Climate Change Litigation: Vulnerable Children and a Duty of Care

Abstract

This article considers climate change jurisprudence in the context of other eschatological narratives developing the theme of ecological catastrophe. It focusses in particular on concepts of fault, harm and responsibility, referents in case narratives, as expounding a sense of outrage at the excesses of modern capitalism, and the converse use of the child as the party innocent of all agency in the upcoming apocalypse. The article analyses the narrative developed by the applicants in an Australian case, Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (Sharma 1), in which the “previously unimaginable power” to cause potentially “cataclysmal harm” to “Vulnerable Children” created a duty to those children. The applicants were successful at first instance, but an appeal (Minister for the Environment v Sharma [2022] FCAFC 35 (Sharma 2) reversed this decision.

Taking an interdisciplinary approach and drawing upon approaches of philosophy, psychology and theology as well as law, this article considers the idea of “fault” in the tort of negligence and the techniques used to support the moral connotations of fault in the case narrative. In particular, it reflects on the contribution of the Judeo-Christian tradition to this fault narrative. It focusses in particular on the theology of hope in Christian eschatology, responses to anticipation of catastrophic climate change narratives, and the concept of fault in those narratives. It considers the psychological dimensions of “hope” and “despair” as illuminated in theological approaches to apocalyptic views, and the reification of doctrines of despair in proving damages in the law of negligence.