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By David McKenna, Partner

Last year a group of plaintiff’s in a representative action commenced in the Federal Court, brought on behalf of all children living in the world, sought to injunct the Minister for the Environment from granting approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), for the expansion of a coalmine that would have produced an additional 33 million Tonnes of coal and produced approximately 100 Mt of additional CO2. They did so on the basis the Minister owed them a duty to exercise her power under the EPBC Act with reasonable care so as to not prevent them harm.

Bromberg J found the Minister did owe the children that duty on the basis the harm was foreseeable, the EPBC Act objects include the protection of the environment (including the safety of people, communities and future generations, the Minister had actual or constructive knowledge her decision would cause harm to the plaintiffs, the plaintiffs were vulnerable, coherence did not preclude recognition of a duty relating to personal injury and the large number of plaintiffs within the class did not create a legal reason to deny the duty. However he declined to grant the injunction as it would pre-empt the Ministers decision.

On 15 March  2022 the Federal Court of Appeal constituted by Allsop CJ, Beach and Wheelhan JJ overturned the original decision of Bromberg J, although final Orders have not yet been made.  All three Appeal Judges found the Minister’s appeal against the imposition of the duty of care in the terms articulated by Bromberg J, and against its conclusion that human safety was an implied statutory consideration under the EPBC Act, should be upheld, although differing in the way they reached that conclusion

Allsop CJ  found the imposition of the duty should be rejected for the following reasons:

  1. The imposition of the posited duty throws up for consideration at the point of breach matters that are core questions unsuitable in their nature and character for judicial determination;
  2. The posited duty is inconsistent and incoherent with the EPBC Act;
  3. The considerations of indeterminacy, lack of special vulnerability and of control in the context of the EPBC Act and the nature of government policy considerations necessarily arising at the point of assessing breach, make the relationship inappropriate for the imposition of the duty.

Allsop CJ also said:

A posited duty of care must be stated by reference to the kind damage a Plaintiff will suffer.

The duty found by Bromberg J was framed by a reference to contributing to carbon dioxide emissions into the atmosphere by the combustion of the coal mined.  That duty throws up for consideration at the point of assessing breach the question of the proper policy response to climate change and considerations unsuitable for resolution by the judicial branch of government.  In particular, the duty throws up at the point of assessing breach, the question whether, and if so, how so called scope 3 emissions from the combustion of the coal that is to be exported should be or should have been taken into account when making a decision about whether to approve the extension of a coal mine, when the statutory focus and concern of the decision is the protection of identified species and communities of fauna and water resources.  A duty that calls up such questions should not be imposed:  It is one of core, indeed high, policy making for the executive and the parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the judicial branch to resolve in private litigation by reference to the law of torts and potential personal responsibility for indeterminate damages, if harm eventuates in decades to come.

Allsop CJ said:

“The fundamental question of legality aside, it is not the function of the judicial branch to rule upon any lack of adequacy or any lack of wisdom of government policy by reference to the law of torts… matters of policy here and of considerations drawn from the gravity and seriousness of the international subject matter and the risk of catastrophe for the world and humanity.”

He also said it is not the case the decision under Section 130-133 of EPBC Act could not possibly be attended by a duty to exercise reasonable care to a class of persons in the circumstances.  Whilst the consideration of social and economic matters may make it difficult to judge negligence, a duty posited (say to exercise care in relation to the approval of a mine on land containing a large deposit of blue asbestos near a centre of population) may make the question of reasonableness of this decision properly amendable to judicial determination by refence to a legal standard, however that was not the position in relation to this matter.

He also said the duty would be incoherent and inconsistent with the EPBC Act and the legal and government framework of responsibility for the protection of the environment reflected therein, because the duty would create a form of mandatory consideration beyond the considerations in respect of the decision in question provided by the EPBC Act on its proper consideration. The EPBC Act does not contain as an overall purpose its safety of human life.

He also commented on the issue of causation and application of the “but for” analysis.  He said the “but for” analysis is not a comprehensive or exclusive test of causation.  The decision of the High Court in March v E and M H Stramare Pty Ltd  and the judgment of Mason CJ (with which Toohey J and Gaudron J agreed) stands for the proposition that causation in the field of negligence is essentially a question of fact to be answered by reference to common sense and experience into which considerations of policy and value judgment necessarily enter and that the “but for” test is not definitive.

He also said that, until the High Court says otherwise, causing an increase in the risk of harm occurring does not amount of itself causing or materially contributing to the harm.  Bendix Mintex Pty Ltd vs Barnes (1977) 42 NSWL 307 at 315-316; Seltsam Pty Ltd vs McGuiness [2000] NSWCA 29. It is not for an intermediate Court to say that for proof of causal connection in the causing of harm from global warming increasing the risk of such is a sufficient causal connection to establish liability.

Finally, he said the extent which risk may be mitigated by countless others around the world and in particular by international agreement make concept of the Minister having relevant control non-existent, or extremely faint at best.  This makes the relationship between the children and the Minister indirect and mediated by the intervening conduct of countless others around the world.  That intermediation of others includes those who decide to buy and use the coal and their national governments who permit it within their obligations under international agreement to be responsible for scope 3 emissions.

He concluded that vulnerability was special vulnerability and the primary judges’ findings as to vulnerability were inadequate to characterise the children as vulnerable in the relevant sense.  They are in the same position as everyone in the world who is or will be alive at future times at which the harm posited.  The lack of relevant control in any relationship further undermines the nation of vulnerability.  The children have no reliance upon the Minister different to all other Australians.  The reliance is the expectation of good government.  It is not legal reliance general or otherwise.

As to indeterminacy, He noted the primary judge’s finding was the duty was to all children in Australia under 18 years of age and born at the time of commencement of the proceeding.  There was however no reason in logic why the duty should not also be owed to the unborn.  The potential liability of the Minister is therefore indeterminate in number and nature.  That the duty concerns personal harm does not remove the consideration of determinacy rather it highlights the novelty of the duty.

Beach J considered it was necessary to determine the nature of the duty and he found it was a positive exercise to approve which is said to give rise to the risk of harm, rather than the failure to exercise or sufficiently exercise in the statutory power.  In summary he said that given the prevailing paradigm of authority binding upon him, he reached the view that a lack sufficient closeness and directness and it’s related partial inverse, namely indeterminacy was such as to deny the positive duty of care.  He also found against primary judge concerning his identification of an implied mandatory consideration concerning human health and safety going to the exercise of the relevant statutory power.

He also concluded the primary judge was not incorrect to find that reasonable foreseeability had been established in relation to causation.

He said this was a case of increased risk of harm, and apposite to the decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, where causation can be proved where negligent conduct has resulted in a material increase in the risk of harm occurring, however he noted that had not been accepted as the test for causation in Australia. He said that  It was his view that the common law is going to have to evolve to deal with [  ] as such is the present, including adopting considered suggestions to deal with factual causation.

It was his view that the primary judge had declared the existence of a duty of care, divorced from any questions of breach, causation and damage.

He considered that whilst there was a modicum of incoherency, he did not consider it was a strong feature  of the duty of care, particularly in a scenario such as he had identified concerning a positive duty to exercise.

He did not consider circumstances of the case involved “core” policy.  He did not consider it could be said the Minister’s exercise of powers was quasi legislative and did not consider the fact the Minister had to take into account economic and social matters established that one was in a “core” policy area.  He did consider GHG emissions were central to or the very essence of the statutory enquiry concerning approval for the mine.  They were not “core” to the act and he also said the Minister could delegate her power.  He accepted policy questions were involved in the Minister’s decision, but whatever they may be, they could be adequately dealt with at the breach stage.  He did not consider the fact there were policy questions supported denying the duty unless the Act itself makes the policy questions so fundamental to the exercise the statutory power that such conclusion was compelling.  He was not so compelled.  He did not accept the Minister, in a relevant sense did not have control over the risk flowing from her approval.

He accepted some members of the Plaintiff class were likely to be vulnerable to a real risk of personal injury from events causally related, on hypothesis, to the Minister’s breach of the positive duty of care, in the sense they are unlikely to be able to protect themselves from such personal injury, but it would not be all members of the claimant class.  All members of the claimant class would be subject to climate change and its potential effects, but it depicts the concept of vulnerability at the level as much too broad.  He therefore found the primary judge was partially correct in his conclusion on vulnerability, but not all members of the class.

He doubted a special relationship was required to be shown, but if it was a requirement, it had not been shown.  Generally, he could not see how any members of the claimant class could reasonably be considered to be “so closely and directly affected” by any act of the Minister with respect to her exercise of statutory power in the present context.

He was also of the opinion the positive duty of care could not be sustained by reason of indeterminacy.  Indeterminacy arises because of lack of ascertainably of the relevant class, namely likely vulnerable victims.  That foreclosed the posited duty of care.  He did however say that it may be one day, one or more members of the claimant class may suffer damage and so have an apparently complete cause of action.  If so, it should be open to them to assert the existence of the relevant duty of care, breach of duty, causation and damage.  No estoppel should arise of any questions concerning the existence of a duty by allowing the present appeal.  To achieve that income, the representative nature of the proceedings would need to be addressed.

Wheelhan JJ also allowed the appeal.  He did so on the following basis:

  1. The Minister’s functions under Section 130 and 133 EPBC Act in this case does not erect or facilitate a relationship between the Minister, and the Respondents and those whom they represent, that supports a recognition of a duty of care;
  2. It would not be feasible to establish an appropriate standard of care, with the consequence that there would be incoherence between the suggested duty and the discharge of the Minister’s statutory functions;
  3. He was not persuaded it reasonably foreseeable the approval of the extension project would be a cause of personal injury to Respondents, as the concept of causation is understood for the purposes of  the common  law tort of negligence.

This case demonstrates that it is not appropriate to use a tort action to support an injunction to prevent a Ministers decision and contains an excellent discussion on causation law in Australia and other jurisdictions.

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