Climate Change and Tort Law
Joanna Kyriakakis
This chapter explores issues at the intersection of climate change and tort law in Australia. Its aim is to orient the reader to questions that arise as a result of tort law’s collision with the complex new societal challenges facing us as a result of climate change, both at a general level and in terms of its implications for specific torts. The word ‘torts’ (which means ‘wrongs’) is an umbrella term that denotes a range of distinctive civil causes of action (other than for breaches of contract or property law) that entitle a person (natural or legal) to seek a remedy from another where their legally protected interests have been impaired. While they have much in common, the various torts have different elements and functions that make their collision with climate change distinctive.
To date, there has been limited tort-based climate litigation in Australia. However, there are significant examples of tort-based climate litigation in other parts of the world and scholarly literature that explores what similar litigation might mean in Australia. This chapter draws on actual and possible developments in Australian tort law that are animated by the challenge of climate change.
The first part of the chapter explores broad thematic issues that arise when a field of the ‘private law’ is called to form part of the solution to a collective problem such as climate change. It explores the legally disruptive potential of climate litigation for tort law, as well as its appeal to litigants. The second part of the chapter looks at some principal torts and how those may or may not be amenable to climate litigation. This part does not aim to be comprehensive, but illustrative of developments in tort law that climate litigation will demand. Finally, part three considers possible future trajectories, including those suggested by significant cases overseas.
Key Questions
- To what extent might climate litigation disrupt Australian tort law and is such disruption desirable or problematic?
- What might ‘success’ look like for litigants seeking to use tort law as a mechanism for achieving climate justice?
Chapter Outline
The term person, or similar expressions to denote persons in law, include a body politic or corporate, as well as an individual.
Cases where climate change is a central issue in the dispute, climate change is raised as a peripheral issue, climate change is one motivation behind the case, or where the case has implications for mitigation or adaptation (Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy, Cambridge University Press, 2015, p. 8).
