Leigh-Dodds, Gemma; Meath, Lauren --- "Inching Forward: An Incremental Approach to Climate Litigation and Novel Duty of Care Claims" [2023] PrecedentAULA 30; (2023) 176 Precedent 20

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Inching forward

An incremental approach to climate litigation and novel duty of care claims

By Gemma Leigh-Dodds and Dr Lauren Meath

In recent years, there has been a flurry of litigation filed against the Australian Government and large corporations due to their alleged contribution to climate change, seeking remedies for loss and damage suffered. These cases form part of a larger emerging body of jurisprudence, both nationally and internationally which, if successful, could see significant damages awarded to the vulnerable people most egregiously impacted by climate change.

However, using duty of care arguments in tort to address a modern dilemma like climate change through the courts brings challenges. To date, a major barrier for claimants has been establishing a path for damages where the defendant is just one of many potential responsible entities. In addition, claimants face hurdles where the tort may not be ‘complete’, as the extent of harm is yet to be fully realised and may not eventuate for decades. Accordingly, despite the proliferation of climate change litigation, there have been relatively few cases explicitly invoking tort law as their primary cause of action^[1] and – following some sobering judgments of superior courts – it is hard to avoid a depressing contention that tort law has thus far shown itself to be unsuited to grapple with the existential challenge of climate change.

A more pragmatic assertion, however, and the one we propose in this article, in accordance with key theories of tort law, is that the duty of care principle develops incrementally and thus will adapt to respond to climate change. Prospective claimants can look to the historical developments of duty of care in relation to product liability, psychological harm and workplace harms such as asbestosis, for example, which took into account new and, at the time, unprecedented damage.

This article examines several cases forging a possible path forward in the complex legal context of climate change, to highlight instances where courts have considered drawing the necessary connections between duty, breach and harm to support a duty-based cause of action.

International jurisdictions in which key human rights frameworks have been incorporated into domestic law have already made positive findings in relation to the existence of a duty of care in relation to greenhouse gas (GHG) emissions.^[2] With these cases in mind, and by approaching duty of care with an incremental progression, possibilities begin to open up. On this basis, for practitioners operating within the confines of the common law, the task is to apply the best science available to satisfy each of the basic elements of the alleged tort.

The question is therefore not if, but when, duty of care claims will be able to provide claimants with sufficient redress for climate-related damages, and confirm the legal doctrine’s role as an important means of holding corporates and governments to account.

CLIMATE IMPACTS AND DAMAGE

The impact of climate change is already being felt globally, most intensely by developing countries, those living in poverty and, in developed countries like Australia, by First Nations people living in remote and climate-exposed country.^[3]

These are existing harms, but also, sadly, only the beginning of the damage that these communities are likely to experience, as the full effect of the Anthropocene and global warming of upwards of 1.5 degrees takes effect.^[4] While it is difficult to make predictions, the latest scientific modelling shows that within the lifetimes of today’s children and younger people many major cities and communities will experience catastrophic events, such as flooding and fire.^[5] The ramifications are that many homes, cultural sites and income streams will be lost or no longer viable.

Bold and creative litigation is necessary to address these issues. The below review suggests that, while challenging, this is not an impossible task.

CASES TESTING CLIMATE CHANGE BASED ON A DUTY OF CARE

The Netherlands

Urgenda Foundation v State of the Netherlands^[6]

Internationally, human rights frameworks have already been used to advance the principle that entities have a duty of care in connection with their emissions.

In 2015, the Urgenda Foundation, on behalf of 900 Dutch citizens, sued the Dutch government for failing to take sufficient measures to prevent or limit dangerous climate change. In the first instance decision, the Hague District Court found that the state had a duty of care to take mitigation measures against climate change as a result of frameworks such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights (ECHR).^[7] Appeals by the Dutch government failed, with the Netherlands’ Supreme Court ultimately finding that a duty of care to mitigate climate risk does exist under the ECHR.

The People v Shell^[8]

Building on the above decision is the case of The People v Shell. The Hague District Court likewise found Shell liable for causing dangerous climate change, and agreed that the company owed 17,0000 co-plaintiffs a duty of care under international frameworks, such as the ECHR. The Court also ruled that Shell must reduce its C02 emissions by 45 per cent within ten years.

Subsequent judgments in other jurisdictions have similarly examined the roles and responsibilities of significant contributors to climate change. However, in common law jurisdictions, the requirements of a cause of action in tort – that there be a complete tort in order for claimants to obtain damages – has made establishing a duty of care far more challenging.

New Zealand

Smith v Fonterra^[9]

In Smith v Fonterra Co-Operative Group Ltd (Smith v Fonterra), the plaintiff, who identified as a person of Maori descent, brought a suit against several private corporate defendants operating facilities emitting GHG, asserting that sites of customary, cultural and spiritual significance to him were being negatively impacted by the resulting global warming. The plaintiff sought orders that the companies cease their GHG emissions by 2030 based on three separate causes of action, including a novel tort. The pleading of the proposed new tort advanced the proposition that the defendants owed the plaintiff:

[INDENTED QUOTE]

‘a duty, cognisable at law, to cease contributing to damage to the climate system, dangerous anthropogenic interference with the climate system, and adverse effects of climate change through their emission of greenhouse gases.’^[10]

[END INDENTED QUOTE]

In consideration of the plaintiff’s claim, Wylie J noted that the pleading ‘made no attempt to refer to recognised legal obligations, nor to incrementally identify a new obligation by analogy to existing principles ... because such attempt cannot readily be made.’ Despite this, Wylie J was reluctant to conclude that ‘a recognition of a new tortious duty which makes corporates responsible to the public for their emissions,’ was untenable, stating ‘it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial.’^[11]

Subsequently, however, the New Zealand High Court and Court of Appeal struck out all causes of action.^[12] In answering the question posed at the start of their judgment ‘[w]hat should be the response of tort law to climate change?’^[13] their honours found that the role of the courts lies in ‘supporting and enforcing the statutory scheme for climate change responses’ rather than developing ‘a parallel common law regulatory regime’.^[14] The case is currently waiting on an appeal as to whether the Court of Appeal was correct to dismiss the appeal and allow a cross appeal. Smith v Fonterra highlights the need for courts to be stepped through a logical and scientific basis for expanding the circumstances in which a duty of care will be found to be owed.^[15]

Australia

The Sharma class action

There has been significant analysis of the initial proceeding, Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment,^[16] in which the Federal Court of Australia was satisfied that the Minister for the Environment (Cth) owed Australian children (the Children) a novel duty of care to exercise her approval powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) with reasonable care so as not to cause them harm arising from the impacts of climate change.

However, the subsequent appeal decision of the Full Court of the Federal Court in March 2022^[17] rejected the premise that such a duty and interjection from the courts could be imposed under law before damage exists. Each member of the bench came to this conclusion differently, but all placed emphasis on the incomplete nature of the tort:

• Chief Justice Allsop considered the Children seeking to impose a duty ‘before damage is suffered and before causal connection to damage (as distinct from risk) even exists’. This created a temporal and geographic ‘disconnection’, which highlighted the true nature of the relationship between the Children and the Minister – one that called forth a political duty, but not a legal duty of care.^[18]

• Justice Beach described the difficulty his Honour had in ‘declaring in the ether the existence of a duty of care, divorced from any question of breach, causation and damage’.^[19]

• Justice Wheelahan similarly stated:

• ‘A duty of care does not exist in the air. A duty to exercise reasonable care to avoid the risk of injury must be referrable to an injury that is capable, by the application of legal principles, of being attributed to an act or omission of the alleged tortfeasor.’^[20]

Despite agreeing that a duty of care should not be imposed, the March 2022 decision – and the reams of judicial analysis grounding this Full Court judgment – does not undermine the view that tort law progresses incrementally, leaving ground to build on for future climate litigation.

First, each of the three judges accepted the factual findings in the initial decision that extension of the mine would contribute to an increase in C02 emissions, and the disastrous consequences that climate change will have, as reflective of scientific consensus on global warming, rejecting the Minister’s challenge to this.^[21] Those findings, worth reading in full, stand. The Court’s acceptance of climate science should give confidence to Australian litigants.

Secondly, in regard to questions of policy, Beach J, in contrast to Allsop CJ, found that:

[INDENTED QUOTE]

‘where the Minister may create a danger by exercising her statutory power in favour of approving a project, policy is no answer to denying the duty unless the Act itself makes such policy questions so fundamental to the exercise of statutory power that such a conclusion is compelling.’^[22]

[END INDENTED QUOTE]

Thirdly, the bench – Allsop CJ and Wheelahan J in particular – distinguished between liability arising from a ‘tiny contribution’ and a material contribution to the overall risk of harm.^[23] Future cases, where contribution to harm is established as being material, may still succeed.

Finally, their Honours noted that the High Court of Australia may need to be called on to provide guidance for modifying concepts under tort and duty of care, but at the same time conceded that those concepts:

[INDENTED QUOTE]

‘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’.^[24]

[END INDENTED QUOTE]

This is a strong indication that judges are looking for ways that the law can morph to address the modern-day requirements of climate change litigation.

A POTENTIAL WAY FORWARD

Cases currently on foot also provide useful fodder to litigants considering how to present a court with sufficient information to support their claim.

Germany

Lliuya v RWE AG^[25]

In 2015, a Peruvian farmer filed a letter of complaint against Germany’s largest energy producer over the contribution of its activities to climate change. The plaintiff claimed that his home is acutely threatened by flooding caused by the melting of glaciers into a nearby lake as a direct result of global warming. The plaintiff alleged that RWE has been a major emitter of GHG, which are causing glacial retreat and increasing the risk of flooding in the area. While this case does not rest on the concept of a duty of care – instead being based on ‘disturbance’ – it does proffer a practical approach to causation where global warming cannot be attributable to any one person or actor.

In calculating damages, the plaintiff submitted that RWE should pay £14,250 for its contribution to global warming, which represents 0.47 per cent of the estimated repair cost in case of flooding. Importantly, according to the Business & Human Rights Resource Centre, ‘this figure corresponds to the Institute of Climate Responsibility’s estimation that RWE is responsible for 0.47 per cent of global warming emissions from 1751 to 2010’.^[26]

While the initial decision held that it was impossible to establish causation, the Higher Regional Court in Germany accepted on appeal in November 2017 that the plaintiff’s legal arguments had merit, and confirmed that it would proceed to receive evidence on the case and consult experts in cooperation with both parties to measure the defendant’s contribution to the risk of flooding.^[27]

The case is ongoing, but the Court’s acceptance of evidence connecting the harm suffered to the emissions released by a company that does not operate in the same country provide encouraging guidance to litigants putting forward a logical pathway to proof of damage.

Other cases appear to already be following this approach. On 1 February 2023, a case was filed on behalf of four inhabitants of Pari, an Indonesian island, whose homes and incomes were affected by a 2018 flood, against Swiss-based cement producer Holcim for its alleged contribution to the global climate crisis.^[28] Among other remedies, the plaintiffs are demanding the company co-finance adaptation measures on Pari and, significantly, pay ‘loss and damage’ for Holcim’s role in the climate crisis ‘calculated as proportional to the company’s contribution to overall climate damage’.^[29]

Australia

Pabai Pabai v Commonwealth of Australia (Pabai)^[30]

The Pabai class action was filed in Australia in October 2021. In this representative proceeding, the two applicants, who identify as Torres Strait Islanders from the Gudamalulgal Nation and hold native title rights and interests, are seeking declaratory relief that the Commonwealth owes a duty of care to protect Torres Strait Islanders, their way of life, and the Torres Strait from the current and projected impacts of climate change, and is in breach of that duty, along with injunctive relief to enforce that duty and damages.^[31]

Like the Sharma class action, Pabai seeks to address harm arising from climate change and global warming, honing in on decisions made and actions taken by the Commonwealth, which the applicants in Pabai say have failed to limit global temperature increases resulting in harm.

Unlike the Sharma class action, Pabai appears anchored by the fact that this harm (while continuing and increasing) has already begun to occur, with rising sea waters and increasing storms as a result of global warming causing loss and harm to homes, food crops, ancestral grave sites, the surrounding marine environment, and Ailan Kastom, ‘the body of customs, traditions, observances and beliefs of Torres Strait Islanders’.^[32] This difference distinguishes it and means the plaintiffs may overcome the challenges around the tort being incomplete.

CONCLUSION

Climate change is unprecedented, but tort law has adapted and changed to accommodate complex legal issues and changing human experience before. As noted by academics, if ‘scientists are even remotely correct in their assessment of harms to be expected from GHG emissions, then climate change will enter prominently into tort law’s evolutionary dynamics’.^[33]

It is important that litigants focus on how to present an iterative and logical series of steppingstones to the court, drawing from the best available science and international precedents to address the impacts of climate change.

Gemma Leigh-Dodds is a senior associate in Slater and Gordon’s class actions team. Dr Lauren Meath is a lawyer with experience in class actions. They both specialise in consumer, tort and public interest law. EMAIL [e-mail] or [e-mail].

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^[1] J Setzer and C Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (Report, 2021), Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy. <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf>.

^[2] The authors note there is currently no Federal Human Rights Act in Australia and, were one to be introduced, it would significantly improve the prospects of climate-based litigation in Australia. There is currently an inquiry into Australia’s human rights framework, and whether changes to that framework should be made. See: Parliament of Australia, Inquiry into Australia’s Human Rights Framework (2023) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework>.

^[3] See Ecosystems Division et al, ‘Poverty and Climate Change: Reducing the Vulnerability of the Poor – A Contribution to the Eighth Conference of the Parties to the United Nations Framework Convention on Climate Change’ (Consultation draft, 2002), Knowledge Repository – UNEP <https://wedocs.unep.org/20.500.11822/30473>.

^[4] IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability (Report, 2022). Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press https://report.ipcc.ch/ar6/wg2/IPCC_AR6_WGII_FullReport.pdf, 8.

^[5] Ibid, 9–15.

^[6] [2015] HAZA C/09/00456689 (Urgenda Foundation).

^[7] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (4 November 1950).

^[8] C/09/571932 / HA ZA 19-379 [2021]. An English translation issued by the Hague District Court is available on the website of the Sabin Center for Climate Change Law <http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2021/20210526_8918_judgment-1.pdf> .

^[9] [2020] NZLR 394.

^[10] Ibid [15].

^[11] Ibid [103].

^[12] Smith v Fonterra Co-Operative Group Ltd [2022] NZLR 284, [1].

^[13] Ibid [1].

^[14] Ibid [35].

^[15] See also Juliana v United States, 217 F Supp 3d 1224 (DC Or, 10 November 2016), 34–36 <http://climatecasechart.com/wp-content/uploads/sites/16/case-documents/2016/20161110_docket-615-cv-1517_opinion-and-order-2.pdf> .

^[16] [2021] FCA 560; [2021] 391 ALR 1. See R Pointon, ‘Duty of care to children: The Sharma case and its broader implications’, Precedent 167, 2021, 4–7.

^[17] [2022] FCAFC 35; [2022] 291 FCR 311.

^[18] Ibid [231].

^[19] Ibid [538].

^[20] Ibid [776].

^[21] Ibid, Allsop CJ at [273]–[290]; Beach J at [412]; Wheelahan J at [834].

^[22] Ibid [633].

^[23] Ibid [346].

^[24] Ibid [754].

^[25] District Court Essen, 14/0354Z/R/rv, 15 December 2016.

^[26] RWE lawsuit (re climate change), (24 November 2015) <https://www.business-humanrights.org/en/latest-news/rwe-lawsuit-re-climate-change/>.

^[27] Lliuya v RWE AG, Higher Regional Court Hamm, 1-5 U 15/17, 2 0 285/15, 30 November 2017.

^[28] Asmania et al vs Holcim, Sabin Center for Climate Change Law (2022) <http://climatecasechart.com/non-us-case/four-islanders-of-pari-v-holcim/> .

^[29] Ibid.

^[30] VID622/2021, 26 October 2021.

^[31] Along with costs and any other relief the Federal Court regards as appropriate.

^[32] ‘Amended Statement of Claim’, Pabai Pabai v Commonwealth of Australia, Federal Court of Australia, 12 August 2022, [55].

^[33] DA Kysar, ‘What climate change can do about tort law’, Environmental Law, Vol. 41, No. 1, 2011.