By Antonio Oshana
I INTRODUCTION
Eight schoolchildren, led by Sister Brigid Arthur, walked into the Federal Court of Australia seeking the law of torts to recognise a duty of care for the children of Australia in the face of climate change. In Minister for the Environment v Sharma,[1] six of the original eight children sought to restrain the Minister from approving a coal mine extension on the basis of future harm.[2] Despite emphasising the seriousness of the possible harm,[3] the Full Federal Court refused to recognise a duty of care,[4] pointing to limits in control,[5] causation,[6] and indeterminacy.[7]
The decision in Sharma identifies the doctrinal limits that prevent negligence from operating across time and exposes the underlying philosophical difficulty of assigning responsibility across generations. It will be contended that any effective response to future climate harm must be constructed legislatively.
II SHARMA LITIGATION
Sharma arose from an application by Vickery Coal Pty Ltd to extend an existing coal mine near Gunnedah, New South Wales.[8] If approved under the Environment Protection and Biodiversity Conservation Act,[9] the project would increase coal extraction by 33 million tonnes and, upon combustion, generate roughly 100 million tonnes of carbon dioxide.[10]
With Sister Brigid Arthur acting as their litigation guardian, the children brought proceedings in the Federal Court. They argued that the Minister owed the children of Australia a duty of care when exercising her approval powers under sections 130 and 133,[11] requiring her to take reasonable care to avoid causing personal injury or death from the resulting greenhouse gas emissions and global warming.[12]
At first instance, Bromberg J accepted that such a duty existed.[13] On appeal, however, the Full Federal Court set that finding aside. Allsop CJ emphasised that the relationship was one of government and governed, not legal neighbours.[14] His Honour pointed to the Minister’s limited control over the harm, the “tiny contribution” of a single approval to global emissions,[15] the indeterminate class of potential plaintiffs (possibly extending to the unborn),[16] and the mismatch between that contribution and potentially unlimited liability for climate-related harms.[17] Beach J focused on the lack of sufficient closeness and directness between the statutory power and the risk of injury,[18] while Wheelahan J held that causation could not be established.[19]
Sharma illuminates the structural limits of negligence in addressing climate harm.
III STRUCTURAL INCOMPATIBILITY OF NEGLIGENCE AND CLIMATE HARM
This section does not attempt a comprehensive account of negligence law. Rather, it identifies the structural assumptions within negligence that become unstable when applied to climate harm.
Negligence is concerned with whether a cognisable relationship exists between Defendant and Plaintiff, traditionally framed through the concept of neighbourhood,[20] control,[21] and reasonable foreseeability.[22] Although Australian law rejects any single test for establishing duty of care, novel duties are assessed through salient features that nevertheless assume a sufficiently bounded relationship and intelligible causal connection between act and harm.[23]
Climate harm strains those assumptions due to the intuitive foreseeability of conduct contributing to climate change harming future generations.[24] Yet, that intuition becomes difficult to translate into legal responsibility because climate harm is cumulative, arising from the conduct of countless actors across time and space, such that no single contribution is sufficient to produce the harm.[25] Negligence, by contrast, is built around bounded causal sequences linking act and injury. An incremental contribution to a global system does not readily satisfy legal causation. This is reflected in Sharma through the characterisation of the Minister’s contributions to climate change as “tiny” and disproportionate to any liability for future harm;[26] thereby reinforcing the limiting nature of causation.[27]
The same difficulty extends into the features of control, proximity, and interdeterminacy. Control over a single decision does not translate into control over the harm itself, which depends on the actions of numerous independent actors.[28] More fundamentally, climate harm implicates an open-ended class extending indefinitely into the future, including persons not yet born. As recognised in Sharma,“rolling events” with no meaningful limits on who is harmed, when, or to what extent makes liability effectively unbounded.[29] As a result, liability would be “ongoing into the future,” detached from the finite structure of negligence.[30]
These features collectively reveal a structural incompatibility: climate harm’s cumulative, diffuse, indeterminate, and intergenerational nature precludes it from being converted into legal responsibility via negligence. This presents the issue of whether responsibility can operate across time at all, which calls for engagement with the philosophical foundations of responsibility and intergenerational obligation.
IV JURISPRUDENTIAL FOUNDATIONS
A Foundations of Private Law
The structural limits identified in Sharma are not contingent features of negligence. Rather, they reflect what private law fundamentally is. Ernst Weinrib’s account of corrective justice holds that tort liability requires a strictly correlative relationship between the parties, such that the defendant’s act and the plaintiff’s injury constitute the active and passive poles of a single normative transaction.[31] The justificatory reasons that ground the defendant’s liability must be the same reasons that vindicate the plaintiff’s claim.[32] Liability cannot arise from the aggregation of diffuse harms across a population,[33] it must instantiate a single bilateral injustice in which doing and suffering are normatively unified.[34]
Climate harm cannot satisfy this requirement, not because the relevant class is large or causation is difficult to trace, but because the connection between act and injury is mediated across time and countless independent actors in a way that prevents a single correlative injustice from ever arising. The bilateral structure negligence presupposes is dissolved by climate harm, hence ruling out any reformulation within the private law framework.
B The Instability of Harm Across Generational Time
The deeper difficulty lies in the concept of harm itself. Derek Parfit’s non-identity problem holds that where present conduct shapes the conditions under which future people come into existence, it necessarily affects which people exist.[35] As personal identity depends on the precise circumstances of conception, including the decisions, relationships, and events that lead to it, any materially different course of conduct would not produce the same individuals in a better condition but an entirely different set of individuals.[36]
The comparison that harm requires, that the plaintiff is worse off than they otherwise would have been, therefore cannot be made. Without the impugned conduct, those persons would not exist at all. They cannot coherently be described as having been made worse off by conditions that were necessary for their existence. Parfit’s point is not that future people suffer less, or that their suffering is harder to measure, but that the person-affecting framework within which harm is assessed breaks down entirely when applied across generational time.[37] The tort, if there is one, cannot be located in any identifiable individual being made worse off, because the alternative is not those individuals flourishing but those individuals never existing.[38]
C Non-Identity in Sharma
This difficulty surfaces obliquely in Sharma. The Full Court’s emphasis on the Minister’s “tiny” contribution and liability extending “ongoing into the future”,[39] reflects not merely causal attenuation but the absence of any determinate plaintiff who can be shown to have suffered legally cognisable injury in Parfit’s sense. The class is indeterminate not only because it is large, but because its members’ very existence is constituted by the conditions that give rise to the claim. A plaintiff whose existence depends on the decisions being challenged cannot satisfy the comparative baseline that harm requires. Negligence’s person-affecting structure makes it incapable of giving legal effect to obligations of this kind, and no incremental doctrinal development can resolve that incapacity. The problem is conceptual, in the sense that it is built into what it means to suffer harm as a matter of private law.
D The Forward-Looking Alternative
Notwithstanding the implications of the negligence law, the intuition that we have genuine obligations toward future generations is both widely held and, as Sharma illustrates, legally contentious. Samuel Scheffler offers a framework for why we ought to care about future generations without relying on person-affecting harm. Scheffler argues that the continued existence of future generations is not merely a background assumption of present life but a condition of its significance.[40] The projects we undertake, the institutions we build, and the environments we preserve derive much of their meaning from the expectation that others will live to inherit and continue them.[41]
On this account, obligations to the future are grounded not in the rights of identifiable future persons who can be wronged, but in the value that future human flourishing confers on present activity. The structure of obligation is therefore forward-looking and collective rather than backward looking and bilateral. It does not ask who has been harmed by whom, but what conditions must be maintained for future human life to have the significance we implicitly assume it will have. This is precisely the kind of obligation that negligence cannot accommodate. Private law has no mechanism for imposing prospective, collective duties in the absence of a determinate rights-holder who has suffered a correlative wrong. The Schefflerian obligation is viewed, by many, as pressing. However, it operates at a register that private law fundamentally cannot address.
E The Institutional Implication
If the obligation to future generations cannot be expressed within a person-affecting framework, as Parfit demonstrates, and if its normative foundations are forward-looking and collective rather than bilateral and corrective, as Scheffler’s account makes clear, then it must be constructed on foundations that private law structurally cannot supply. That construction requires Parliament to directly define the content, scope, and temporal reach of the relevant obligations, displacing the bilateral logic of negligence in favour of a public law framework capable of operating across generational time.
V THE CASE FOR STATUTORY REFORM
As has been illustrated, the law of negligence is ill-equipped to accommodate climate harm of this kind, and any meaningful reform must therefore come from Parliament. The Sharma litigation reflects an institutional limit: allocating responsibility would require courts to resolve “core policy questions” within a framework for which private law is unsuited. The Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill demonstrates how such responsibility could be constructed through statute.[42] It sought to impose forward-looking obligations on decision-makers, expressly incorporating intergenerational equity and scope 3 emissions,[43] and in doing so displaced the bilateral logic of negligence in favour of public law governance.
Comparative experience reinforces this institutional point. In the Netherlands, courts imposed climate obligations through rights-based frameworks, treating responsibility as public rather than as a private law duty between parties.[44] Those outcomes were possible because the relevant legal systems supplied rights-based and constitutional structures that authorised courts to articulate minimum climate obligations. Australian law does not. Responsibility for climate harm must therefore be legislatively defined, with its content, scope, and institutional limits set by Parliament rather than attempted through negligence law.
VI CONCLUSION
Sharma demonstrates that the failure to recognise a duty is not a denial of climate harm, but rather a structural limitation of negligence. As shown, negligence is likely unfit to be applied to climate harm: temporally, because it assumes bounded relationships; causally, because harm is cumulative and diffuse; relationally, because there is no sufficient control or proximity; and doctrinally, because liability becomes indeterminate. These obstacles reflect a deeper structural mismatch.
That mismatch is explained at the level of principle. Corrective justice requires a bilateral, correlative relationship that climate harm cannot supply, while the concept of harm itself becomes unstable across generations. At the same time, the intuition that present actions generate obligations to the future persists, yet these obligations are forward-looking and collective rather than bilateral.
Sharma illustrates that Negligence cannot be stretched to accommodate climate harm without abandoning its core structure; so, if responsibility is to be recognised, it must be constructed legislatively, through a framework capable of addressing cumulative, intergenerational harm in a way private law cannot.
Antonio Oshana is a second-year Bachelor of Laws (Honours) and Bachelor of Arts (Philosophy) student at Monash University with a strong academic interest in negligence law and the broader principles underpinning private law. He has also developed his legal research skills through mooting, where he was a Grand Finalist in the Monash LSS First Year Moot and awarded Best Speaker.
[1] Minister for the Environment v Sharma (2022) 291 FCR 311 (‘Sharma’).
[2] Sharma (n 1) [3].
[3] Ibid.
[4] Sharma (n 1) [7].
[5] Sharma (n 1) [343]-[344].
[6] Sharma (n 1) [882] , [886].
[7] Sharma (n 1) [702]-[704].
[8] Sharma (n 1) [19].
[9] Environment Protection and Biodiversity Conservation Act 1999 (Cth).
[10] Sharma (n 1) [19].
[11] Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 130, 133.
[12] Sharma (n 1) [3].
[13] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774, [1].
[14] Sharma (n 1) [7],[343]-[346].
[15] Sharma (n 1) [343]-[344].
[16] Sharma (n 1) [363], [702]-[704].
[17] Sharma (n 1) [343]-[346].
[18] Sharma (n 1) [362]-[363].
[19] Sharma (n 1) [882]-[886].
[20] Donoghue v Stevenson [1932] AC 562.
[21] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; See also, Richards v Victoria [1969] VR 136.
[22] Chapman v Hearse (1961) 106 CLR 112, 120-1.
[23] Sullivan v Moody [2001] HCA 59.
[24] Note, The plaintiffs did not expressly submit that the Minister owed a duty to future generations. Though, the class ‘Australian Children’ incorporates the unborn by implication.
[25] Douglas A Kysar, ‘What Climate Change Can Do about Tort Law’ (2011) 41(1) Environmental Law 1, 3-4; Pabai Pabai v Commonwealth of Australia [2024] FCA 796, [1090].
[26] Sharma (n 1) [362]-[363].
[27] Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, 1970) ch 16,301.
[28] Sharma (n 1) [343]-[344].
[29] Sharma (n 1) [343]-[344].
[30] Ibid.
[31] Ernest J Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349, 350-1; Ernest J Weinrib, The Idea of Private Law (Oxford University Press, 1995) ch 6, 145-7.
[32] Ernest J Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349, 351.
[33]Ibid 352.
[34] Ernest J Weinrib, The Idea of Private Law (Oxford University Press, 2nd ed, 2012) 145, 145-6; Ernest J Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349, 350.
[35] Derek Parfit, Reasons and Persons (Oxford University Press, 1986) ch 16, 351-2.
[36] Derek Parfit, Reasons and Persons (Oxford University Press, 1986) ch 16, 361-2.
[37]Ibid 358-9.
[38] Ibid 362-3.
[39] Sharma (n 1) [343]-[344].
[40] Samuel Scheffler, Death and the Afterlife (Oxford University Press, 2013) 16.
[41] Ibid 25-6.
[42] Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth).
[43] Explanatory Memorandum, Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) 3-5.
[44] Samantha Climie and Jan McDonald, ‘The Liability of Public Authorities in Negligence: Does Sharma v Minister for the Environment Break New Ground?’ (2025) 29 Tort Law Review 302, 302-3.