Dobson & Ors v Thames Water Utilities Ltd (No 2) [2011] EWHC 3253 (TCC) (08 December 2011)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

Essentially, the Claimants allege that the way in which Thames Water have operated Mogden STW from 1999 to 2009 has caused a nuisance by way of odour which is actionable because, in breach of their duty under Allen v Gulf Oil Refining Ltd [1981] AC 1001, Thames Water have failed to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons. They also say there was a failure by Thames Water to make a sufficiently strong case to Ofwat to obtain funding to carry out necessary capital works or projects or that Thames Water failed to use their other resources to carry out those works or projects.

Thames Water says that a number of allegations made by the Claimants are not justiciable by this court in the light of the decision of the House of Lords in Marcic v Thames Water Utilities Limited [2004] AC 42 but, in any event, they have not failed in performing their Allen duty.

Claimants' submissions

The Claimants allege a breach of Article 8 of the ECHR which provides:

"1. Everyone has the right to respect for his private and family life, his home,

and his correspondence.

2. There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Claimants submit that if the court finds the nuisances above proved, there has been an actual interference with the Claimants' homes for the purposes of Article 8 ECHR. Further, if there has been an actual interference with the Claimants' homes then they submit that they are victims of an unlawful act for the purposes of section 7(1) of the Human Rights Act 1998.

The Claimants say that if the court finds that the Claimants are victims of an unlawful act that constitutes a breach of their Article 8 rights then the court should make a declaration to that effect.

The Claimants submit that it is necessary for the court to award damages to the Schedule B children Claimants, even if their parents have received damages in nuisance.

They refer to the First Judgment in this case where I said at [226]:

"I consider that, where such damages are to be awarded to an individual, the measure of non-pecuniary damages for a victim of a human rights violation in this type of case is damages for inconvenience, mental distress and physical suffering, taking into account all relevant circumstances including factors such as age, the victim's state of health and the duration of the situation complained of, together with any special damages that can be proved".

They say that for most Claimants the duration of the nuisance is at least ten years.

They say that a distinction has to be drawn between damages in nuisance for loss of amenity and damages under the Convention for physical suffering and mental distress. For instance, in relation to Thomas Bannister, he describes the effect of mosquito bites and, in particular, the mental distress they cause, the fact that he now uses a mosquito net all year round but it is uncomfortable. The Claimants submit that these matters are personal to Thomas Bannister and he cannot be afforded just satisfaction in relation to them by an award made to his parents for nuisance. Thus it is necessary to make an award of damages to him.

As far as Clive Bannister is concerned, he lived at 34 Arnold Crescent between December 1997 and June 2009 but has no legal interest in the property which is owned solely by Susan Ford. He is no longer living with her and there is no guarantee that he would get any of the monies a court might award her in nuisance. In the circumstances the Claimants submit it is necessary to make an award of damages under Section 8 HRA to Clive Bannister.

The Claimants submit that the court should exercise its discretion under section 7(5) of the Human Rights Act 1998 and impose a limitation period of six years from the date on which the Claimants commenced these proceedings. They submit that this would be consistent with a limitation period in nuisance under s.2 of the Limitation Act 1980, in practice, they say that this would be 2 October 2000, the date of implementation of the Human Rights Act 1998.

The Claimants submit that a one year period was enacted as the primary period to reflect the fact that most HRA claims concern administrative actions in a similar way to judicial review claims.

They refer to my decision in Dobson v Thames Water at [245] where I said, "I consider that in determining a limitation issue under section 7(5)(b) HRA the court should exercise its discretion, by analogy with section 33 of the Limitation Act 1980, having regard to all the circumstances of the individual claimant. In doing so, one of those circumstances will be the circumstances of the group in a group action. Those circumstances may affect the individual."

The Claimants raise a number of points in relation to the criteria in section 33(3). First, they say that there was no delay in bringing the action as the Claimants acted promptly after the decision of the District Judge in November 2004. Secondly, as Thames Water have, in any event, to deal with claims going back to 1999, there can be no difficulties with adducing evidence in respect of claims that could not be brought before October 2000. Thirdly, the Claimants adopted submissions which they had made at one stage in respect of deliberate concealment under section 32 of the Limitation Act 1980. Fourthly, some Claimants were under 18 and thus under a disability for limitation purposes. Fifthly, that the Claimants acted promptly and reasonably after the District Judge's decision and, lastly, that after that decision they took relevant legal advice.

In addition, in respect of the children Claimants, they submit that the court should take into account the provisions of section 28(1) and (2) of the Limitation Act 1980.

The Claimants say that the amount of any award of damages is to be determined in accordance with the principles applied by the ECHR and they refer to s.8(4) of the Human Rights Act 1998.

Decision

In this case, in determining the question of whether it is necessary to award damages to the children to afford just satisfaction, I take into account the fact that I have awarded damages for nuisance to their parents and that in doing so I have reflected the whole family loss of amenity. I also take into account the fact that I have made a declaration of rights under Article 8 and of the fact that there are remedies under sections 80 and 82 of the Environmental Protection Act 1990 by way of abatement notices and by way of a complaint to Ofwat under s. 94 WIA which are both relevant to the issue of whether damages are necessary to afford just satisfaction under section 8(3) of HRA.

In taking account of the principles applied under Article 41, I have not been referred to any further decisions than those I considered in the First Judgment and as Waller LJ said at [43] in relation to the principles applied by the European Court under Article 41 "All one can say with any certainty is that damages have been awarded for non-pecuniary loss, i.e. for inconvenience and distress, in pollution cases. What is not at all clear is quite how Strasbourg 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."

I also note that there is nothing further as to the particular circumstances of Thomas Bannister other than what I had before me at the time of the First Judgment nor anything which is particular to the circumstances of the other Claimants who are children living in their parents' home.

In all the circumstances, taking account of the matters set out above, I am not satisfied that an award of damages is necessary to afford just satisfaction to those Claimants. I therefore do not award damages under section 8 of the HRA to Owen Thomson, Carys Thomson, Huw Thomson, Rhiannon Taylor, James Bannister, Thomas Bannister, Joe Edwards, Allister Edwards, Charley Spurell, Jessica Spurell, Ciara Foord or Niamh Foord.

Other occupiers

There are three other people to be considered: Clive Bannister, Crystal Allan and Casey Allan. In respect of each of these I have to decide whether an award of damages is necessary to afford just satisfaction to them.

In the case of Clive Bannister, he lived with Susan Ford for 12 years and his sons James and Thomas live there. In awarding damages for nuisance to Susan Ford I have taken into account the loss of amenity which has been suffered by Clive Bannister but, in his case, because he did not have a proprietary interest, the damages are not awarded to him. However I consider that those damages are still part of the circumstances that I have to consider in deciding whether an award of damages is necessary to afford just satisfaction to Clive Bannister.

In approaching the question I have to consider the remedies which are available to provide just satisfaction to Clive Bannister. As Lord Woolf said in Anufrijeva damages are not an automatic entitlement but a remedy of last resort. The principal objective of the Convention is to declare any infringement and put a stop to it. The interests of an individual, rather than the wider public, are only part of the matters for consideration. The concept of just satisfaction is therefore a concept which has to be distinguished from the right to damages awarded for breach of common law obligations.

Clive Bannister stated in his witness statement that he felt that Thames Water had not fulfilled their duty to the residents around Mogden STW which reflects the wider concerns. He fairly points out, though, that he is pursuing his claim separately on the basis of the detrimental effect which the odour had on his home and personal life for a significant period of time. As was pointed out by Waller LJ the European Court has awarded damages for non-pecuniary loss for inconvenience and distress in pollution cases.

I have to take into account all the circumstances. In this case those include the declaration of infringement, the remedies available under the sections 80 and 82 of the Environmental Protection Act 1990 by abatement notices and by way of a complaint to Ofwat under s. 94 WIA, the fact that damages have been awarded for nuisance and the fact that Clive Bannister lived at the property as a family member. On balance, I am satisfied that in those circumstances an award of damages is not necessary to afford just satisfaction to Clive Bannister.

In relation to Crystal Allan, she was living with her daughter, Casey, as a family member at 86 Summerwood House. Mr Bayne stated in his witness statement that he lived in the house with his twin daughters and that Crystal was a close friend and he cared for her and Casey as if they were his own daughters. Mr Bayne's witness statement deals with the problems of mosquitoes for Casey but mentions nothing about any particular effect of odour on Casey who was born on 7 June 2002 and lived at the house from her birth until 1 April 2005 when she was nearly three years old.

As I stated in relation to Clive Bannister, one of the relevant circumstances is that Crystal Allan and Casey were living with Mr Bayne as family members and I consider that, in that context, the fact that an award of damages for nuisance has been made to Mr Bayne is also relevant. As with Clive Bannister I take into account the other circumstances which include the declaration of infringement and the remedies available under sections 80 and 82 of the Environmental Protection Act 1990 by abatement notices and by way of a complaint to Ofwat under s. 94 WIA. Again, on balance, I am satisfied that in those circumstances an award of damages is not necessary to afford just satisfaction to either Crystal Allan or Casey Allan.

It follows that I do not award any damages for breach of Article 8 in the particular circumstances of this case.

The Claim for an Injunction

The Claimants seek an injunction in the following terms: to restrain Thames Water by itself, its servants or agents from causing or continuing a nuisance from Mogden STW (the Works), other than is the inevitable consequence of the Works being operated without negligence, by way of odour and mosquitoes to the Claimants herein after 31 December 2012.

The Claimants' submissions

The Claimants rely on Mr Peirson's evidence that unless further works are done there will continue to be a nuisance from Mogden STW, They submit that the injunction does not need to set out detailed terms as an injunction simply saying "No more nuisance by the end of 2012" is sufficient and they rely on the decision in R v Falmouth & Truro Port Health Authority Ex p. South West Water Ltd [2001] QB 445 at 462E to 469G.

Whilst the Claimants accept that the Falmouth case was concerned with statutory nuisance, they submit that the underlying principle is the same. They say that the court can exercise its discretion either by making a detailed order or by simply saying abate/stop the nuisance within a certain period of time. They accept that it may be fairer and more convenient for Thames Water if they are simply told to stop the nuisance by 2012.

The Claimants also submit that, given that the case involves Human Rights, the ECHR does not specify measures but simply requires an end to the breach. They refer to the decision of the European Court of Human Rights in Ledyayeva v Russia [2006] ECHR 896 where they said at [117]:

"As regards other applicants, the Court notes that they are still residing within the zone. The Court notes that the resettlement of them in an environmentally safer area (a measure sought by the applicants before the domestic instances) would be only one of many possible solutions. The Court is conscious that there are other possible ways of reducing the negative effects of the plant's activities on those who, like the applicants, reside in the vicinity of it. Therefore, given the complexity of the situation, and in line with its approach to Fadeyeva v Russia [2005] ECHR 55723/00, the Court will not prescribe any particular legal, administrative or other measure to be adopted by the Government. According to art 41 of the Convention, by finding a violation of art 8 in the present case, the Court establishes the Government's obligation to take appropriate measures to remedy the applicant's individual situation. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under arts 41 and 46 of the Convention, provided that such means are compatible with the conclusions set out in the present judgment (see Scozzari and Giunta v Italy [2000] ECHR 39221/98 at para 249), in particular, with the two alternative solutions examined by the Court (see para 110 above)."

Thames Water's submissions

Thames Water submit that no such injunction should be ordered. They object to an injunction on a number of grounds.

First, they say that there is no prima facie case of a continuing nuisance and the order is expressed not to come into force until the end of 2012. They say that this recognises that whilst major further work is being carried out it would be inappropriate to seek an immediate order. They refer to various projects: Project 59HF to cover and treat processes; Project 7H9G the East side PST/FST conversion and Project 5X8F, the West side expansion works. Thames Water submit that it would be inappropriate to make an order which seeks to predict and regulate a state of affairs some time into the future, not least because the impact of the West side expansion works can only be properly assessed when the works are completed. They say that, in particular, the court cannot be satisfied now that MTSW in 2013 and onwards is likely to cause odour amounting to a nuisance, unless restrained by such an order which is a critical finding required before such an injunction can be granted. They refer to Mr Peirson's acceptance that he could not give an opinion as to the position on odour emissions in 2013. They say that similar grounds invalidate any claim in respect of mosquitoes.

Thames Water submit that, even if there otherwise prima facie reasons for making an order in the form sought by the Claimants, it would be wrong to do so on the facts of this case. They refer to the principles to be derived from Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287as re-stated and explained by the CA in Watson v Croft [2009] 3 All ER 249 at [44] to [46] and [51], approving the following summary by Mummery LJ in Regan v Paul Properties Limited [2006] EWCA Civ 1391 at [36] as to the relevant principles to be derived from Shelfer as:

"(1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant's legal right.

(2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights on payment of damages assessed by the court.

(3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is "a tribunal for legalising wrongful acts" by a defendant, who is able and willing to pay damages: per Lindley LJ at pages 315 and 316.

(4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right "except under very exceptional circumstances." (per Lindley LJ at p 315 and316).

(5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant's legal rights was small; whether the injury could be estimated in money; whether it could be adequately compensated by a small money payment; whether it would be oppressive to the defendant to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction: see AL Smith LJ at pages 322 and 323 and Lindley LJ at page 317."