In a further stage in the saga of claims by local residents in respect of odour and mosquitoes arising from the operation of Thames Water's Mogden sewage treatment works, the Court of Appeal has considered some tricky questions regarding the rights of homeowners and others living in the same household to obtain damages for nuisance and/or breach of their human rights. The decision is important in determining the exposure to claims by affected local residents of sewerage companies in a similar situation to Thames Water with issues arising from uncovered sewage treatment tanks.
The Court of Appeal framed the questions it was required to answer as follows:
- The proper basis for awards of damages for nuisance which have not caused any lasting damage or loss of capital value to the property itself.
This required interpretation of the House of Lords decision in Hunter v Canary Wharf. Damages were to be decided based on the loss of amenity which might be established by a drop in the rental value of the property. In deciding what this value might be, the size, commodiousness and value of the property was the starting point, but the actual inconvenience being caused to people currently living at the property would be relevant. Only actual inconvenience suffered was relevant. Thus if the property was currently standing empty, no notional suffering could be taken into account.
- Whether the damages awarded to the legal owner of the property are given to it on behalf of itself and of other members of its household.
The Court could not find any support for this idea. Nuisance damages are granted only for the property owner's benefit.
- On what basis would human rights damages be awarded for the type of inconvenience suffered by owners and non-owners?
Damages for human rights breaches are, in any event, discretionary and only awarded as a last resort, taking into account all the circumstances and with the purposes of providing 'just satisfaction' where other remedies are unavailable in respect of the same acts.
There was no dispute that the nature of the odour and mosquitoes problem potentially entitled residents to claim a breach of their human right to enjoyment of their homes. However, as decided in an earlier hearing in this case, where in the circumstances the sewerage undertaker was also in breach of its statutory duty under the Water Industry Act 1991, claims at common law could only be brought by private individuals where the undertaker was alleged to have been negligent. In cases not involving such negligence, the Court of Appeal now stated that none of the residents would be able to bring a human rights case, regardless of whether they were the homeowner.
Moreover, a human rights claim was only possible here due to the fact that Thames Water, as a public sewerage undertaker, is considered to be a public authority for these purposes.
- If nuisance damages had been awarded to the homeowner, what would be the effect on human rights damages for non-owners in the same household?
The Court found that damages paid to the homeowner in nuisance might be relevant to the question of whether persons living in the same household had received 'just satisfaction', since those damages were paid in respect of the same 'acts' by Thames Water. But the Court of Appeal judges were unwilling to come to a firm decision as to the entitlement of particular categories of non-owner, eg children of homeowners. This would need to be decided at the main hearing in light of all the circumstances. The Court thought it highly improbable, if not inconceivable, that a homeowner who had received damages for nuisance caused should be entitled to an amount on top for breach of his human rights. The final issue to be considered by the Court was whether the availability of other remedies such as the right to apply for an abatement order for statutory nuisance and the procedure for bringing a complaint to Ofwat, would prevent non-owners being able to bring successful human rights claims. The judges were doubtful that it would.
Case reference: Dobson & ORS V Thames Water Utilities Ltd & Anr  EWCA Civ 28
For a copy of the judgment in the case click here.