In Smith v Fonterra Co-operative Group & Others,* the New Zealand High Court declined to strike out a claim under a novel duty not to contribute to dangerous interference with the climate system, allowing it to proceed to trial. Claims in the recognised categories of public nuisance and negligence were struck out.
All the emitting companies that were defendants had sought to have the claim struck out entirely.
Unlike most other claims based on greenhouse gas emissions, Mr Smith’s relied on private law rights against businesses that are major contributors to emissions. Other cases around the world have often been brought on a public or constitutional law basis against governments, as in the recent Urgenda case in the Netherlands.
The novel duty was not advanced as an incremental extension of existing law, but as a development from the circumstances thrown up by climate change. The High Court found that because the common law was capable of evolving to create new principles and types of claim, recognition in law of a new distinct duty making emitters responsible to the public was possible. That claim therefore deserved to go to trial. As the judgment records too, exploration of a new duty might even modify the approach of the courts to other recognised duties, such as the negligence and public nuisance claims that had been struck out.
* Disclosure of interest: LeeSalmonLong (Michael Heard, David Bullock having carriage) are acting for Mike Smith in the litigation, with former partner, Davey Salmon instructed as counsel.