Earlier this year, the Legal Research Hub looked at recent climate change litigation in Australia with a particular focus on the case of Sharma v Minister for Environment (‘Sharma’).[1] On 27 May 2021 a decision on that case was handed down by Bromberg J of the Federal Court of Australia. The Court held that a novel duty of care was established; however, the injunction the applicants sought was not granted. This article will explore the decision and the impact it has on future climate change litigation. Moreover, the article will analyse the decision by posing two questions. First, how was a duty of care between the Minister for Environment (‘The Minister’) and the class of persons the applicants represented established? Second, why was the injunction the applicants sought not granted?
1. How was a duty of care between the Minister for Environment and the class of persons the applicants represented established?
First, it should be noted that the class of persons the applicants represented was described as ‘Australian children’ under the age of 18 years.[2] Second, the applicants described the duty of care they were seeking to establish as a duty for ‘the Minister [for Environment] to take reasonable care in the exercise of her statutory powers not to cause the Children harm arising from the extraction of coal from the Extension Project and the consequent emissions of carbon dioxide (CO2) into the Earth’s atmosphere’.[3] Third, establishing the fact that a duty of care exists, as Bromberg J described, is ‘a necessary condition of liability in negligence’. Therefore, one must prove that a duty of care exists between the Minister and the Children before establishing any liability that the Minister may have towards the Children.
The applicant’s argued that the content of the Minister’s duty to Australian children stemmed from the Minister’s duty to exercise her powers under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the ‘EPBC Act’) ‘with reasonable care to not cause the Children harm resulting from the extraction of coal and emission of CO2 into the Earth’s atmosphere’.[4] Furthermore, the type of harm encompasses mental or physical injury due to ill health or death, damage to property and economic loss.[5]
To establish a novel duty of care, one must go through an assessment of the facts focusing on the relationship between the plaintiff and the defendant (the alleged tortfeasor).[6] Bromberg J referred to the list of salient features set out by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar.[7] The list includes the following mentioned below. However, it has been noted by other judges that it is not an exhaustive list:[8]
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.[9]
Bromberg J then discussed early environmental cases and how the law, in this case, is asked to adapt to ‘altering social conditions brought about by human interference to the natural environment’.[10] From there, Bromberg J addressed the salient features to be considered when determining whether a duty of care between the Minister and the Children has been established.
The applicants argued that the salient features that support the establishment of a duty of care were: (1) the ‘degree of control’ the Minister could exercise to avoid harm when deciding whether to grant the extension to the coal mine project or not; and (2) the reasonable foreseeability of the harm and (3) the relationship between Minister and the Children as Australian citizens.[11] Bromberg J remarked that he ‘ultimately conclude[s] that each of those salient features tend to support a duty of care being recognised’.[12] These were considered ‘affirmative salient features’ and were dealt with in section five of the judgment.
However, the Minister argued that the ‘posited duty was extraordinary’ and that there is no precedent for such a duty to be established.[13] The Minister contended that there are salient features such as reasonable foreseeability of the harm, control, proximity between the Minister and the Children, degree of reliance, assumption of responsibility by the defendant and any potential indeterminacy of liability support ‘the rejection of a duty of care’.[14] Bromberg J dealt with the salient features mentioned by the Minister in section six of the judgment titled ‘Negative Salient Features’.
Discussion of reasonable foreseeability and the key ‘affirmative’ salient features
In summary, Bromberg J held that it was reasonably foreseeable that the Children would be exposed to the risk of death or personal injury as a consequence of the increase in global average surface temperature, increased CO2 in the Earth’s atmosphere and natural occurrences such as heatwaves, bushfires, cyclones and coastal flooding[15]. With further assessment, Bromberg J concluded that although ‘…this is a case where the foreseeability of the probability of harm from the [Minister’s] conduct may be small’, where the risks manifest, the foreseeable harm would be catastrophic.[16]
Regarding the salient features of control, responsibility and knowledge, Bromberg J held that the Minister ‘has substantial and direct control’ not only over the source of the harm but control that stems from the responsibility that comes with the office the Minster occupies.[17] Moreover, the fact that the Minister had the requisite knowledge regarding the risk of harm to the Children enhanced the Minister’s control. Thus, the salient features of control, responsibility and knowledge strongly support the existence of a relationship between the Minister and the Children that is sufficient to establish a duty of care.
Regarding the salient feature of vulnerability, Bromberg J held that the evidence presented in Court shows that the Children are ‘extremely vulnerable to a real risk of harm caused by increase global average surface temperature’.[18] Moreover, the Children can be considered vulnerable persons due to the ‘magnitude of the potential risk of harm’ arising from the extraction coal from the Extension Project and increased CO2 emissions as well as ‘their powerlessness to avoid that harm’.[19] Concerning the salient features of reliance, Bromberg J noted that the Children ‘bear no responsibility for the unparalleled predicament which they now face’ and that their innocence should be recognised and given weight when considering the relationship between the Children and the Australian government.[20]
Concerning the salient feature of a recognised relationship, Bromberg J noted that despite there being no physical or temporal proximity between the Minister and the Children, there is a ‘relational’ proximity based upon the vulnerability of the Children, and their reliance on the government to protect them from the harm posited by the applicants. However, it was noted that proximity did not add much support to the recognition of a duty of care in this case. Thus, not much weight was given to proximity as a salient feature.
Coherence as a ‘negative’ salient feature
Another salient feature to address that was noted by Bromberg J, discussed in section six (‘Negative Salient Features’) of the judgment, is coherence. The principle of coherence is ‘a creature of common law’ and not a principle attributable to Parliament.[21] Bromberg J further explains that coherence is a ‘policy consideration applied by the common law’ to help ‘the development and application’ of the common law when it interacts with legislation.[22]
Here, the Minister argued that the establishment of a duty of care towards the Children is ‘incoherent with public law’ in general but mentioned the EPBC Act specifically. The Minister contended that the posited duty of care presented by the applicants would be inconsistent with the duties and powers given to the Minister under ss 130 and 133 of the EPBC Act. It would impair the Minister’s ability to exercise her duties and power under the relevant sections mentioned as well as the Minister’s discretion when exercising such duties and power. This is because it would limit the Minister’s choices and compel the Minister towards a particular outcome, which in this case would be to reject the application for the Extension Project. However, Bromberg J held that there was a lack of sufficient incoherence to consider the ‘negative’ salient feature as determinative to reject the claim that a duty of care exists. Furthermore, Bromberg J held that a duty of care, should it be established, would not be incoherent with public law, particularly administrative law.
Was a novel duty of care established?
Having considered the salient features, the ones that support the establishment of a novel duty of care and those that did not, Bromberg J held that a novel duty of care was established. He noted that the salient features that were mentioned in support of establishing a duty of care between the Minister and the Children had much more weight compared to the salient features mentioned in support of not establishing a duty of care. Bromberg J stated that reasonable foreseeability’ and the salient features of control, vulnerability and reliance ‘…strongly favours the recognition of a duty of care’ and ‘[i]n totality….the relations between the Minister and the Children answer the criterion for intervention by the law of negligence’.[23]
Bromberg J noted that his conclusion was confirmed when the issues were ‘re-examined through the lens of the neighbourhood principle’ from the case of Donoghue v Stevenson.[24] He noted that based on ‘contemporary social conditions and community standards’ it is not farfetched to conclude that ‘a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emission of…CO2 into the Earth’s atmosphere’.[25] Thus, the Minister for Environment ‘has a duty to take reasonable care’ to avoid causing harm to the Children when deciding whether to approve or not a controlled action, in this case, the extension of the coal mine project in question.[26]
2. Why was the injunction the applicants sought not granted?
Bromberg J’s reasoning for not granting an injunction refers back to the arguments made by the Minister in regard to coherence. He notes that the restraint an injunction would impose on the Minister would inevitably require her to reject the application for the Extension Project since the application asks the Minister for permission to extract coal ‘in accordance with the proposed Extension Project’.[27]
Considering whether the injunction should be granted Bromberg J stated that the Court needs to be satisfied that there is a reasonable apprehension of a breach of the posited duty of care.[28] The applicants argued that there will be a breach of a duty of care if the Minister approves the Extension Project and there is reasonable apprehension that the duty of care will be breached because there is a reasonable apprehension that the Minister will approve the Extension Project.[29] Bromberg J noted that there may be other, more nuanced, options open to the Minister other than just accepting or rejecting the application for the Extension Project. However, the parties failed to explore other possible options which led to Bromberg J taking a more cautious approach.[30] He stated that ‘[a] court should always avoid imposing a restraint unless satisfied it is warranted and, where the imposition of a restraint may fetter a statutory discretion, there is even greater reason for not imposing an unnecessary and unjustified restraint’.[31]
Furthermore, Bromberg J noted that the principles for issuing an injunction sought by the applicants also needs to be satisfied. He concluded that he found that the principles were not satisfied.[32] Overall, the Court was not satisfied that granting the injunction was sufficiently justified in this circumstance. This is because the applicants did not satisfy the Court that there was reasonable apprehension the Minister would breach the posited duty of care and that they will have no other opportunity to apply for injunctive relief through administrative law, should the Minister’s decision be deemed invalid.[33]
3. Impact of Sharma
This case certainly creates a significant precedent in the law of negligence and climate change litigation. The recognition from the Federal Court of Australia that a novel duty of care existed between the Minister for Environment and Australia Children, based on the circumstances of this case, opens up a new pathway for citizens to fight against climate change through the court system. This also provides another pathway for the relevant people to challenge decisions made by the Minister for Environment. However, this still does not guarantee that applicants to such litigation will be able to receive injunctive relief, or even compensation, as the Courts are still taking a cautious approach when it comes to granting relief to the applicants in this type of case.
[1] [2021] FCA 560 (‘Sharma’). [2] Ibid 24, [91]. [3] Ibid 25, [94]. [4] See Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 130, 133; Sharma (n 1) 25, [94]. [5]Sharma (n 1) 24-25, [92]. [6] See Sharma (n 1) 26, [98] per Bromberg J citing Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, [102]. [7] (2009) 75 NSWLR 649, [102] (Caltex Refineries). [8] See eg, Carey v Freehills [2013] FCA 954, [313]-[317] per Kenny J. [9]Caltex Refineries (n 6) [103]. [10]Sharma (n 1) 31, [117]. [11] Ibid 35, [145]. [12] Ibid. [13] Ibid 36, [146]. [14] Ibid. [15] Ibid 59, [247]. [16] Ibid 60. [257]. [17] Ibid 64, [288]. [18] Ibid 65 [289]. [19] Ibid 66, [296]. [20] Ibid 69, [312]. [21] Ibid, 70, [321]. [22] Ibid per Bromberg J citing Miller v Miller (2011) 242 CLR 446 at [15] and Equiscorp Pty Ltd v Haxton (2012) 246 CLR 498 at [23]. [23]Sharma (n 1) 101, [490]. [24] See Sharma (n 1) 101, [491]; Donoghue v Stevenson [1932] AC 562, [580]. [25]Sharma (n 1) 101-102, [491]. [26] Ibid. [27] Ibid, 102, [494]. [28] Ibid 102, [496]. [29] Ibid 103, [499]. [30] Ibid 103-104, [501]-[502]. [31] Ibid 104, [502]. [32] Ibid 102-105, [497]-[509]. [33] Ibid 105, [510].