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Sharma v Minister Sharma v Minister 1 Parties Anjali Sharma, Isolde Shanti Raj-Seppings, Ambrose Malachy Hayes, Tomas Webster Arbizu, Bella Paige Burgemeister, Laura Fleck Kirwan, Ava Princi and Luca Gwyther Saunders (the applicants). As a consequence of their youth, the proceeding is brought by their litigation representative Sister Marie Brigid Arthur, a Sister of the Brigidine Order of Victoria.The applicants are all children residing in Australia. Against Minister for the Environment and Vickrey Coal Pty Ltd 2 Facts On or around 11 February 2016, Whitehaven applied to the Minister to expand and extend the Approved Project in accordance with s 68 of the EPBC Act (the Extension Project). Vickery replaced Whitehaven as the proponent of the Extension Project on 17 July 2018. If approved, the Extension Project would, amongst other things, increase total coal extraction from the mine site from 135 to 168 million tonnes (Mt). When combusted, the additional coal extracted from the Extension Project will produce about 100 Mt of CO2. 3 Children/Applicant Claims: Para-9 In this proceeding the applicants claim that the Minister owes each of the Children a duty to exercise her power under s 130 and s 133 of the EPBC Act with reasonable care so as not to cause them harm. That duty of care is said to arise by reason of the existence of a legal relationship between the Minister and the Children recognised by the law of negligence. 4 Particular Harm Para-11 The particular harm relevant to the alleged duty of care is mental or physical injury, including ill-health or death, as well as economic and property loss. The applicants assert that the Children are likely to suffer those injuries in the future as a consequence of their likely exposure to climatic hazards induced by increasing global surface temperatures driven by the further emission of CO2 into the Earth’s atmosphere. The feared climatic hazards include more, longer and more intense bushfires, storm surges, coastal flooding, inland flooding, cyclones and other extreme weather events 5 Future Harm to Children Para-12 The applicants allege that such harm will occur in the future and mainly towards the end of this century when global average surface temperatures are forecast to be significantly higher than they are currently. Broadly speaking, it is at that time that, unlike today’s adults, today’s children will be alive and will be the class of persons most susceptible to the harms in question. Indeed, the applicants say that today’s children will live on Earth during a period in which, if CO2 concentration continues to increase, some harm is very probable, serious harm is likely and cataclysmal harm is possible. This seems to be the basis for the proceeding being directed to providing relief to children, as distinct from all persons. On this basis, the applicants say that the Children are vulnerable to a known, foreseeable risk of serious harm, which the Minister can control, but they cannot. In addition, the applicants say that by her position in the Commonwealth Executive, the Minister has special responsibilities to Australian children. 6 Minister’s View Para-15 The Minister does not dispute that climate change presents serious threats and challenges to the environment, the Australian community and the world at large. However, the Minister denies the existence of a duty of care as alleged. The Minister denies that injury to the Children from the approval of the Extension Project is reasonably foreseeable and says that the relevant salient features point overwhelmingly against the recognition of the novel duty of care contended for by the applicants. Additionally, the Minister contends that if a duty of care exists, there is no reasonable apprehension that the duty will be breached and for that and other reasons no proper basis to grant injunctive relief. The Minister contends that the proceeding should be dismissed 7 Risk of Harm Para-30 In a nutshell, the applicants’ case is that the scientific evidence demonstrates the plausible possibility that the effects of climate change will bring about a future world in which the Earth’s average surface temperature (currently at about 1.1°C above pre-industrial temperature levels) will reach about 4°C above pre-industrial temperature levels by about 2100. Para-29 The relief the applicants seek depends upon the Court being satisfied that the approval of the Extension Project by the Minister involves a risk of future injury to each of the Children. The risk of injury alleged by the applicants extends to many forms of what may broadly be described as climatic hazards. The risk of harm in question in this case is therefore harm induced by climate change and, more specifically, harm induced by increases in the Earth’s average surface temperature. The applicants alleged that such harm will occur in the future and mainly towards the end of this century when global surface temperatures are forecast to be significantly higher than they are currently. 8 What Court needs to see? Para-77 Whether the emission of 100 Mt of CO2 from the Extension Project would increase the risk of harm to the Children is relevant to two aspects of the case. First, it bears on whether a duty of care should be recognised and, in particular, to the question of whether it is reasonably foreseeable that the emission of the 100 Mt of CO2 will increase the risk of the Children being harmed. Second, it is relevant to whether I should grant the injunction the applicants seek. For that purpose, I will need to be satisfied (to the extent later discussed) that it is likely that the emission of the 100 Mt of CO2 will cause the Children harm which, relevantly, is an inquiry as to whether it is likely that the emissions will materially contribute to that harm. 9 Co-2Emission and Harm-Court said: Para-88 I should say that, whilst the applicants’ contention about risk is stronger on the basis of there being a real prospect of the 100 Mt of CO2 being emitted on or after average surface temperature has reached 2℃, the contention does not depend upon that. The contention depends upon the plausible prospect that surface temperature will reach a point where a ‘tipping cascade’ will be triggered even by a fractional increase in temperature. As that fractional increase will be the product of an accumulation of CO2, it is not essential to the applicants’ contention that the 100 Mt of CO2 is emitted outside of the ‘carbon budget’. What is essential is that the emission does not occur after the ‘tipping cascade’ is triggered. No one contended for that proposition and, on the evidence I do not think it was available. 10 Does the Minister Owe the Children A Duty of Care? Para-95 The existence of a duty of care is a necessary condition of liability in negligence The applicants do not identify any authority holding that the posited duty of care exists in directly comparable factual circumstances. They ask the Court to find what is in such circumstances referred to as a “novel” duty of care. Para 96 Whether a novel duty of care exists is to be ascertained by reference to a multi-factorial assessment in which considerations (salient features) relevant to the appropriateness of imputing a legal duty upon the putative tortfeasor are assessed and weighed. I discussed the appropriate approach to the ascertainment of a novel duty of care in Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 at [201]-[229]. The principles there discussed are not in contest and were relied upon by the parties. For convenience the discussion of those principles is here updated but largely repeated. 11 What are Salient Features? Para 98 a list of seventeen salient features. They are these: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. 12 What court said about Salient Features Para 109 In summary: (1) The approach to determining whether a duty of care exists is multi-factorial. (2) The seventeen factors listed are a valuable checklist as to the kinds of matters that may be relevant in a multi-factorial analysis. But they are not exhaustive, not all considerations will be relevant in each case, and the considerations that are relevant will be of various weights. (3) The case where the respondent is a repository of statutory power or discretion is a special class of case, which raises its own problems However, the correct approach remains multi-factorial. (4) In such cases, however, certain factors listed in Stavar assume especial relevance. Coherence with the statutory scheme and policy considerations are of critical importance; So, too, may be control, reliance, vulnerability, and the assumption of responsibility 13 What About Principles in Donoghue v Stevenson? Court did rely on it. Para 110 Some further, more general observations about the law of negligence should also be kept in mind. The broad principle which underlies liability in negligence is stated in the famous speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580 and, in particular, its reference to the neighbourhood principle Court also looked at early cases related to environment, (Nuisance)-we will discuss the next week. See Sec-4 Para 116 onward. 14 Salient Features—That Court Considered Para-143 (Road map) The law often imposes legal obligations upon persons charged with the responsibility to care, look out for or, at the least, do no harm to the interests of others. What is it in the facts of this case that tends to affirm a conclusion that the Minister bears a responsibility to