Very nice.

 

If I had my way, I’d have Taz on our Law School’s Board of Visitors.

 

(Not sure if you’re on  the ODG mailing list, Bill.  But across the Tasman, the Full Court just overturned Sharma. Probably inevitable.)

 

Cheers,

Graeme

 

Dear Colleagues;

Today the Full Court of the Federal Court of Australia overturned a decision of a trial judge that a government Minister owed a duty of care in the law of negligence in relation to climate change: see Minister for the Environment v Sharma [2022] FCAFC 35 (15 March 2022) . There is a short summary of the case prepared by the court here.

Colleagues may recall that the trial judge, Bromberg J’s, decision was noted in earlier ODG discussions- see here for my previous post online at Steve’s very helpful collection of ODG posts.

Each of the three appeal judges here, Allsop CJ, Beach J and Wheelahan J gave a slightly different set of reasons for finding that no duty of care was owed. I found Allsop CJ’s the most complete and helpful, but will briefly mention others.

By way of summary of the trial decision, Bromberg J issued a declaration that the Minister for the Environment owed a common law duty of care to all residents of Australia under the age of 18, in connection with the Minister’s decision to approve a coal mine development. The duty related to personal injury caused in future years by the impacts of anthropogenic climate change, to which the extracted coal would make some contribution in both its extraction and future use.

For Allsop CJ the main reason to deny a duty is that the decision involved high issues of government policy which were not suitable for judicial determination. He summarises this and his other reasons as follows at [7]:

 

First, 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.  Secondly, the posited duty is inconsistent and incoherent with the EPBC Act.  Thirdly, 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’s detailed legal reasons commence at [206] after discussing some factual points. There are some interesting comments about how, despite the regular use of the “salient features” approach in duty of care cases in Australia today (usually with reference to the Caltex v Stavar factors), this is not always the right starting point- see eg [211]. The relationship between the parties is fundamental- [212]. Despite the “policy/operational” distinction being regularly criticised, it remains a useful point to note the significance of the issue- see [235]-[236]:

 

there will be in some decisions of a public authority factors that make the law of negligence an inapposite or unsuitable vehicle for examining the choices and judgements involved.

 

Coherence is also referred to at [245]:

 

the duty must be coherent with the underlying constitutional system of federally structured democratic responsible government and the domain of the Judicature therein in the quelling of controversies between subjects and subjects,

 

These various factors make this sort of decision not one that the courts should be making:

 

[251] The authorities to which I have referred make clear that so-called core policy, or at least the making of it, is not, or is unlikely to be, the province of the Judiciary in its role of quelling private controversies or controversies between individuals and government.

 

A duty of care here would be inconsistent with the provisions of the relevant legislation, which had a narrowly prescribed set of factors the Minister had to consider (and Allsop CJ as well as Wheelahan J held that “human safety” was not a legitimate factor on that list.) See [268].

 

Some comments were made by his Honour about causation. All of the court noted that this was a different issue from duty, but no ruling on duty could have been given without some preliminary view being taken on whether the Minister’s approval would foreseeably cause the relevant harm. As someone who has just had a piece published on Bonnington and “material contribution” (see here for those interested), I was personally pleased to see that his Honour’s discussion of the case at [310] and ff was on all fours with the view I had put forward. He also notes that the type of “extended causation” represented by Fairchild (increased risk) has not been accepted as part of Australian law: see [321]-[326]. Other members of the court also discuss causation briefly, and of course Professors Wright and Stapleton are cited.

 

Allsop CJ concludes that in the “undemanding” sense required by current law, the risk of physical harm was foreseeable- see [333]. But as well as finding no duty on the grounds of policy decision-making and incoherence, he also concludes duty is denied on the grounds of lack of control, [334]-[337], and that the class of plaintiffs was not relevantly vulnerable, [338]-[340], and a duty of this sort would create indeterminate liability, [341]-[343].

 

Beach J differs on some of these points, but in the end finds against a duty on the grounds of insufficient “closeness and directness” ([678]-[701]) and indeterminacy ([702]-[742]).

 

Wheelahan J doubts in any case whether a declaration should have been issued in this negligence claim- see discussion concluding at [782]. But he also finds no duty on the basis that the statute does not create a relevant relationship between the Minister and the applicants, and also that in any event it would not be possible to formulate appropriate standards to determine breach- see his Honour’s summary at [836]. He also does not think the harm was reasonably foreseeable (differing from the other two judges on this issue)- see [869] ff.

 

There are other issues that arose- I have skipped over some comments on the facts found by Bromberg J, though the appeal judges note with some apparent surprise that the Minister did not present any expert evidence to counter the evidence led by the applicant’s expert witness. It may be that the Minister’s counsel took the view that challenging the expert evidence would have been politically contentious, and that the case could be won on the common law duty issues. As it turns out this was correct, unless of course there is a successful application for leave to appeal to the High Court and then a successful appeal. I see some today are suggesting the High Court would not grant leave- I think this may be right. My own view is that whatever one’s views on the substantive issues, the matter is not one that should be decided in a negligence action and the Full Court has been correct to overturn the lower decision.

 

Regards

Neil