Smith v Fonterra and the Climatisation of Tort Law

Abstract

How should tort law respond to climate change? In Smith v Fonterra, New Zealand's Supreme Court provided some important answers. This note summarises the decision, and situates it within broader debates about the function of tort law and its necessary evolution in response to climate change. The Supreme Court's decision hints at possibilities for the ‘climatisation’ of tort law, and highlights the double life of tort law as both a backward‐looking mechanism of corrective justice, and a forward‐looking mechanism of risk regulation. As climate‐related harms intensify, the question will be how, rather than if, tort law evolves to meet the challenge. Smith v Fonterra may be one of the first cases to ask that question, but it will not be the last.