Apartment smokers to be sued for causing lung cancer in neighbor.

I wonder if ASH (Action for Smoking and Health) would be interested in raising a fighting fund to get cigarette smoke legally established as a 'nuisance' under the terms of the Strata Act.  This would probably take a High Court action for a definitive precedent to be set.

Also, under the suggested revisions of strata laws, we should pressure the government to make the enforcement of by-laws obligatory rather than optional for Owners Corporations. Why would that make a difference?  Because you would know what kind of place you were moving into from reading the by-laws.

For instance, in my own building we aren't allowed to have air conditioning – this is a good thing as the building has won awards for being designed to be cooled by natural airflow.  Result: You have to keep your windows open in Summer.

We also aren't supposed to let smoke from cigarettes, cigars, pipes or barbecues pass from balconies into other lots … but the majority of members of the EC have barbecues (not, by the way, the majority of residents) so that one is never enforced.  Result: Choose between baking in the heat of summer with the windows closed or being choked by the handful of selfish bastards who don't care where the smoke and stink from their precious ciggies and barbies goes (as long as it's not in their units)…

Just as an aside, did anyone following this story notice how the poor bloke in the centre of all this went from “fitness fanatic” to “cancer victim” in the headlines? Meanwhile, the story refers to 'body corporate' and 'tenancy tribunal'. No biggie, in either case, but an indication of how far away we are from the majority of people in this country knowing (or caring) what goes on in strata.

You don't need it to be in the by-laws … it's in strata law.

117   Owners, occupiers and other persons not to create nuisance

(1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

Call Fair Trading on 13 32 20 or go HERE to download the form you'll need to arrange a mediation – a compulsory first step before you can pursue a complaint at the CTTT. If mediation fails the next stage is to ask for an adjudication.  You will need as much documented support as you can muster, including statutory declarations or notarised letters  from neighbours and friends who have witnessed the smoking and its effects.  A statement from your doctor that the neighbours smoking is affecting your health will also help immensely and, even if they don't want to take on the issue themselves, a letter of support from your Executive Committee will help too.

There has been a case in the past where the CTTT ordered strata residents to stop smoking. That is not a true legal precedent and the CTTT is notoriously fickle but it is an indication that you have a reasonable chance of success if you pursue it.

Smokers do have a right to do what they want in their own homes – but not if it adversely affects their neighbours.

In the long term, you should propose a by-law for your next AGM that prohibits smoking on common property or allowing smoke to pass over common property or into another owners lot.  This is a standard by-law that most new buildings have as part of their basic health and safety measures.

Many smokers these days are aware of the offence and damage their addiction causes other people and take steps to avoid it.  Anyone who doesn't is utterly selfish and inconsiderate and deserves no sympathy from anyone. This isn't about freedom or the “nanny state” – it's about basic human decency.

Let's hope that this leads to the emergence of an explicit identification of smoking as a nuisance or hazard for the purposes of S.117 of the Act.  Living in a mid-60s block, I was interested in your reference to a by-law adopted by new blocks, prohibiting release of smoke that might pass over common property or into another owner's lot.  Can you provide a link to such a by-law – I would be interested in putting it forward 'ready made' at a future general meeting, without having to engage an expensive strata lawyer to, in effect, reinvent the wheel.

We’ve just added a by-law at the AGM last month pretty much to that effect, but did not include BBQs:

“An Owner or occupier of a Lot must not smoke cigarettes, cigars or pipes whilst they are on Common Property, including but not limited to the entry foyer and lobby, or allow smoke from their Lot to enter Common Property.”

The logic was to go for the common property first, as one of the major problems was a rear light-well/fire stair which is great for a fresh breeze when the back door is open, but is an obvious choice for the smokers too, and also the assumption that any smoke entering private property “passes through common property”, which I think is a bit weak personally.

We were a bit wary of going for any laws affecting private property, but I personally hope to make the whole building non-smoking in time, especially seeing quote’s like ”If you can smell smoke, it is hurting you”. If this is true, then it would be more than a nuisance, it would surely be a HAZARD !!

(I am a balcony BBQer by the way, but since reading here about the cigarette issue etc. I’d like to think I’m a bit more considerate now. And I will happily give that up if there is a decision to do so. But I don’t know that BBQ is the same health issue as cigarette smoke.)

It's true that the smoke that starts inside stays inside but not all apartments have connected ventilation.  And, to be fair, the argument that we get so many carcinogens anyway is a wee bit specious.  There's a cumulative effect in these materials and taking one element out of the system must make a difference.

There is surely now no doubt that passive smoking causes actual harm as well as personal distress for individuals.  Right now there is a section of the strata Act that says even if you live in a pet-friendly building, if your pet is damaging someone else's health (through allergies etc) it has to go (see below, but bear in mind the the legal term nuisance is a lot more specific than just 'annoying').

So, if you can force someone to give up a pet, why not smoking if, in fact, it does cause a problem for someone else.  People have the right to damage their own health (with some drugs but not others) but you don't have the right to damage someone else's, including your own kids.

I can see the day come soon when there will be designated smoking and non-smoking buildings … until someone in a smoke-friendly building gets cancer and sues the OC for encouraging them to smoke.

151   Order relating to animal kept in accordance with by-laws(1) 

An Adjudicator may make one of the following orders if the Adjudicator considers that an animal kept on a lot or the common property in accordance with the by-laws causes a nuisance or hazard to the owner or an occupier of another lot or unreasonably interferes with the use and enjoyment of another lot or of the common property:

(a)  an order that the person keeping the animal cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel,