How do you solve a problem? Like Marie

Valiant teenagers led by Sister Marie Brigid Arthur have successfully asserted a climate duty where there was “nun” before - forgive the pun.

And forgive us children, for we have sinned. Monumentally. We have taken the planet to a point where significant action beyond the confessional is required to assuage our guilt and stem the ravages of climate change.

Enter eight teenagers, a nun, Justice Bromberg and the common law.

In February 2016, an application was made to expand and extend the operation of a coal mine in north west New South Wales (Extension Project). If approved, the combusted coal from the Extension Project would contribute 100 Mt of C0₂ into the atmosphere.

Concerned by the impact of the approval on their health, future property and finances, a group of teenagers applied to the Federal Court claiming the Commonwealth Minister for Environment owed them and other children a duty of care to avoid harm. An injunction was also sought to restrain an apprehended breach of that duty.

This is an interesting claim not just for Australians but globally. The number of actions issued world-wide has doubled in the past three years. An action was launched in the UK last month by three young adults, supported by environmental campaigning group, Plan B, against the UK Government, alleging its failure to produce plans to reduce UK emissions constitutes a breach of their human rights. The claim is in its infancy and is not a claim asserting any physical harm or injury, as in the Sharma case. However, back in December 2020, a UK coroner called for climate laws to be changed after finding that a young child’s death had been contributed to by air pollution. The coroner’s findings were that urban air pollution in the area of South-East London where the child lived was toxic and made a material contribution to her death. The findings are significant and likely to impact on future claims pertaining to air pollution and other climate change issues.

Harm

An exercise in prophesying, the Sharma case required Justice Bromberg to consider various future climate scenarios (which were confronting in the extreme). His Honour accepted the unchallenged evidence of Professor Steffen that “CO₂ emissions caused by the Extension Project would increase global average surface temperature and thus increase the level at which that temperature is eventually stabilised.”

The evidence was that with an increase in surface temperature, heatwaves and bushfires would become more frequent and extreme, leading to cardiovascular and respiratory problems, premature deaths, burns, eye problems, mental health concerns and increased domestic and family violence.

Duty of care

Justice Bromberg found that “the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s130 and s133 of the Environment Protection and Biodiversity Act 1999, to approve or not approve the Extension Project.”

The salient features pointing to the imposition of a duty of care in this case were the children’s vulnerability and reliance on the minister, the minister’s ability to control the potential harm and the fact that it was reasonably foreseeable that personal injury may arise from more bushfires and heat stress.

His Honour was not prepared to extend the Minister’s duty to children outside Australia, nor to extend the duty to one to avoid pure economic loss or property damage.

Injunction

While the duty of care was established, His Honour did not find there was an imminent threat of harm. Nor did he see it fit to pre-empt the Minister’s decision as to whether she would approve the Extension Project, noting the Minister now had greater information available to her about the potential risk of personal injury to Australian children and her duty to avoid same.

Risks of inaction

The duty found by His Honour is an especially narrow one. However, it cannot be discounted that in the face of inaction, insurers (and their insured clients) might find themselves in the fray of litigation. That is to say, they too might be found to owe novel duties of care to prevent personal injury arising from global warming, provided salient features of the duty can be established.

Of course, even if a duty cannot be established, alternate claims might be advanced. A superannuation fund in Australia has already been pursued for violations of the Corporations Act arising from failures to disclose information about climate change business risks.

There is also the inherent risk alerted to by Justice Bromberg of the potential damage itself “there are many persons and institutions – for example, insurance companies, banks, corporations or government – who face exposure to financial risk from hazards induced by climate change.”

For healthcare providers, Dr Mallon’s evidence is that if surface temperature increases by 4º by 2100 “for Australia as a whole the incidents will increase by 850% or an eight fold increase. In practical terms that means 8 million doctor visits will be attributable to climate change driven warming, equivalent to an average 38% of the population attending the doctor due to a heat stress event. There are also expected to be 50,000 of additional hospitalisations due to heat stress.”

Key takeaways (in reusable containers - of course)

Hailed globally, the decision is testament to the conviction of altruistic litigants and the power of the common law to respond to evolving community standards.

It is also a pertinent reminder that:

• The imposition of a novel duty of care will turn on whether relevant salient features are met, having regard to all of the facts and the nature of the claim.
• Courts will consider the totality of a relationship between parties before imposing a novel duty of care.
• The probability of a risk occurring does not influence its foreseeability – a risk need only be real.
• High quality expert evidence is crucial in proving a case.

When it comes to a warming planet, the costs of inaction are high, be that through claims exposure or unprecedented demand on services (particularly in the case of healthcare providers).

Read other items in Australian Insurance Brief - July 2021

Read other items in Occupational Disease Brief - October 2021