DOES a government minister owe a duty of care in respect of decisions made in the exercise of statutory power which may, in the future, contribute to the risk of harm posed by climate change? In a landmark decision, the Australian Federal Court held in 2021 that the Commonwealth Minister of Environment owed a duty to take reasonable care when exercising her statutory discretion to approve an extension to a coal mine in New South Wales to “avoid causing personal injury or death to persons [under the age of 18] ordinarily resident in Australia at the time [of the proceedings] arising from emissions of carbon dioxide into the Earth's atmosphere”. However, celebration of the decision amongst the applicants, climate activists, scientists and individuals generally concerned with the current climate crisis was short-lived; in March 2022, the Full Court of the Federal Court of Australia overturned the decision: Minister for the Environment v Sharma [2022] FCAFC 35 (Australia). In a judgment extending to nearly 300 pages, various reasons are cited for finding that the minister does not owe a duty of care in the terms proposed by the trial judge. The Full Court's judgment was not unexpected; attempts to extend liability in negligence for climate change (as distinct from environmental pollution by state or private actors) have been unsuccessful in other common law jurisdictions and the Full Court's reasoning coheres with the established principles of tort law. The judgment does, however, raise wider issues regarding the steps residents can take to hold their governments to account for their contribution to climate change. The Full Court observed that the time has come (or is imminent) in which apex courts or legislatures are forced to alter existing tort principles to create “sustainable duties of care, modifying concepts such as ‘sufficient closeness and directness’ and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations” (at [754]). The judgment also highlights the role that human rights can play in such cases.

In February 2016, an application was made to the federal Minister for the Environment that she exercise her power under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve an extension to a coal mine in northern New South Wales (at [19]). It was predicted that the extension of the mining project would ultimately produce 100 million tonnes of carbon dioxide (CO₂) primarily by combustion of the coal in purchasing countries (at [19]). The issue of approval of the extension would ordinarily be one for the state authorities (Australia being a federal jurisdiction) and how the matter came before the minister for final determination is not relevant for instant purposes, though it is important to note that the state authorities had conducted a detailed assessment of the proposed expansion of the mining venture which included a consideration of the impact of the extension on greenhouse gas emissions, global warming and climate change (at [24]).

Before the minister could make her decision, the applicants – eight Australian children – commenced proceedings in the Federal Court of Australia on their own behalf and on behalf of all children ordinarily resident in Australia claiming that the minister owed them a duty to take reasonable care in the exercise of her power to approve the mine to avoid causing them personal injury or death arising from emissions of carbon dioxide into the Earth's atmosphere. The trial judge found that the minister did owe the applicants a duty of care as proposed but declined to issue the quia timet injunction sought (at [510] of the trial judgment). The minister appealed, and the Full Court unanimously upheld the appeal. After the trial judge's ruling but before the Full Court had heard the appeal, the minister granted approval to the extension of the mine (at [6]).

It was the applicants’ case that the expansion of the mine would lead to an increase in atmospheric CO₂ levels, even if only by a tiny fraction (at [115]). This, in turn, would contribute to the rise in global average surface temperatures, thereby increasing the risk that Earth will be “propelled into an irreversible … trajectory” towards a global temperature of 4 degrees Celsius (or more) above pre-industrial levels and, with that increase, towards catastrophic environmental, social and health outcomes (at [106]). Since the minister was yet to decide whether to approve the extension at the time the applicants brought proceedings before the Federal Court, issues of breach , causation and damage were yet to arise. Indeed, the exact nature of causation and damage (assuming both a duty and breach) were, on the applicants’ case, unlikely to be known for decades (at [109]).

Each member of the Full Court emphasised the problem with “separating questions of liability for negligence from questions of damages” (at [780]). Indeed, courts in the UK and Australia have long cautioned against declaring a duty of care “in the ether” (at [536]). For instance, Chief Justice Allsop noted that, by focusing on duty but not breach, the trial judge failed to appreciate that at the point of breach, the courts would be called upon to adjudicate on issues of “core policy” including, how the Australian Government should address risks of global warming and climate change, which was plainly incompatible with the proper function of the courts (at [248]). Justice Wheelan similarly emphasised that the duty would result in matters of “national politics, national economic considerations, Commonwealth/state relations, international relations, and the balancing of competing considerations of public interest” being raised as questions of fact when deciding whether the minister has breached their duty which are questions unsuitable for adjudication by a court (at [836]). In more evocative terms, Justice Beach likened the trial judge's finding of a duty to the planting of “a seed of action … but envisaging that the seed may not fulfil its Aristotelian potential of a fully formed tort for many decades, if at all” (at [753]).

There was also a distinct lack of proximity. Having regard to the power being exercised, Justice Beach held that there was “no physical, temporal or relational closeness between the Minister … and the claimant class” (at [695]). Accordingly, the applicants had failed to demonstrate the requisite sufficient closeness and directness Lord Atkin identified in Donoghue v Stevenson [1932] A.C. 562 as being necessary for a duty to arise. Finally, while the minister disputed the trial judge's finding that it was “reasonably foreseeable as a possibility that careless conduct of any kind on the part of the [minister] may result in damage of some kind to [the applicants]”, both the Chief Justice and Justice Beach held that, given the general level of abstraction at which reasonable foreseeability is considered at the stage of distilling a duty (as opposed to when considering causation) and in light of the evidence which was unchallenged at trial, it was not possible to conclude that the trial judge had erred (at [332], [423]).

There are key differences between the principles applicable in Australian and English tort law, for instance, in the approach to novel duties of care. Australian courts have rejected the Caparo test and have, instead, adopted the multi-faceted “salient features” approach to identify the similarity to recognised duties. Further, Australian courts are yet to adopt conclusively the notion of a material contribution to risk as expounded by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 A.C. 32 which, as the Full Court observed would be the likely approach to causation in this case (see, for instance, at [433]–[438]). Nevertheless, there are important lessons from the proceedings in Sharma both for UK courts considering possible tortious liability of government ministers and international courts currently considering human rights claims relating to the effects of climate change.

The Australian Full Court's findings with respect to the minister's lack of control over the harm and the centrality of core policy at the point of breach are likely to find resonance before the courts in England and Wales should applicants claim an analogous novel duty of care. Similarly, issues of proximity and questions of reasonableness which are relevant under the Caparo test were also considered by the Full Court and found to point against a finding of a duty of care (see e.g. at [245]).

The applicants’ reliance on tort to avoid harm emanating from climate change may, at least to some extent, be explicable by the fact that Australia does not have a federal Bill of Rights instrument. In contrast, public authorities in the UK are obliged, by virtue of the Human Rights Act 1998 (HRA), to exercise their powers consistently with those rights in the European Convention on Human Rights (ECHR) which are set in Schedule 1 to the HRA which include the right to life (ECHR, art. 2), the right to freedom from torture and inhuman or degrading treatment (art. 3) and the right to private and family life (art. 8). In ongoing litigation, six Portuguese children have filed a complaint before the European Court of Human Rights (ECtHR) against Portugal and 33 other Member States (including the UK) alleging, inter alia, that the failure of those states to take sufficient action to keep the rise in post-industrial global temperature below 2 degrees Celsius has violated their rights to life and private life (Duarte Agostinho and Ors v Portugal and Ors, Communicated Case of 13 November 2020, App No. 39371/20). In contrast to the arguments made on behalf of the applicants in Sharma, the applicants in Duarte Agostinho submit that climate change currently poses a risk to their lives and health, and this will only worsen with time. Separately, an association of senior women has filed a complaint before the ECtHR similarly arguing that the Swiss authorities have violated the positive obligations it owes them under Articles 2 and 8 of the ECHR by failing adequately to address climate change (Verein KlimaSeniorinnen Schweiz and Ors v Switzerland, App No. 53600/20). As with the applicants in Duarte Agostinho, and in contrast to the applicants in Sharma, the elderly complainants in Verein KlimaSeniorinnen Schweiz argue that they have already suffered harm because of climate change.

While the likely outcome of both sets of complaints before the ECtHR is, at this stage, anyone's guess, several aspects of the proceedings in Sharma may be of relevance. First, as noted, the applicants in the complaints before the ECtHR have argued that they have already suffered damage and their complaints are against the state as a whole, as distinct from a specific minister exercising a limited statutory power whose possible breach is related to an indeterminate harm at an indeterminate time. Issues of proximity and harm are, therefore, unlikely to be as significant in the ECtHR proceedings as they were in Sharma. Nevertheless, questions regarding foreseeability and control over the harm will no doubt assume importance before the ECtHR, particularly given that climate change is a global issue.

While the law of negligence may not be the answer for individuals seeking to compel states to act to address the current climate crisis and to prevent future catastrophe, human rights law is increasingly invoked by litigants to fill some of that lacuna in protection. Only time will tell whether the ECHR, as interpreted by the ECtHR, provides such protection. As for the law of negligence, concepts such as “sufficient closeness and directness” and indeterminacy “may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges, and where more than direct mechanistic causal pathways are involved” (at [754]).