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Documentation:Torts/Negligence Pollution

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligent pollution of the environment
Negligent pollution of the environment is a category of negligence that may arise in different contexts. For instance, it is well established in jurisprudence that a landowner owes a duty to abutting landowners to avoid causing harm to their properties. Such harm includes the contamination of land.[1] Another area in which negligent pollution claims appear is in the context of climate change, a rapidly evolving area of civil litigation.[2]

Duties arising from environmental pollution

Duty to adjacent landowners

Toxic Torts
Three gasoline storage tanks in a row - blue, pink, and green.
This episode of the Law Pod UK discusses lawsuits brought by claimants seeking compensation for exposure to harmful substances.[3]

At common law, a landowner owes a duty to adjoining landowners to avoid acts or omissions that cause them harm.[4] The standard of care expected is that of a reasonable land owner.[5] This standard may be breached if a landowner's conduct causes the land of his neighbours to become contaminated.[4]

In Canadian Tire v. Huron Concrete, the defendant's failure to test and monitor its underground gasoline storage tanks, as required by regulation, resulted in gasoline leakage that migrated onto adjoining lands.[6] The Ontario Supreme Court found that the defendant's inaction constituted negligence.[1]

In Midwest Properties Ltd v. Thordarson, the defendant stored waste petroleum hydrocarbons (PHC) on its property.[7] The defendant's failure to comply with its licenses and orders given by the Ministry of Environment caused PHC to contaminate the neighbouring land, presenting a health risk to the plaintiff's employees.[7] Finding that negligence had been made out, the Ontario Court of Appeal ordered more than $1.3 million in damages.[8]

Duty to civilians

A factory shrouded in darkness and emitting a smoke-like substance.

The consequences of climate change have brought with them a surge of litigation in recent years.[9] Plaintiffs around the world are bringing negligence claims against greenhouse gas emitters for their exacerbation of climate change. They face challenges. The Full Court of the Federal Court of Australia rejected an alleged duty of care owed by the Commonwealth Minister for the Environment to the people of Australia in considering whether to approve an environmentally harmful coal mine.[10] The Court outlined a number of concerns with the tort claim, such as indeterminate liability, lack of proximity, and incoherence between the Ministry's statutory functions and a common law duty of care.[10]

On the other hand, in the Netherlands, the environmental group Milieudefensie/Friends of the Earth sued the oil corporation Shell, alleging that the corporation's contributions to climate change violated its duty of care to civilians.[11] The Hague District Court found in favour of the plaintiffs and ordered Shell to reduce its CO2 emissions by 45% by the year 2030.[11]

A word from activist Mike Smith
A factory at the end of a winding road and next to a stretch of grass.
A factory in Longburn, New Zealand belonging to Fonterra, one of the seven defendant companies in Smith v. Fonterra.
Here, the plaintiff in Smith v. Fonterra speaks to Stuff News about his activism and work on climate change.

The New Zealand Supreme Court in Smith v. Fonterra Co-op Group Ltd. declined to strike out a potential duty owed by companies that are allegedly collectively responsible for one-third of New Zealand's greenhouse gas emissions.[12] The plaintiff alleged that the companies owed him and others a duty of care, which they breached by contributing to "dangerous anthropogenic interference in the climate system".[13] The Supreme Court held that the claim had enough merit such that it would be inappropriate to strike out, and thus allowed it to proceed to trial.[14] Nevertheless, refusal to strike out a claim is no commentary on whether it will eventually succeed.[15] The plaintiff will still need to make out the elements of negligence,[16] including a proximate relationship between the companies and the plaintiff, the existence of which counsel for the defendants deny.[17]

Despite potential obstacles at trial, the decision in Smith is an important development that recognizes the potential for environmental harm to be addressed by existing principles of negligence.[18] In the wake of the ruling, other jurisdictions may follow as the common law continues to evolve.[18]

The landscape of climate change litigation: tort law and beyond

In the news
Success for youth plaintiffs
A Montana judge ruled in favour of youth plaintiffs who had sued the state for violating their constitutional right to a "clean and healthy environment".[19]

This video discusses the case of Held v. Montana further.[20]

Climate change litigation is on the rise across the globe, with the number of cases having more than doubled since 2017.[9] These cases generally fall into one of two categories: private law actions in areas such as tort law, fraud, planning, and corporate law; and public law actions against governments.[2]

Remarkably, as of December 31, 2022, 34 climate change cases were brought by youth.[21] In Juliana v. United States, youth plaintiffs sued the US government, alleging that the government violated their constitutional rights by causing dangerous levels of carbon dioxide emissions.[22] In Canada, a Charter challenge was brought against the Ontario government in Mathur v. His Majesty the King in Right of Ontario for its decision to loosen the 2030 climate target.[23]

Discussion questions

  • What obstacles will the plaintiff in Smith v. Fonterra encounter establishing causation in this context? Are the obstacles insurmountable?
  • Is climate change an issue best addressed by the legislature or the judiciary? What is the proper role of the judiciary in the face of emerging crises like climate change?


  1. ↑ 1.0 1.1 Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288 at para 299.
  2. ↑ 2.0 2.1 Blakes (1 May 2023). "Climate-Change Class Actions in Canada Inevitable". Blakes.
  3. ↑ Law Pod UK (18 December 2023). "Toxic Torts". Audioboom.
  4. ↑ 4.0 4.1 Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288.
  5. ↑ Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (§19.11.1) at para 109.
  6. ↑ Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288.
  7. ↑ 7.0 7.1 Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (§19.11.1).
  8. ↑ Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (§19.11.1) at para 125.
  9. ↑ 9.0 9.1 United Nations Environment Programme (2023). "Global Climate Litigation Report: 2023 Status Review". United Nations Environment Programme: 11.
  10. ↑ 10.0 10.1 Minister for the Environment v. Sharma, [2022] FCAFC 35.
  11. ↑ 11.0 11.1 Milieudefensie et al. v. Royal Dutch Shell plc., [2021] C/09/571932 (Hague District Court).
  12. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3).
  13. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3) at para 68.
  14. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3) at para 173.
  15. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3) at para 143.
  16. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3) at para 175.
  17. ↑ Smith v. Fonterra Co-op. Group Ltd, [2024] NZSC 5 (§19.11.3) at para 131.
  18. ↑ 18.0 18.1 Airlie Goodman, Nazia Sohail & Oliver Jones (10 May 2024). "Smith v Fonterra: A Climate Change Litigation Development". Eye on ESG.
  19. ↑ Noor, Dharna (20 August 2023). "Montana's landmark climate ruling: three key takeaways". The Guardian.
  20. ↑ Down to Earth (17 August 2023). "Held vs State of Montana : 16 youths win historic climate trial". Youtube.
  21. ↑ United Nations Environment Programme (2023). "Global Climate Litigation Report: 2023 Status Review". United Nations Environment Programme: 40.
  22. ↑ Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016).
  23. ↑ Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316.
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