle ear disease and asthmatic attacks in children.   The International Agency for Research on Cancer (IARC) noted that "the evidence is sufficient to conclude that involuntary smoking is a cause of lung cancer in never smokers". As such there is enough reputable scientific evidence worldwide to support a view that passive smoking kills.

Passive Smoking and Damage to the Health of Children

Again, the UK is a good reference point. Almost half of all children in the UK are exposed to tobacco smoke at home. In children this kind of contamination increases the risk of lower respiratory tract infections such as bronchitis, pneumonia and bronchiolitis. In that regard researches have shown that in homes where both parents smoke, children have a 72 per cent increased risk of lung diseases. In addition, passive smoking causes a deterioration of lung function and the increased severity of asthma symptoms in children. In that regard, it is a principal risk factor for all new cases of asthma in children. Passive smoking has also been associated with middle ear infection in children, heart impairment and behavioural problems.

Young children of smoking parents tend to be admitted to hospital for bronchitis and pneumonia in the first year of life. In the UK, more than 17,000 children under the age of five are admitted to hospital every year because of the effects of passive smoking. Passive smoking during childhood has been found to be a major contributing factor in children developing chronic obstructive airway disease, mental defects, eye and ear impairment and cancer.

New Zealand – leading the way in health reform

I hope the above will give some impetus to law-makers in New Zealand to pass laws giving more protection to non-smokers as a matter of urgency. I also hope that it will make smokers aware of their increasing negative image and the serious consequences of their inconsiderate behaviour by subjecting others to the deadly contamination posed by passive smoking.

The idea behind this article is to draw focus to a the most serious threat to health for any country and to encourage the non-smokers to demand protection for themselves and their children.

Obviously, there are legal remedies available to those negatively affected by passive smoking and those interested in this avenue should consult an appropriately qualified New Zealand lawyer.

Copyright Slovak Republic 2003

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.