Malone Engineering Products Ltd v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 21 July 2006
• Neutral Citation: [2006] IEHC 307
• Docket Number: No. 2115 P/2006
• Court: High Court
• Date: 21 July 2006

[2006] IEHC 307

THE HIGH COURT

No. 2115 P/2006

MALONE ENGINEERING PRODUCTS LTD v HEALTH SERVICE EXECUTIVE

BETWEEN/

MALONE ENGINEERING PRODUCTS LIMITED

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)(d)

PUBLIC HEALTH (TOBACCO) ACT 2002 S16

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)

SMOKE FREE ENVIRONMENTS ACT 1990 (NZ)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(6)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(2)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)(c)

PUBLIC HEALTH (TOBACCO) ACT 2002 S47(7)(d)

OXFORD ENGLISH DICTIONARY "OUTDOOR"

CHAMBERS DICTIONARY "OUTDOOR"

OXFORD ENGLISH DICTIONARY "PERIMITER"

OXFORD ENGLISH DICTIONARY "WALL"

HEALTH:

Public health

Licensed premises - Prohibition on smoking in specified places - Exempted structures -Whether structure in compliance with legislation - âÇÿOutdoors' - âÇÿPerimeter' - âÇÿWall' - âÇÿIndoors' - Public Health (Tobacco) Act 2002 (No 6), s 47(7)(d) - Public Health(Tobacco) (Amendment) Act 2004 (No 6), s16 - Declaration refused (2006/2115P -Murphy J - 21/7/2006) [2006] IEHC 307 Malone Engineering Products Ltd v Health Service Executive

section 47(7)(d) of the Public Health (Tobacco) Act 2002, as amended, provides, inter alia, that the prohibition on the smoking of a tobacco product in a specified area provided for in subsection (1) shall not apply to “an outdoor part of a place or premises covered by a fixed or moveable roof, provided that not more than 50% of the perimeter of that part is surrounded by one or more walls or similar structures (inclusive of windows, doors, gates or other means of access to or egress from that part).” The plaintiff manufactured a product known as Freshwall which it claimed, inter alia, was a “modular system that provides for an indoor environment outdoors with protection from the elements [and which] can provide…an outdoor…external four sided room…within the law, providing a comfortable, warm, dry environment [and that it was]…the indoor solution to the smoking regulations…” The plaintiff sought a declaration from the High Court that that the structure known as Freshwall was subject only to the appropriate conditions of its placement and installation at the place or premises at which it was situate in compliance with section 47(7)(d) of the Act of 2002, as amended, the defendant having failed, at the prior request of the plaintiff to do so, to certify the product as such.

Held by Mr Justice Murphy in dismissing the plaintiff’s claim that the court could not deal with an issue in the abstract without considering the factual matrix pertaining thereto. That the word “outdoor” in the relevant provision had to be used in its ordinary sense and construed in the context of the nature of the structure in question. Relevant to the determination was the plaintiff’s own use of the word “indoors” to describe the structure in its promotional literature. That, on the common understanding of the words “outdoor”, “perimeter” and walls”, the structure comprised walls creating a continuous indoor space.

Reporter: P.C.

Mr. Justice Roderick Murphy

1 This is a matter that was heard by the court on Wednesday and Thursday, yesterday, and it raises some points which the court would deal with by, first of all, referring to the endorsement of claim and then the factual matters in the two technical reports and submissions made by counsel, and then that will lead to an interpretation, then, of the relevant legislation.

2 Firstly, the plaintiff, by plenary summons of the 17th of May last, sought, among other matters that were not proceeded with, a declaration that the structure known as Freshwall is subject only to the appropriate conditions of its placement and installation at the place or premises at which it is situate, in compliance with s. 47(7)(d) of the Public Health (Tobacco) Act,2002, as inserted by s. 16 of the Public Health (Tobacco) Act, 2004, and, as I say, the other reliefs were not pursued.

3 The parties to this plenary summons, Malone Engineering Products Limited, was the designer and manufacturer of the particular structure known as Freshwall. The defendant, as Health Service Executive, is the defendant in relation to the issue of the declarations, but the court should say in passing that, while not a party to these proceedings, the Office of Tobacco Control, through its solicitor, Mr. Roughan, did make an observation to the court, and the court allowed him and the parties were happy that he should so make, that there was no question of any undertaking given by the Office of Tobacco Control with regard to what action they might or might not take in relation to the licensed vintners that had used this structure known as Freshwall in relation to the prohibition on smoking within public houses and indeed in relation to the matters to which I will now refer.

4 Mr. Roughan referred to a letter of the 21st of March, 2006, which preceded the summons, the plenary summons, and that stated:

"As stated previously, there is no approval process in respect of the exemption of structures under the relevant sections. Ultimately, this is a matter to be determined by the courts."

"It follows that the Office of Tobacco Control shall not be issuing a statement regarding the approval of any product or its compliance with legislation."

"This is not to be taken in any way as an indication that the relevant enforcement agencies will not take action to prosecute an offence in an appropriate case."

5 Now, evidence was given on behalf of the plaintiff by Michael Buckley, and who also furnished a report to the court, and I might just summarise that by way of his conclusion. He says, "I consider that evidence shown above is proof that 50% of the perimeter of the enclosed area is fully and permanently open and as such fully complies with s. 47(7) of the" relevant legislation.

"I also consider that the ventilation effect caused by the openings being spread evenly and consistently around the full perimeter of the area and as proven by BSRIA as achieving average air change rates of 369 air changes per 1.24 metres per second wind velocity, 401 air changes at 2.39 metres per second wind velocity and 632 air changes at 4.24 metres per second wind velocity. These exceptional air change rates result in a highly ventilated area which ensures a dilution of any pollutants so as to comply with the intent of Section 47(6)."

6 Perhaps I should say in passing that that particular subsection is one that deals with the purpose of the section, and it says as follows: "This section has been enacted for the purpose of reducing the risk to and protecting the health of persons."

"I further consider that the Freshwall panel has been manufactured in substantial compliance with established engineering guidelines and codes of practice. Each component is cut and folded in a computer controlled press and then the sections are assembled in a jig which maintains the accuracy of construction."

Mr. Buckley continues,

7 Now, that conclusion is at the end of a lengthy report which looks at the background and gives the section of the assembly which the court has already designated as a series of panels of 500 millimetres in an N, L and S shape, and these are fixed to a base and to a top and are tied in two areas horizontally on the vertical panels. The court has had the benefit of the model which was in court, which was a model of approximately a half a metre in height and, therefore, gave a representation in that smaller area of what the full structure would look like.

8 Now, Mr. Buckley then having given those details, and particularly the sectional diagram, also then dealt with his witnessing the ASEP Kinsealy tests, and there are two matters that the court wants to deal with on that.

9 The first is that the emphasis that was put, as we see, in the conclusion on the air quality monitoring, and these were tests that were carried out by Mr. R.A. Patrick and were done in a full report which is referred to.

10 Secondly, there were calculations on the open area calculations and these are in a lot more detail in terms of the actual structure in Kinsealy, in the Kinsealy Inn, and it refers also to a comparison with the New Zealand legislation, which I understand is the subject which is introduced by the Smoke-Free Environments Act of 1990 in that jurisdiction. And Mr. Buckley concludes that the minimum total area allowed under New Zealand legislation is 20 percent of the floor area, and the Freshwall system is 160 percent of the floor area, or eight times better than is required.

11 So it seems to me that there are three elements within the report of Mr. Buckley: One is the general one relating to the openings on the panels. The second is the number of air changes. The third is the floor area, and that seems to me, and I so commented, that it was akin to some of the building regulations in relation to ventilation on rooms within buildings which had to be related to the actual floor area. So what is being dealt with by Mr. Buckley would seem to me to be a linear area and volume appraisal of the functioning of this structure.

12 The BSRIA report carried out for the Freshwall — carried out for the plaintiff, and was dealt with by Nigel Potter, and Mr. Potter gave evidence, and he was not familiar with the actual structurein situ in the Kinsealy Inn, but he had a model and dealt with the model in a wind tunnel and was able to give certain results in relation to that. Again, it seems to me that the thrust of the report of Mr. Potter is on the basis of ventilation and of the testing, then, of the various particles — sorry, not with the particles, but rather with the performance of the model, rather than of the actual structure in Kinsealy Inn.

13 The court has also considered the report of Tony O'Keeffe & Partners, who is...