Smith v Fonterra Co-Operative Group Ltd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeFrench J
Judgment Date21 October 2021
Neutral Citation[2021] NZCA 552
Docket NumberCA128/2020

[2021] NZCA 552




French, Cooper and Goddard JJ


Michael John Smith
Fonterra Co-Operative Group Limited
First Respondent
Genesis Energy Limited
Second Respondent
Dairy Holdings Limited
Third Respondent
New Zealand Steel Limited
Fourth Respondent
Z Energy Limited
Fifth Respondent
New Zealand Refining Company Limited
Sixth Respondent
B T Mining Limited
Seventh Respondent

D M Salmon and D A C Bullock for Appellant

D R Kalderimis and N K Swan for First Respondent

S J P Ladd and B A Keown for Second Respondent

A Hill for Third Respondent

D T Broadmore for Fourth Respondent

T D Smith and A M Lampitt for Fifth Respondent

A J Horne and O K Brown for Sixth Respondent

R J Gordon and A M B Leggat for Seventh Respondent

Environment, Tort — appeal against a High Court decision which struck out the appellant's claim of public nuisance against the companies — the appellant felt not enough was being done on the issue of climate change — special damage rule — illegality — lack of a sufficient connection between the pleaded harm and the respondents' activities

The issue was whether the respondent companies had a duty of care to prevent acts that interfered with the climate system.

The Court held the rights pleaded in the statement of claim were consistent with general formulations of the tort of public nuisance. It was not necessary to plead them as established public rights as such. That argument was not a reason to strike out the claim. The fact the respondents were acting in accordance with all applicable regulatory constraints did not of itself preclude the interference being held unreasonable. The reasonableness assessment was claimant-focused,

Recognising a duty of care would be a radical response contrary to the common law tradition which was one of incremental development. No other tort claim recognised by the courts involved a scenario where every person in New Zealand and the world (to varying degrees) was both responsible for causing the relevant harm and was also the victim of that harm.

There was not a universally accepted formulation of the special damage rule. S sought to identify a small group of those responsible, but he was unable to identify any principled basis for singling them out. It was accepted that none of the respondents alone materially contributed to climate change. If their contribution to climate change was an actionable wrong, the logic underpinning that finding would apply to every individual and every business that had not achieved net zero emissions.

It would be a surprising result if every person and business in New Zealand could be brought before the courts for contributing to climate change and therefore restrained from doing so. Such restraint would have to be enforced and monitored by the courts which would require some sort of emissions offset and trading regime parallel to the statutory regime. Actions would have to be brought on an ad hoc basis which would be inherently inefficient and unjust. The duty of care alleged by S would have wide effects on society and the law generally. Were the action allowed to proceed, S would be unable to establish a duty of care in the terms alleged and that the negligence claim was clearly untenable.

The issue of climate change could not be effectively addressed through tort law. Climate change involved competing social and economic considerations which were more appropriately addressed by the legislature.

The appeal was dismissed.

  • A The appeal is dismissed.

  • B The cross-appeal against the High Court's refusal to strike out the third cause of action pleaded as “breach of duty” is allowed. That cause of action is struck out.

  • C There is no award of costs.


(Given by French J)

Table of Contents

Para No





Are common law tort proceedings an appropriate response?


Claims in public nuisance


The tort of public nuisance


Mr Smith's claim in public nuisance


The High Court decision


Public nuisance: our analysis


(i) No actionable public right pleaded?


(ii) No independent illegality?


(iii) Inability to satisfy the special damage rule?


(iv) The lack of a sufficient connection between the pleaded harm and the respondents' activities


Negligence cause of action


Reasonable foreseeability and proximity


The proposed new tort — breach of duty







What should be the response of tort law to climate change? That starkly put is the key issue raised by this appeal.


Climate change is commonly described as the biggest challenge facing humanity in modern times. Its causes and its effects are now widely recognised, with scientists predicting that if greenhouse gas emissions keep increasing, the planet will eventually reach a point of no return.


The appellant Mr Smith is an elder of Ngapuhi and Ngati Kahu and the climate change spokesperson for the Iwi Chairs Forum. He contends that too little is being done in the political sphere and that the crisis calls for a bold response from the common law. To that end, he has issued proceedings in the High Court against seven New Zealand companies, the respondents. Each of them is either involved in an industry which releases greenhouse gases into the atmosphere or manufactures and supplies products which release greenhouse gases when they are burned.


Mr Smith alleges in the statement of claim that the release of greenhouse gases by the respondents is human activity that has contributed and will continue to contribute to dangerous anthropogenic interference with the climate system and to the adverse effects of climate change. These are particularised as increased temperatures, loss of biodiversity and biomass, loss of land, risks to food and water security, increasing extreme weather events, ocean acidification, geopolitical instability, population displacement, adverse health consequences, economic losses and an unacceptable risk of social and economic loss and mass loss of human life. It is also alleged that poor and minority communities will be disproportionately burdened by the adverse effects of climate change.


In a proposed amendment to the statement of claim, Mr Smith further alleges that each of the respondents knows or ought reasonably to know about the harmful impact of their continued emissions or their enabling of emissions on people in the same or similar position to him.


The statement of claim pleads three causes of action in tort: public nuisance, negligence and a proposed new tort described as breach of duty. The remedies sought in respect of each cause of action are declarations that each of the respondents has unlawfully caused or contributed to the effects of climate change or breached duties said to be owed to Mr Smith. Mr Smith also seeks injunctions requiring each respondent to produce or cause zero net emissions from their respective activities by 2030.


In another proposed amendment to the statement of claim, Mr Smith seeks the addition of a clause referencing tikanga Maori. The proposed new clause reads:

Kaitiakitanga as a principle of tikanga Maori incorporates concepts of guardianship, protection and stewardship of the natural environment including recognising that a right in a resource carries with it a reciprocal obligation to care for its physical and spiritual welfare as part of an ongoing relationship.


As is apparent from the wording and confirmed by counsel, this proposed amendment is not intended to assert a separate cause of action but rather to plead a principle and value that should infuse the court's consideration of the issues in relation to all three causes of action.


The respondents filed applications to strike out the proceeding on the grounds that the statement of claim discloses no reasonably arguable cause of action. They contend the various matters raised by Mr Smith are non-justiciable and beyond the purview of the Court. In support of their strike out application, they filed undisputed affidavit evidence that each of them is operating within all relevant statutory and regulatory requirements.


The strike out application was heard by Wylie J. The Judge struck out the claims in nuisance and negligence but declined to strike out the claim based on a proposed new tort. 1


Mr Smith now appeals that decision in relation to the nuisance and negligence causes of action. The respondents cross-appeal the decision declining to strike out the novel tort claim.


For reasons we go on to explain, we have concluded that the appeal should be dismissed and the cross-appeal allowed.

Are common law tort proceedings an appropriate response?

We begin our analysis by discussing at a general level whether common law tort claims are as a matter of principle and policy an appropriate vehicle for addressing the problem of climate change.


In support of the appeal, counsel Mr Salmon urged us to be bold. He submitted it was part of the tradition and strength of the common law that it is responsive to changing times. He likened the case to other watershed moments in the development of the law such as Donoghue v Stevenson 2 where courageous Judges were prepared to extend the existing law in order to address a significant problem.


Mr Salmon's plea was an eloquent one. However, we consider that to accede to it would in fact be contrary to the common law tradition which is one of incremental development and not one of radical change, especially when that change would involve such a major departure from fundamental principles as to subvert doctrinal...

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