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Negligence – duty of care – climate change litigation…

…representative proceeding on behalf of Australian children under 18 against the Minister for the Environment – threat of global warming and climate change to the world and mankind – novel duty of care

In Minister for the Environment v Sharma [2022] FCAFC 35 (15 March 2022), the Minister appealed a decision in which it was held that she owed a duty to take reasonable care in the execution of her duties, powers and functions under ss130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), to avoid causing personal injury or death to children resident in Australia arising from carbon dioxide emissions.

The Minister also appealed the primary judge’s finding that human safety was an implied mandatory consideration under the EPBC Act. The threat of climate change and global warming was not in dispute between the parties.

The Full Court allowed the appeal, rejected the primary judge’s finding that there was an implied mandatory statutory consideration under the EPBC Act, and rejected the imposition of a duty of care. Each member of the bench provided different reasons for finding no duty of care, though all remarked on the difficulty of assessing the case in circumstances where the cause of action was incomplete because damage had not yet occurred.

Allsop CJ considered that the duty should be rejected for three reasons:

(i) the posited duty throws up for consideration, at the point of breach, matters that are core policy questions unsuitable in their nature and character for judicial determination
(ii) the posited duty is inconsistent and incoherent with the EPBC Act
(iii) considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations (necessarily arising at the point of assessing breach) make the relationship inappropriate for the imposition of the duty.

His Honour considered that the proper approach to determine whether a duty of care exists is to begin with the relationship between the parties and consider context, coherence and what is necessarily thrown up at the point of breach, rather than analysing each salient feature on the hypothesis that the government defendant will be amenable to potential liability (at [209]-[212]).

Beach J rejected the imposition of a duty of care based on: (i) insufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm – whether temporal, geographic, causal or otherwise; and (ii) the indeterminacy of liability, particularly due to the lack of ascertainability of the relevant class.

His Honour expressed no difficulty with the salient features approach to determining whether a duty of care is owed, so long as it is appreciated that it is only a conceptual tool, but considered it should not distract from consideration of broader questions such as whether there is sufficient closeness and directness (at [362]).

His Honour accepted there was reasonable foreseeability of harm in the context of duty, and considered the evidence had made out that it was possible to foresee that a particular action may combine with other circumstances to cause harm (at [423]-[428]).

It was rejected that incoherency was a strong feature against recognising a duty of care (at [609]), and the case was not in the realm of “core” policy, which label his Honour found unhelpful (at [615]). He concluded that “policy is no answer to denying the duty unless the Act itself makes such policy questions so fundamental to the exercise of statutory power that such a conclusion is compelling” (at [633]), which was not the case here.

Wheelahan J’s decision was that no duty of care arose because:

(i) the EPBC Act does not create a relationship between the Minister and the children that supports the recognition of a duty of care
(ii) the standard of care cannot be feasibly established, which would lead to incoherence between the duty and discharge of the Minister’s statutory functions
(iii) it was not reasonably foreseeable that the approval of the coal mine extension would be a cause of personal injury to the children.

Shanta Martin is a barrister at the Victorian Bar, ph (03) 9225 7222 or email shanta.martin@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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