This may be a naïve English practitioner’s reaction (and I can’t claim that the English court’s do ‘duty of care’ analysis very well either) but the idea (at [98]) that there are seventeen different (incommensurable) “salient features” that a court must look at when determining if there is a novel duty of care seems to be a bit difficult from a rule of law perspective. Despite the… surprising… outcome, I’m not sure how the judge can be criticised here – how can any answer be ‘wrong’ applying this test?

How can a lawyer possibly advise his client, both before and even after the alleged tort has occurred?

Did the judge address the issue of a duty to the public (taken as a totality) conflicting with a duty to individuals within the public? It would seem to me that in Canada, a private law duty would be denied on that basis (and others as well).

A brief update- I was too quick in assuming an injunction would be granted. His Honour declined to grant an injunction- see [512]. But the effect of the finding of a duty may be that if the Minister were to approve the coal mine I suspect an injunction could be sought at that time. See [510]: “It is preferable in the interests of justice and in balancing the interests of the parties, that the grant of any injunctive relief that may be appropriate await the Minister making either a proposed decision or alternatively a decision under s 130 and s 133 of the EPBC Act to approve or not approve the Extension Project.”

Regards

Neil

Dear Colleagues;

It is only a first instance decision, but the ruling of Bromberg J in the Federal Court of Australia today, in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/560.html may be of interest. His Honour finds that a Minister of the Crown with power to approve a coal mine development owes a duty of care in negligence to a group representing the children of Australia, and allows a claim for a quia timet injunction to go ahead preventing the Minister giving approval. The basis of course is the contribution that the products of the coal mine will make to global warming. One of the few cases where an injunction to prevent future negligence has been supported (the most prominent Australia example in recent years was a decision of the same judge in Plaintiff S99/2016 v Minister for Immigration and Border Protection[2016] FCA 483;  (2016) 243 FCR 17 in a case involving an asylum seeker.

I see a number of problems with the decision, which will almost certainly be appealed (and probably all the way to the High Court). But perhaps not the least of the problems is that his Honour does not discuss the application of sections 43A and 44 of the Civil Liability Act 2002 (NSW), which would seem to be relevant since the events are occurring in NSW, and apply to decisions of public authorities. (Yes, one could argue these apply to breach and not to duty, but since this is an application for a quia timet injunction one would think issues of possible breach need to be considered.) Not to mention the causation problems…

Anyway, fodder for lots of interesting debate.

Regards

Neil

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