Lord Atkin in 1932 asked the question: “”Who is my neighbour?” and was reported fairly immediately in the official law reports.
Of course, the question was asked earlier by Jesus who was reported some 60 years by Luke in his Gospel. The answers were entirely different. For Jesus the answer was everyone and everyone had a duty to held everyone else, especially mugged travellers on the Jerusalem-Jericho road. For Lord Atkin the answer had strict legal confines. Lord Atkin decided that the manufacturer of ginger beer was the “”neighbour” of the woman who drank it. A neighbour was someone who had a duty of care to someone else. It was a question of proximity and a connection.
Before 1932 only the purchaser of the ginger beer could sue the manufacturer if it was faulty. Mrs Donoghue, who drank the beer and to her shock found a snail in it, did not buy the beer. Lord Atkin said she could get damages under his “”neighbour” principles.
The legal categories of “neighbour” have widened ever since, though never quite attaining Jesus’s standard. The law imposes no duty to rescue or treat mugged travellers, drowning drongoes or people who sleep on railway tracks. The judges interpreting common law were always wary of “”opening the floodgates” to too many claims.
But now we find the legislature imposing wider and wider categories of “”neighbour” _ so wide, indeed, that Nanny State is deciding that we are own neighbours and have to be protected from ourselves. First it was seat-belts, then motor-cycle helmets, then cycle helmets, now smoking in pubs and clubs. Previously, the law thought people were entitled to be protected against the negligence of others. Now we have to be protected against ourselves. The floodgates are open.
The ACT Government is to legislate to make what it calls public places “”smoke free”. Shopping malls, hotel lobbies, clubs, pubs and restaurants will be made smoke free. This is to protect the health of the members of the public who enter them.
Most people have no difficulty with smoking bans at work. Employers are under a duty to provide safe work conditions. The safety of those who have to go to work is paramount over the addictive desires of those who want to pursue dangerous habits.
However, there is a serious flaw in extending the argument to pubs and clubs and the like. It is a mistake to say these are public places. They are not. They are private places. The owners or lessee occupiers have given the world at large an implied invitation to come inside, but it is an invitation that can be revoked at will. It is revoked at will, for example, every evening at closing time. Once revoked the occupier has the right to remove anyone using reasonable force if necessary.
This is an important right. If the Government denies it by suggesting that these privately owned and leased properties are “”public places”, then occupiers are presumably denied the right to eject members of the public they don’t like _ say, smokers, to give an ironic example.
The point is whether it is for the occupiers to determine the conditions they will place upon people coming in to their premises, or whether the Government should set them, and just how far should the Government go.
It is true that the law in general imposes upon occupiers a duty to all who enter. Generally, the duty is one not to permit unsafe hazards. That duty is enforced in two ways: criminal penalties for breaching electrical and scaffolding and lift regulations and civil liability flowing from general hazards. There is an important distinction. The criminal penalties apply where there is an immediate danger of death or serious injury. The civil liability applies to much lower risk hazards (like slippery floors or lose handrails and the like). However, civil liability only applies upon proof of injury. To prove that in the case of passive smoking would require proof of fairly constant exposure and in the case of a pub or club would be met with the counter-claim that the passive smoker voluntarily exposed himself to the risk because their is no compulsion to go into a club or pub.
Now it seems the Government is to lift the hazard of passive smoking from the civil to the criminal. It has already done that in the case of workplaces, largely on the argument that employees have to be in the workplace. And it has been extended to the confined spaces of public transport, where once again there is little or no alternative for travellers. Now it is to extend it to üall places where the public at large is invited in.
The Government’s thinking (if one can call it that) seems to be that once an occupier invites the public at large into premises, the occupier cannot permit its invitees to smoke on those premises. It is a dangerous a silly precedent.
Sure, smoking is odious in shopping malls. The AMP has decided that, and as a private occupier told the people it invites in to its malls that they cannot smoke. If they do, the AMP can quite properly exercise its rights as property owner to eject the smokers. People will be attracted to its malls. And other people would no doubt be attracted to malls which said they permitted smoking.
Smoking, however, is not odious in pubs, clubs and restaurants. That is often why people go there. Sure, some don’t like. And that’s the point. Pubs, clubs, restaurants and hotels should have the choice. They should be allowed to invite people in to smoke of they want. Or, if they want, they should be allowed to throw people who smoke out.
Perhaps that is what people should do with Governments that intrude on occupier’s rights by failing to draw a reasonable line in answering the question “”who is my neighbour?”