Teaching Sequence

Work through this resource material in the following sequence:

15 minutes	Part A: Duty of care
20 minutes	Part B: Discussing the case
20 minutes	Part C: Make a case for an appeal
05 minutes	Reflection

Part A: Duty of care

Step 1.

Ask students to define the term 'duty of care'.

One definition might be: 'A duty of care is a legal obligation to take reasonable steps to not cause foreseeable harm to another person or their property.'

Step 2.

Explain to students that a duty of care is breached when ‘someone is injured because of the action (or in some cases, the lack of action) of another person when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way.'

It would be useful to make this definition visible for students throughout this lesson, perhaps by writing it on the board.

This is a pretty wordy definition (as laws tend to be). Work together as a class to come up with an easier to understand definition.

For example: 'A person fails their duty of care when they do something they know will cause injury, or they don't do something to prevent an injury, and someone ends up getting injured.'

Step 3.

Can students list a few examples of well-known duties of care?

Our parents have a duty of care to look after us.

Construction workers on a job site might have a duty of care to stop bricks from falling on the heads of pedestrians walking on the footpath below.

Step 4.

It's important to further define two terms from the earlier definition.

What is meant by 'reasonable'?

It's pretty fair that our parents provide enough food for us, as kids shouldn't really be expected to have to buy and cook their own food (although some can and do).

It's probably unreasonable that our parents spoon-feed us every night (unless we're a baby).

Would it also be unreasonable for our parents to cook us a three-course meal, three times a day? Why?

Discuss. It could be argued that that really would be fulfilling their duty of care.

Step 5.

What is meant by 'foreseeable'?

If the construction worker is laying bricks for the wall of a ten storey building, they can probably imagine a future where a brick is accidentally dropped and hits someone below on the head, causing injury. They are high, they're working with bricks, and bricks are heavy. So the law says the construction worker should take steps to prevent this from happening, or they will be in trouble if it does.

However, it's probably unforeseeable that a monkey breaks out of the local zoo, climbs the construction site, and starts throwing screwdrivers at everyone, injuring some.

Discuss. Should we be expected to think of every possible thing that could go wrong and might harm someone under our duty of care? Also, is it fair that the person is still injured but the construction worker isn't responsible for the monkey?

Step 6.

What about another example. What if someone walking past the job site inhales a little bit of dust, which is later found to be toxic, and the person develops lung cancer. Is that reasonable foreseeable by the construction worker? Discuss.

Part B: Discussing the case

Step 1.

Explain that the Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science related to climate change.

In 2021-22, the IPCC released their sixth assessment report. This is the most up-to-date physical understanding of the climate system and climate change.

The report makes a number of important points:

It is unequivocal that human influence has warmed the atmosphere, ocean and land.
Global surface temperature will continue to increase until at least mid-century under all emissions scenarios considered. Global warming of 1.5°C and 2°C will be exceeded during the 21st century unless deep reductions in CO₂ and other greenhouse gas emissions occur in the coming decades (B1). The report describes five possible climate futures, where #1 is not great and #5 is extremely bad. If we want to keep global warming at less than two degrees, which the IPCC says is the best-case scenario, we need to reduce our CO₂ and greenhouse gas emissions significantly and start right away.

Step 2.

Discuss: Does the impact of climate change on the planet and young people meet the threshold of 'reasonably foreseeable'.

The IPCC says definitely yes.

Step 3.

Individually or as a class, read about the case of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, available on the Student Worksheet.

It's important to note that the courts do not make the law, they only apply the legislation as it is written. In this case, the court found that the current environmental laws did not make the Minister for the Environment responsible for personal harm caused to Australian citizens by climate change.

Step 4.

Discuss the case.

The court found, similar to the IPCC, that there would be unequivocal harm to Australia's youth and environment caused by climate change. Just not that the Minister for the Environment is responsible for this. How do students feel about this? Can the harm be unequivocal without anyone being responsible for that harm?
Do students think the Minister for the Environment should be responsible for the impacts of climate change on Australia's youth and environment? Why or why not? In other words, does the government have a duty of care to its citizens similar to the duty of care a parent has to a child? If so, how far does this extend? What risks are 'reasonably foreseeable' that the government should be working to protect Australia's citizens against?
If the Minister is responsible, what can and/or should they do, to reduce the potential harm? Would these precautions be considered 'reasonable'?
If the Minister can do something, and they choose not to, do students think this violates the Minister's duty of care to the youth of Australia?

Part C: Make a case for an appeal

Step 1.

The High Court of Australia is the highest court and the final court of appeal in Australia. Sharma and Sister Brigid can take one more shot at arguing their case in the High Court.

Independently, students are going to write this appeal, as a lawyer for either the litigant or the defendant.

Students should explain their understanding of the judgements that have already been made, and how the law was applied in this case.

They should then argue how the law was incorrectly applied, and that there is a “sufficient closeness and directness” between the minister’s decision and the risk of harm to young Australians. They should use their understanding of climate change's impact on the earth and people, and the link between large carbon emissions by national industries and increasing climate change impacts.

Alternatively, students might argue that the law, as written, has been correctly applied, and that “the control of carbon dioxide emissions, and the protection of the public from personal injury caused by the effects of climate change” were not responsibilities of the minister under Australia’s environment laws.

Reflection

Remind students that the courts do not make the law. The courts apply the law as it is written. If the courts make a finding, it is not their fault if it does not sit well with the public, and in fact they have no power to make a different finding just because they might disagree with it. There are hundreds of years of common law precedent informing the judges how they must find in this case. The fault is ultimately with the government for the way the law is written.

How do students feel about this? Can they reconcile their disappointment with the finding with the fact that the law may have been applied directly, and that the judges were doing their jobs correctly?

Do students think that Sharma's quite novel approach of bringing action against the Minister for the Environment is a good way of changing public policy?

Teacher reflection

Take this opportunity to reflect on your own teaching:

What did you learn about your teaching practice today?
What worked well?
What didn't work so well?
What would you share?
Where to next?
How are you going to get there?

IPCC - Does the government legally have to protect young people from climate change?

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