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Constructing a Negligence Case under Australian Law against Statutory Authorities in Relation to Climate Change Damages

Rahul Thyagarajan


In the absence of effective government regulation, litigation is increasingly being pursued as an avenue of redressing climate change. This article explores—from a first-principles consideration of Australian law—the viability of three hypothetical negligence actions against a public authority: (i) the approval of a development in a flood-prone area; (ii) the failure to buildmitigating infrastructure; and (iii) the approval of a project contributing to greenhouse gas emissions. The paper concludes that whilst it is likely that a climate plaintiff could successfully argue a duty and breach, causation issues associated with “downscaling” climate science offer particularly intractable hurdles to overcome. Although the thrust of this article deals with the idiosyncrasies of Australian tort law, lessons from this piece may be instructive to tort and climate lawyers fromother common law jurisdictions, and in particular, those UK and US lawyers interested in the evolution climate torts and the treatment of causation.

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