Thinking | 11 June 2021

Duty of care to consider climate impacts on children

By Meg Lee

The Federal Court of Australia has recently ruled that the Commonwealth Minister for the Environment owes Australian children a duty to take reasonable care to avoid causing them personal injury when deciding whether to approve controlled actions, such as the White Coal mine expansion, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The class-action ruling in Sharma by her litigation representative Sister Marie Bridgid Arthur v Minister for the Environment [2021] FCA 560 represents a landmark judgment on climate change and its future impacts on society and will require decision-makers to now take reasonable care when making statutory decisions to consider foreseeable harm that may arise.

The case is one of 19 climate-related third-party cases are currently listed in the Federal Court and is expected to give plaintiffs’ significant hope that the Courts are prepared to make novel decisions in the face of perceived inaction by governments on climate change.

The Claim

In Sharma, a group of eight teenagers (Children), via their litigation guardian Sister Brigid Arthur, claimed that:

  • the Commonwealth Minister for the Environment owed both them and all other Australian children a duty of care at common law to take reasonable care not to cause them personal injury when exercising her powers under section 130 and 133 of the EPBC Act; and
  • an interlocutory injunction should be granted to restrain the Minister from exercising those powers in a manner that would breach that duty (by approving Whitehaven’s proposed Vickery coal mine extension project in NSW).

The Minister’s Response

Minister Sussan Ley MP, in the Statement in Response, denied that she owed such a duty of care on several bases.

Firstly, she argued that the proposed duty of care was incoherent with the EPBC Act and, more generally, with public law principles. She argued that the imposition of such a duty would ‘distort’ the statutory tasks required by ss 130(1) and 133(1) of the Act by elevating as a paramount, and apparently overriding, consideration the potential for the controlled action to cause relevant harm.

Secondly, the Minister argued that, if the duty was recognised, it would be a duty owed to such a broad class of persons – effectively all living persons (perhaps excluding the elderly) and perhaps also to children yet to be born – and that a class of such breadth is not one which the common law could sensibly recognise, as it would lead to indeterminate liability.

Thirdly, the Minister denied that any future breach of the duty would have the necessary causal nexus with the alleged harm. That is, the contribution of the Extension Project to future global greenhouse gas emissions does not provide a sufficient factual foundation for the allegation that if the Extension Project goes ahead, it is ‘more likely’ that the Applicants and the represented children will suffer the relevant harm.

Reasonably foreseeable harm

Crucial to the establishment of any duty of care under principles of negligence at common law is that that the harm must be reasonably foreseeable.

In this regard, a significant volume of evidence was provided to the Court from the Intergovernmental Panel on Climate Change, the CSIRO, the Bureau of Meteorology and the Australian National University’s Climate Scientist. Justice Bromberg said the evidence showed the foreseeable harm the children could face due to global heating ‘may fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next. [at para. 293]

He highlighted the fact that ‘one million Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital’ and that ‘many thousands will suffer premature death from either heat-stress or from bushfire smoke.’ [at para. 291]

Much of the evidence was not in dispute. The Minister accepted that the Earth’s surface temperature is increasing and that humans are primarily responsible. She also accepted that average surface temperatures will likely continue to increase, and Australia will experience more drought, sea level rises and extremes of heat, rainfall and fire-related weather. The Minister accepted that increases in temperature affect the environment, the economy and society and that the climate exacerbates inherent risks and introduces new risks in the context of heatwaves, droughts, bushfires, floods and tropical cyclones all being part of the Australian climate experience.

What was disputed by the Minister was the significance of the temperature increase and that her conduct will make a material contribution to the alleged harms occurring even if it is the case that climate change bears responsibility for those harms.

The Court heard that the expansion of the Vickery coalmine in northern NSW could lead to an extra 100 million tonnes of CO2 over 25 years – about 20% of Australia’s annual climate footprint – being released into the atmosphere as the extracted coal is shipped overseas and burned to make steel and generate electricity.

The Court reiterated that the risk of injury flowing from the Extension Project need only be a real risk. A foreseeable risk may be a remote risk. The Court accepted [at para. 253] that,

‘the prospective contribution to the risk of exposure to harm made by the approval of the extraction of coal from the Extension Project may be characterised as small. It may fairly be described as tiny. However, in the context of there being a real risk that even an infinitesimal increase in global average surface temperature may trigger a 4℃ Future World, the Minister’s prospective contribution is not so insignificant as to deny a real risk of harm to the Children. The risk of harm in question is reasonably foreseeable even without regard to the unparalleled severity of the consequences of that risk crystallising.’

The Court affirmed that the evidence demonstrated that ‘a reasonable person in the position of the Minister would foresee that, by reason of the Extension Project’s effect on increased CO2 in the Earth’s atmosphere and the consequential increase in global surface temperatures’ [at para. 235], each of the Children would be exposed to a risk of death or other personal injury.

The Court held that such injury included both mental and physical injury, including ill-health or death. However, the Court stopped short of finding that the duty extended to property damage or economic loss.

This foreseeable risk, combined with ‘the Minister’s control over the potential harm in question, the extent of the vulnerability of the Children to that harm and the extent to which the Children rely upon the Minister to avoid the potential harm they face’ was enough to establish the duty of care in this case.

The New Duty

The Court stated that whether a novel duty of care exists is to be ascertained by reference to a ‘multi-factorial assessment in which considerations (salient features) relevant to the appropriateness of imputing a legal duty upon the putative tortfeasor are assessed and weighed’. Seventeen such salient features were considered by the Court (relying on earlier decisions) in balancing whether or not a new duty should be found. These included factors usually considered in negligence claims such as foreseeability of harm, but also included importantly:

  • the degree and nature of control able to be exercised by the defendant to avoid harm;
  • 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;
  • the degree of reliance by the plaintiff upon the defendant;
  • the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
  • the nature or the degree of the hazard or danger liable to be caused;
  • knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
  • any potential indeterminacy of liability;
  • the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
  • consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
  • the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

In the context of the statutory decision to be made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Court also held that it is important to carry out a close examination of the terms, scope and purpose of the relevant statutory regime and, while the ultimate question is whether a requisite relationship exists between the statutory authority and a class of persons, the criteria for assessing whether that relationship exists, is to be found in the salient features of that relationship.

The statutory regime in question included that section 136(2)(a) of the EPBC Act requires that in approving or not approving a controlled action, the Minister must take into account the ‘principles of ecologically sustainable development’, which in turn in s 3A include the ‘precautionary principle’.

The Court found that the applicability of the ‘precautionary principle’ to the Minister’s decision-making, ‘attunes both the foresight and response required of a reasonable person in the Minister’s position to the risks that the plausible scientific evidence confirms will be faced by the Children’ (at para. 256).

After weighing up the salient features of the relationship between the Minister and Australian children, Bromberg J found that both that the Minister:

  • owed a duty at common law in the terms sought; and
  • was required, as a relevant mandatory consideration, to take into account the potential harm to Australian children under administrative law principles when making the approval decisions under the EPBC Act.

In making the finding that a duty of care was owed, the Court crystallised a novel duty of care which it found was to be owed due to ‘contemporary social conditions and community standards’ which expect that a reasonable Minister for the Environment ought have Australian children in contemplation when facilitating the approval of a project that will result in the emission of 100 megatonnes of CO2 into the Earth’s atmosphere.

The duty of care was found to be owed to the class that was sought, being all Australian children, to protect them from reasonably foreseeable injury arising from the effects of climate change.

Breach and injunction

The Court did not grant the application for an injunction restraining the apprehended breach on the basis that the Minister was yet to make a decision on the approval and therefore apprehended breach could not yet be shown. Rather, Bromberg J considered it more appropriate, including because the harm alleged was not imminent, to assess whether any breach of the duty of care should be restrained once it is clear what the Minister proposes to do regarding the approval.

In doing so, the Court commented that there may be conditions able to be imposed on the approval of the project that may discharge the duty of care. This opens the way for the Minister to proceed to approve the project, for example, subject to conditions requiring significant offsets to be purchased.

Significance of decision

The decision is important for several reasons:

  • It is the first decision in Australia (and indeed anywhere in the world) in which such a duty of care in relation to the effects of climate change has been recognised.
  • It has the specific consequence that the Commonwealth Environment Minister, when exercising their functions under sections 133 and 136 of the EPBC Act, is now required as a mandatory consideration, to consider the future impacts of the projects on the climate and consequently on the health of younger generations.
  • It sets a precedent that will require a change in approach by all decision-makers who approve projects with significant emissions profiles. They will now need to ensure they consider the reasonably foreseeable impacts of the project (and its emissions) on children due to climate change.

However, because the decision did not determine whether or not granting the approval in the circumstances would amount to a ‘breach’ of the duty, decision-makers are somewhat left in the dark about the circumstances that would constitute a breach of the duty and give rise to damages.

According to Orders made on 4 June 2021, the parties are now to provide their final submissions to the Court by 18 June 2021. The Minister has extended the statutory deadline for making a decision on the project under the EPBC Act until 9 July 2021.

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