UK: Human Rights Boost For Claimants

Last Updated: 10 December 2009
Article by Aidan Thomson

A recent appeal on some preliminary issues in the long running group action of Dobson & Ors v Thames Water Utilities Ltd & Anr addresses some important human rights issues.

The claimants occupied properties near Thames Water's sewage works. They complained of odours and mosquitoes which were alleged to have been caused by the works.

The actions were brought in private nuisance and negligence. Breaches of Article 8(1) of the European Convention on Human Rights ("ECHR") and the Human Rights Act 1998 ("the HRA") were also claimed.

Initially, Thames Water sought to defend these claims on the basis that the complaints actually concerned alleged breach of duties contained in Section 94(1) of the Water Industry Act 1991 (breach of which the Water Industry Act 1991 makes special provision for) and that, therefore, the principle established in Marcic v Thames Water Utilities Ltd applied to deny the claimants a remedy at common law. This argument failed when it was raised as a preliminary issue in the High Court and the case was allowed to go ahead. The High Court did not think that the claimants' common law claim conflicted with the special Water Industry Act provision.

Other issues were also raised as preliminary issues. The High Court's decision on three of them (relating to the assessment of damages under the common law principles and/or the HRA) were appealed to the Court of Appeal.

The first issue that was subject to appeal was whether, or might, damages for nuisance confer a sufficient remedy on those with a legal right to occupy such as to disentitle those living in the same household without such a legal right to a separate remedy under Article 8 and/or the HRA.

The High Court judge had said that damages for nuisance might confer a sufficient remedy on those with a legal right to occupy such as to disentitle those living in the same household without such a legal right to a separate remedy under Article 8 and/or the HRA, adding 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 that there might be circumstances where they will not. The Court of Appeal, following an extensive review of the House of Lords judgment in Hunter v Canary Wharf, answered by saying that an award of damages in nuisance to a person or persons with a proprietary interest in a property will be relevant to the question of whether an award of damages is necessary to afford just satisfaction under Article 8 to a person who lives in the same household but has no proprietary interest in the property.

The second issue was: if damages for nuisance are lower than those a claimant with a legal interest in his or her home could obtain under the HRA, can these damages be "topped up" under the HRA? 

The High Court thought that damages would only be awarded under section 8(3) HRA if, taking account of the measure of damages for nuisance and the availability of alternative remedies, such damages were necessary to afford just satisfaction. An award of damages for nuisance to those with a proprietary interest will usually afford just satisfaction to parents and children. If, despite that, there is a Claimant who still remains a victim because he or she has not received just satisfaction then that person would be entitled to further damages under s.8(3)HRA.

The Court of Appeal was more decisive, stating that it was most improbable, if not inconceivable, that damages at common law will be exceeded by any award to the same claimant for infringement of the HRA. Accordingly the award of damages at common law to a property owner will normally constitute just satisfaction for the purposes of section 8(3) HRA and no additional award of compensation under that Act will normally be necessary.

The final issue was whether or not alternative remedies available to the public, like statutory nuisance and the special procedures for breach of Water Industry Act duties, were relevant to the issue of whether damages for owners/occupiers and/or those without a legal interest in their homes are necessary to afford just satisfaction under section 8(3) of HRA.

The Court of Appeal agreed with the High Court judge that the alternative remedies were all relevant to this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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