## Facts

- A pregnant woman dined with her children at a Jerusalem restaurant operated by a restaurant company.
- During the meal, another patron smoked.
- The woman complained to the restaurant, but smoking continued.
- She sued in small-claims court, alleging the restaurant violated Israel’s Restriction of Smoking in Public Places Law and caused her harm.
- The small-claims court found a statutory violation but awarded only the meal cost (NIS 112) plus expenses.
- The district court denied leave to appeal, concluding the amount fell within a reasonable range.
- The plaintiff sought leave for a further appeal to the Supreme Court of Israel, arguing the award was inadequate given the public-health purpose of the law and the difficulty of proving concrete injury from a single exposure.

## Issues

1. Whether a restaurant’s violation of the Restriction of Smoking in Public Places Law constitutes a civil tort as a breach of statutory duty owed to patrons.
2. Whether, despite difficulty proving specific physical harm from an isolated secondhand-smoke incident, damages may exceed a meal refund to reflect the protected interest and deterrence (including where children and a pregnant woman are exposed).
3. Whether the Supreme Court should intervene on a second-tier, leave-to-appeal application arising from a small-claims judgment to adjust the amount of compensation.

## Decision

- Leave to appeal was granted and the appeal was partly allowed.
- The Court held that violating the Restriction of Smoking in Public Places Law constitutes breach of statutory duty intended to protect public health in shared spaces.
- The Court increased compensation, reasoning that limiting recovery to a meal refund would insufficiently deter violations where proving individualized harm is practically difficult.
- The Court awarded an additional NIS 1,000 to the plaintiff beyond the small-claims award.

## Legal Principles

- A proprietor’s failure to prevent smoking where prohibited by statute can constitute a tortious breach of statutory duty when the statute’s purpose is to protect patrons’ health.
- Even absent an express statutory scheme for damages without proof of harm, courts may account for the evidentiary difficulty of proving specific injury from a discrete exposure and award meaningful compensation with a deterrent function.
- Civil litigation may serve an important enforcement role for public-health legislation where official enforcement is ineffective.
- Exposure of vulnerable persons (children and a pregnant woman) is a relevant factor supporting a stronger remedial response.

## Conclusion

The Court treated a restaurant’s failure to stop unlawful smoking as a compensable breach of statutory duty and increased damages to ensure effective deterrence despite the practical limits on proving concrete physical injury from a single secondhand-smoke event.


Shemesh v. Focaccetta Ltd., LCA 9615/05 (Isr. 2006)