By Dr Joanna Kyriakakis
Torts and Human Rights
Traditional tort law thinking emphasises the inter-personal nature of torts claims. Unlike public law, tort law is primarily about repairing the bilateral private relationship between two persons rather than constraining exercises of state power over rights. Nonetheless, tort law offers real prospects for litigants to pursue human rights claims in Australia. It can do so alongside more obvious rights remedying fields such as administrative law (which enables challenges to the exercise of executive power), constitutional law (which enables checks of overreach by arms of government) and criminal law (which protects defence rights in criminal procedures). Thinking in this way about rights enforcement is important in Australia, in light of our ongoing lack of a comprehensive bill of rights.
The capacity for tort law to operate as a human rights mechanism is aided by its application to both public and private actors (the Crown is not immune from civil liability in Australia); the potential for class actions; and ways in which many human rights abuses can be translated into civil wrongs, albeit imprecisely. The ability to seek pre-emptive injunctions that prevent the commission of a tort is also a valuable tool for human rights lawyers. We have seen a rise in the creative use of tort law to achieve rights outcomes in Australia in recent years, such as efforts to secure refugee rights and women’s rights, as well as compensation for the devastating impacts of Australia’s historical ‘Stolen Generations’ practices and policies.
A recent debate has been whether, and to what extent, tort law might be used for climate litigation in this country, as we are seeing emerge elsewhere. It is a challenging prospect but two recent landmark Federal Court decisions indicate the potential of the tort of negligence in particular in addressing complex environmental claims.
Sharma v Minister for the Environment
In Sharma v Minister for the Environment, a group of eight representative children (aged 13 – 17) sought an injunction from the Federal Court to restrain the Minster from approving an expansion of allowable coal extraction at the Vickery Coal Project, a mine located in New South Wales. The children’s application for injunctive relief was dismissed because they had not demonstrated a reasonable apprehension that the Minister would breach her duty in whatever decision she took. However, in a remarkable judgment, Bromberg J put the Minister on notice as to her legal responsibilities under negligence law.
Negligence involves one party owing a duty of care to another, a breach of that duty, and that breach being the cause of legally recognised damage. Both duty of care and causation are particularly challenging in pursuing claims for climate induced losses (particularly future ones) given the global and causatively complex nature of the problem (such as the many contributing sources of climate change), and its potential impact upon all of us, albeit in different ways.
Despite such challenges, in Sharma, Bromberg J emphasized the adaptability of tort law to altering social conditions and evolving community standards. After reviewing early nuisance and negligence cases, he concludes (at para 137) that they reveal:
…the willingness of the common law to respond to changing social conditions including those brought about by the increasing power of human beings to cause harm to others. That is the context in which the applicants contend that because today’s adults have gained previously unimaginable power to harm tomorrow’s adults, the common law should now impose correlative responsibility.
The contemporary Australian approach to the existence of a duty of care in novel circumstances (such as this one) requires a court to apply a multi-factorial approach, often referred to as the ‘salient features’ analysis. This involves a process of analogy from prior cases, emphasizing those factors most salient in pressing towards, or away from, a duty of care.
In Sharma, Bromberg J held that the Minister has a duty to all children residing in Australia to exercise reasonable care in deciding the Vickery Coal Project expansion application which, if approved, will facilitate the emission of 100 million tonnes of carbon dioxide (CO2) into the Earth’s atmosphere. This is because the relevant salient features point strongly towards such a duty in respect of the personal harms, both physical and mental, that Australian children are exposed to as a foreseeable consequence of an approval. It hinges upon the fact that approval of this extent of new CO2 emissions by the Minister will make a material contribution to the warming of the Earth’s surface and thus the health impacts that plausible future world scenarios pose to the children within their lifetimes.
The Court’s reasoning emphasised the children’s vulnerability, and indeed their innocence, in respect of the future risks they face; the Minister’s control over those risks; their reasonable reliance upon her; and the coherence of a common law duty with the statutory scheme under which the Minister acts. The Court rejected, however, that the duty extended to future property damage and pure economic loss for reasons related to the statutory scheme.
In a particularly moving part of the judgment, Bromberg J stated (at para 293):
It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.
While the duty of care in Sharma has been carefully limited to the coal extraction application in question, it has implications for other approvals that would generate similar or greater CO2 emissions.
Sanda v PTTEP Australasia
While not about climate change or future injuries, the decision of Yates J in Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd is also noteworthy. The claim involves 15,000 Indonesian seaweed farmers who are seeking compensation for damage to their seaweed crops and livelihoods attributed to an oil spill in 2009 at the Montara oil field. The Montara oil field is located in Australian territorial waters in the Timor Sea and is operated by Australian company, PTTEP Australasia (PTTEPA). The incident involved a well blow-out that caused the uncontrolled spill of hydrocarbons over a period of 10 weeks and is the worst of its kind in Australian history.
Despite the distance of the applicants’ seaweed stock from the well (about 240km), conflicting expert views as to the likelihood that Montara oil had travelled to, and damaged, seaweed on the Indonesian shoreline, and the compliance of PTTEPA’s oil spill contingency plan with Australian regulation, Yates J held that the Company had a duty of care to the Indonesian seaweed farmers and had breached that duty causing the damage in question.
Like Sharma, the decision is based upon conventional negligence principles but leads to a significant outcome from the perspective of protecting rights that link to the health of our globally interconnected environment.
In terms of its duty of care, Yates J held that the Company could have considered the worst case scenario (a well-blow out) in its risk assessment processes (which it did not). This worst case scenario encompassed a foreseeable risk to those reliant upon the commercial exploitation of flora and fauna on the Indonesian shoreline, particularly due to PTTEPA’s gross incompetence in terms of properly sealing the well, which made the potential for such a scenario more likely.
In terms of causation, what is important is the Court’s finding that certainty as to the precise mechanics or pathways by which Montara oil had damaged the seaweed in Indonesia was not necessary. It was sufficient that, on the balance of the probabilities, the totality of evidence demonstrated that it had, in fact, done so. On this, Yates J rejected alternative explanations offered by the Company and stated that (at para 1019) ‘the obvious cannot be ignored’. Notable too was Yate J’s willingness to calculate damages owed to the lead plaintiff where, in light of his socio-economic circumstances, he was unable to present documentary evidence of his precise economic losses.
Human Rights, Children’s Rights, and a Healthy Future Environment
There are ongoing moves at the international level to recognise a freestanding right to a healthy environment. In the meantime, the relationship between other human rights and a healthy environment, including and in particular the rights of the child, are increasingly well understood and established. In a welcome move, the UN Committee on the Rights of the Child has recently committed to a new General Comment on children’s rights and the environment, with a special focus on climate change.
The Australian tort decisions are not based on human rights law principles and, indeed, Sharma has been criticised in terms of its paternalistic treatment of childhood and as a ‘missed opportunity’ to advance domestic children’s rights law. Moreover, both decisions are open for appeal. Nonetheless, with these judgments, the ways in which the tort of negligence can ground causatively complex, future-oriented, and transnational environment harm claims in Australia, is coming into clearer view. They chart a path for Australian negligence law to play a greater role in securing transnational and intergenerational environmental and climate justice and at a time where it has never been more urgent.
Dr Joanna Kyriakakis is a Senior Lecturer at the Faculty of Law, Monash University, and Convenor of the Working Group on Climate Change and Human Rights at the Castan Centre for Human Rights Law. She is a co-author of Contemporary Australian Tort Law(CUP, 2020).