A new climate change tort in New Zealand?

The month of March brings a second exotic possible tort claim to the table in the common law world. Following the Canadian Supreme Court’s decision in Nevsun v Arraya not to strike out a claim against a company for violating customary international law, we now have a novel tort raising its head in the Southern hemisphere.

Smith v Fontera Co-Operative Group Ltd and Ors  [2020] NZHC 419 saw the recognition of a possible new tort in connection with causing harm through emission of greenhouse gases. A claim was brought against various defendants who are either involved in an industry which releases greenhouse gases into the atmosphere, or who supply products which release greenhouse gases when they are burned. The plaintiff was  Mr Smith who claims customary interests in lands and other resources situated in or around Mahinepua in Northland. The statement of claim raised three causes of action, all in tort – public nuisance, negligence, and breach of an inchoate duty. Mr Smith did not claim damages but declarations that each of the defendants had unlawfully caused or contributed to the public nuisance alleged or breached duties said to be owed to him. He also sought injunctions requiring each defendant to produce, or cause, zero net emissions from its activities by 2030.

The defendants applied to strike out the claims on the grounds that the pleadings disclosed no reasonably arguable cause of action.

Wylie J struck out the public nuisance claim. The damage claimed was indirect and consequential. The interference with the rights of the public pleaded by Mr Smith was interference with public health, safety, comfort, convenience and peace. If the pleading could be made out, the defendants’ interference with those rights had no direct connection with the pleaded damage to Mr Smith’s interests in the land in question. Furthermore there was no unlawful conduct in the activities of any of the defendants.

The negligence claim went the same way. The damage claimed by Mr Smith could not be said to be a reasonably foreseeable consequence of the defendants’ acts or omissions. The defendants’ collective emissions were miniscule in the context of the global greenhouse gas emissions which are causing climate change and it is the global greenhouse gas emissions which are pleaded as being likely to cause damage to Mr Smith. Causation was also a problem. The proportion of the damage pleaded that is caused by climate change effects contributed to by each defendant, or even the extent to which anthropogenic interference with the climate system has caused, or will cause, the damage pleaded was impossible to measure.

Proximity was a further problem as there was no relationship between the parties from which it could be established. The claim opened up the spectre of indeterminate liability for the defendants. The claimed duty would be owed anybody who can claim damage as a result of the widespread effects of climate change. Everyone is a polluter, and therefore a tortfeasor, and everyone is a victim (and therefore a possible plaintiff).

However, Wylie J was reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, was untenable, noting “it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; 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. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist Mr Smith.”

Wylie J concluded by noting a problem with the remedy sought, that of injunction which would be extraordinarily difficult and would require continued judicial supervision up to 2030, and maybe beyond.

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