In Hanifa Dobson et al v Thames Water Utilities Limited and The Water Services Regulation Authority  EWHC 2021 (TCC), it was established, in principle, that a statutory undertaker may be liable to members of the public in nuisance (caused by negligence), despite the existence of a statutory scheme for enforcement of the statutory undertaker’s statutory obligations.
One of the other issues raised in the Thames Water case related to the assessment of damages and whether a claimant was, in principle, entitled to damages under the Human Rights Act 1998 (HRA). The claimants appealed certain findings of the judge on this issue.
Before considering these issues, we will consider briefly the first instance decision (which we reported on in our September 2007 Updater).
The Thames Water case: first instance decision
The claimants all complained that they were affected by odours from the sewage treatment works and/or mosquitoes which lived and bred as a result of sewage at the sewage treatment works.
The claimants brought claims for damages under:
- the common law of nuisance; and
- the HRA for breach of their rights to respect for “private and family life” or “home”.
It is important to note that the claimants were divided between:
- claimants who occupied properties as owners/lessees; and
- those who occupied properties without any legal interest in the properties.
Damages under the common law of nuisance
It was common ground that only a claimant with a sufficient interest in land would have a claim in nuisance for the escape of odours and the mosquitoes.
The court set out the principles upon which damages will be assessed in the common law of nuisance for the escape of odours and the mosquitoes, i.e. where there has been no lasting damage to the claimants’ land or loss of capital value.
The court held that damages would be assessed:
- on the basis of compensation for diminution of the amenity value of the land (not for causing discomfort to the person); and
- by reference to the size and value of the property (not the number of occupiers).
Damages under the HRA
Under section 8(3) of the HRA:
- The claimants (having been injured by an unlawful act carried out by a public authority), were entitled to damages as were “necessary to afford just satisfaction”.
- The court was entitled to make such order as was “just and appropriate”; and
- The court was required to take into account, when assessing damages, “any other relief or remedy granted” and the principles applied by the European Court of Human Rights in relation to damages.
A child (Thomas Bannister) lived in one of the households. His parents (the owners of the house) were entitled to receive damages under the law of nuisance. Using Thomas Bannister as a test case, the court considered whether it was necessary for the court to make a further award to Thomas Bannister under the HRA.
Was Thomas Bannister entitled to damages under the HRA?
The court held that when the court awards damages for nuisance to those with a proprietary interest:
- those damages will usually afford just satisfaction to partners and children; but
- there may be circumstances in which they will not.
It would all depend upon the facts.
The judge found that Thomas Bannister was not entitled to an award of damages under the HRA.
Dobson v Thames Water Utilities  EWCA Civ 28: The key issue before the Court of Appeal
Where damages were awarded by the court for a transitory nuisance, was it necessary to make an award under the HRA in order to afford “just satisfaction” to a non-property owning member of the same household? In short, was Thomas Bannister entitled to an award of damages under section 8 of the HRA?
Thames Water’s argument: no further damages under the HRA
Thames Water argued that it was not usually necessary to award any further damages under the HRA on the basis that:
- Damages in nuisance to the property owner were awarded for loss of amenity in respect of the “whole property”.
- Thus, if damages were awarded to a person without a legal interest in the property but in respect of his presence on the property, Thames Water would be doubly liable for the same loss.
The claimants’ argument for further damages under the HRA
The claimants argued that the claims of the property owner in nuisance were different in character from the personal claims under the HRA:
- a claim in nuisance was assessed by reference to the effect of the nuisance on the value of the land (both market value and amenity value); whereas
- a claim under the HRA was assessed by reference to the effect on the individual of the odours or mosquitoes.
It was therefore irrelevant to an award of damages under the HRA whether or not there has been an award of damages in nuisance to the property owner.
The Court of Appeal’s approach
The Court of Appeal reviewed the authorities:
- The role of damages under the HRA was to make an award where the court considered it “just and appropriate” to do so. In other words, the court had a broad discretion to award compensation; and, when awarding compensation, had to take into account the principles applied by the European Court of Human Rights.
- In contrast, in common law claims the claimant had a right to damages, to be restored to the position he would have been in if he had not suffered the injury in question (so far as money can achieve this).
- It was not clear how the European Court of Human Rights would view claims brought by more than one person in a household and how it would react to the fact that one member of the household had recovered damages for nuisance in the courts of a member state.
The Court of Appeal’s findings
The Court of Appeal found:
- Whilst the court had “considerable sympathy” for the judge’s conclusion that there should be no separate award to Thomas Bannister, it was not possible to determine whether it was just, appropriate and necessary to award damages to Thomas Bannister until the case had been tried.
- If, in practice, the effects of odour and mosquitoes on Thomas Bannister were taken into account in determining the diminution in the amenity value of the property, the amount of damages awarded to his parents in nuisance would be a “highly significant consideration” in relation to the quantum of any award to Thomas Bannister.
- If it were thought necessary to make an award, damages on such issues would not be substantial.
- If a property owner obtained damages at common law for nuisance it was highly improbable, if not inconceivable, that the European Court of Human Rights would think it appropriate, just or necessary to award such owner a further sum (on top of such damages) for breach of the HRA.
It is interesting that Thames Water did not appeal the decision at first instance that a statutory undertaker may, in principle, be liable to members of the public in nuisance (caused by negligence) even though there is a statutory scheme for enforcement of the statutory undertaker’s statutory obligations.
Even though the Court of Appeal found that the judge was wrong to hold that Thomas Bannister was not entitled to an award under the HRA, statutory undertakers will presumably take comfort from the Court of Appeal’s findings that:
- even if an award of damages under HRA was appropriate to a non-property owning claimant, the amount of any damages would not be substantial; and
- no award under the HRA would normally be appropriate in favour of a property-owning claimant.