Case Brief: Smith v Fonterra Co-Operative Group Limited & Ors [2021] NZCA 552

November 3, 2021

The Court of Appeal dismissed Mr Smith’s appeal and allowed the respondents’ cross-appeal, with the effect of striking out Mr Smith’s claims for breaches of tort law relating to climate change.


Mr Smith is an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for Iwi Chairs Forum. He alleged greenhouse gases released by the respondents contributed and will continue to contribute to dangerous anthropogenic climate change, which will disproportionately affect poor and minority communities.

He filed a claim alleging public nuisance, negligence and a new tort of breach of duty against the respondents for their release of greenhouse gas emissions. He asked the court to issue declarations that the respondents have each unlawfully caused or contributed to the effects of climate change or breached duties owed to Mr Smith, as well as injunctions requiring the respondents to produce or cause zero net emissions by 2030.

The High Court struck out the claims for public nuisance and negligence but allowed the claim for a new tort of breach of duty to continue. The parties appealed these decisions to the Court of Appeal.

The Case

Should the Court recognise a new tort?

The common law changes incrementally over time and new torts can be recognised as modern expressions of existing torts. However, the Court considered the proposed new tort would represent a major departure from fundamental principles of common law and was not similar enough to negligence to be recognised.


No other tort in New Zealand, or anywhere in the world, is recognised where the entire population is both responsible for causing harm and a victim of it. Mr Smith could not point to any principled reason for singling out the respondents and the fact they were profit-making entities did not change the nature of the alleged wrong.


The alleged wrong was described in terms of net emissions, meaning the Court was asked to order the respondents to offset their emissions, not stop producing them at all. This does not sit well with tort law, which is about stopping unlawful actions.


Overall, the Court found the common law was not an appropriate or adequate vehicle for dealing with climate change, which they state requires a sophisticated regulatory response at a national and international level. No remedies in tort would meaningfully address the harm and action could only be taken on an arbitrary case-by-case basis. A shared common approach is also more consistent with kaitiakitanga.


Mr Smith's other claims

Mr Smith appealed the High Court’s decision to strike out his claims for nuisance and negligence. The Court of Appeal considered climate change harms could be considered a public nuisance as they breach the common law right to public enjoyment. However, Mr Smith could not point to any special damage he suffered that separated him from the public generally. In addition, any harm suffered was consequential and not the direct result of the respondents’ actions.

The Court also found that, although it could not rule out the foreseeability of harm caused by the respondents’ emissions, there was not a close enough connection between Mr Smith and the respondents to give rise to a duty at common law. Nor was there any way of readily identifying all contributors and all victims of the harm.


The claim was struck out in its entirety. However, because Mr Smith's concerns were genuine public interest ones, the court declined to order costs.

If you would like to understand more about this case, please contact Senior Solicitor, Aimee Dartnall.

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