There have been some references in this thread to the “salient features” analysis. Quite apart from the facts of this case, and the application of that analysis in the case, I just wish to make a few brief points about it.
First, and as Allsop P said at [104] in Stavar, there is no suggestion that an Australian court must make findings about the 17 salient features he identified. In some cases only some of the features will be relevant. In other cases
there may be other features which are controlling. What those features are, and what weight to give them, is to be assessed on a case-by-case basis.
Secondly, the purpose of the salient features analysis is to direct the parties’ and the court’s attention to the facts relevant to parties’ relationship. As I understand it, the purpose is to avoid an analysis in which one fixates on concepts
such as “proximity”, which can lead to unproductive definitional debates about what those concepts mean, and distract from the core task of looking at the facts to determine if there is a relationship of a kind which calls for the imposition of a duty of care.
Thirdly, insofar as the Stavar list includes concepts such as “assumption of responsibility”, “control” and “vulnerability”, equal care must be taken in becoming distracted by what those words mean, shorn of the context in which
previous courts have used them to characterise a set of facts in a given case.
Fourthly, the salient features analysis takes place against the background of the decided cases – this is the “incremental” approach referred to by Brennan J (which Neil notes in his email). When one arrives at the frontier of the accepted
categories and decided cases, then a principled approach has to be adopted to determine whether a duty should be imposed. That will necessarily involve an evaluative judgement on extending the law (and minds can and do differ about that in the ‘hard’ cases).
In those cases, advising a client about the likely outcome involves difficulty and uncertainty. But, in my experience, that’s no different to any other area of the law.
Michael
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From: Neil Foster [mailto:neil.foster@newcastle.edu.au]
Sent: Friday, May 28, 2021 12:56 PM
To: Robert Stevens; Matthew Hoyle; 'Jason W Neyers'; obligations@uwo.ca
Subject: Re: duty of care owed by Minister to not approve coal mine
Just in brief response:
1.
As Jason says, the question whether a duty of care can be owed to the whole of the public (or even a subset like “Children now under 18 who will grow up in Australia affected
by climate change”) is a key issue. Bromberg J is conscious that one way of framing this is to consider the question of “indeterminacy” often raised in cases of pure economic loss- see [428]-[473]. But he correctly notes that there are previous comments stressing
the mere size of the class of claimants alone (especially in claims of personal injury) does not mean a claim is “indeterminate”. Still…
2.
In relation to the balancing of the 17 “salient features”, it is true (and a bit embarrassing) that this is a part of the current Australian approach to determining duty
of care in “novel cases”. But I think it could be said that the leap into this discussion at [96] is a bit quick. It could well be argued that a preliminary point to note is that the fundamental approach is still the “incremental” approach set out by Brennan
J in previous years, and the role of the 17 factors will be raise questions to be considered when deciding whether or not the proposed new duty is sufficiently similar to established duties. Stepping back it seems to me, with respect to the judge, that the
outcome here is so far removed from previously recognised categories that something has gone wrong with the analysis.
3.
I tend to also agree with Rob’s analysis here.
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle Law School
College of Human and Social Futures
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
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From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Date: Friday, 28 May 2021 at 1:26 am
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>, "jneyers@uwo.ca" <jneyers@uwo.ca>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: duty of care owed by Minister to not approve coal mine
Q1 Do we have a right against persons generally that they protect us from other people digging up coal?
A: No
Q2 Absent legislation stating the contrary, do we have a different set of rights against the state?
A: No
Q3 Do citizens under the terms of Environment Protection and Biodiversity Act 1999 (Cth) acquire a special right against the state to such protection?
A: No.
It is, of course, almost unbelievable that Australia (Australia!) still permits the mining of coal at all. But, I think the judge may have let that get in the way of applying proper principles.
The seventeen incommensurable factors to be taken into account might almost have been invoked by a special agent judge, planted to undermine the credibility of this policy-based weighing approach
to "duty" (sic).
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 27 May 2021 15:51
To: 'Jason W Neyers' <jneyers@uwo.ca>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: duty of care owed by Minister to not approve coal mine
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?
Matthew Hoyle
Barrister
One Essex Court
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From: Jason W Neyers <jneyers@uwo.ca>
Sent: 27 May 2021 13:21
To: obligations@uwo.ca
Subject: RE: duty of care owed by Minister to not approve coal mine
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).
From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: Thursday, May 27, 2021 3:49 AM
To: obligations@uwo.ca
Subject: Re: duty of care owed by Minister to not approve coal mine
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
NEIL FOSTER
Associate Professor, Newcastle Law School
College of Human and Social Futures
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/
, http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University Rankings 2021
I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.
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From: Neil Foster <neil.foster@newcastle.edu.au>
Date: Thursday, 27 May 2021 at 5:32 pm
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: ODG: duty of care owed by Minister to not approve coal mine
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
NEIL FOSTER
Associate Professor, Newcastle Law School
College of Human and Social Futures
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/
, http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University Rankings 2021
I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.
CRICOS Provider 00109J
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