Dobson & Ors v Thames Water Utilities Ltd (No 2)  EWHC 3253 (TCC) (08 December 2011)
In this case the Court delivered a judgment regarding the relevance of the Human Rights Act 1998 (UK) (HRA) and European Convention on Human Rights to a claim for nuisance in an environmental law proceeding. The decision is important for ensuring consistency between human rights and common law jurisprudence.
The case concerned a group of claimants living in the area surrounding the Mogden Sewage Treatment Works in Isleworth, Middlesex. They were separated into two groups: property owners or lessees, and occupiers with no legal proprietary interest.
The claimants contended that the running of Mogden by Thames Water Utilities Limited created a nuisance in the form of an odour and mosquitoes, breaching their duty to undertake their operations with due consideration for the interests of other parties.
The claimants sought damages against Thames Water under the common law tort of nuisance. They also sought a declaration and, if required, damages for breaches of their right to privacy contained in article 8 of the Human Rights Act and Convention.
The claimants argued that article 8 of the Convention had been breached. It states:
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…
Whilst the majority of the Court's judgment focused on the nuisance claim, the human rights aspect centred on three issues.
The claimants argued that the one year limitation period afforded by s 7(5) of the Human Rights Act should be extended to place it in line with that for a nuisance claim, which is six years under s 2 of the Limitation Act 1980 (UK). Thames Water contended that there were no special circumstances to warrant such an extension. The Court agreed with the claimants, concluding that it did not make sense to have two different limitation periods and it "should [therefore] exercise its discretion, by analogy with...the Limitation Act...having regard to all the circumstances of the individual claimant" and extend the limitation period to six years.
Thames Water submitted that a breach of a tort does not correlate to a human rights breach as they have distinct tests. They contended that even if considerable inconvenience and annoyance was proved, it was not to an extent that breached article 8. In the further alternative, they said that any breach of article 8(1) was warranted by article 8(2) because Thames Water were fulfilling their statutory duty under s 94(1)(b) of the Water Industry Act 1991. Consequently, they argued that no unlawful acts occurred under s 6(1) of the Human Rights Act, which states, "It is unlawful for a public authority to act in a way which is incompatible with a Convention right".
Justice Ramsey determined that "because [he had] held that Thames Water failed to carry out the work and conduct...operations...with all reasonable regard and care for the interests of other persons...it follow[ed]...that [they] failed properly to respect the rights of the claimants and did not do all that they reasonably could to prevent" the odour and mosquitoes. Exception was not made for compliance with the Act and so unlawful acts were, he concluded, also committed under s 6(1) of the Human Rights Act. In his judgment, Justice Ramsay's analysis gave rather cursory attention to the breach of the Human Rights Act ‑ instead he appeared to rely on his detailed analysis and extensive reasoning in coming to a conclusion on the negligence claim.
The issue of what damages should be awarded was given great consideration in the judgment.
Justice Ramsay noted the comparison that Lord Woolf CJ made in Anufrijeva v Southwark London Borough Council  QB 1124 between damages under the Human Rights Act and common law. In contrast to common law, under the Human Rights Act the court maintains "a wide discretion in respect of the award of damages for breach of human rights”. Damages are "not an automatic entitlement but...a remedy of last resort". Furthermore, the principle objective is a declaration of the unlawful act so damages are, consequently, secondary.
Justice Ramsay's concern was "whether damages for nuisance might or do confer a sufficient remedy on those with a legal right to occupy so as to disentitle those living in the same household to a separate remedy" under the Human Rights Act. Should a declaration stating a breach of article 8 rights suffice, no additional damages would be awarded.
The Court concluded that the original damages award under the nuisance claim would suffice, as the circumstances of all claimants had been taken into account at that stage. Accordingly, this demonstrates that the Court will not allow 'double-dipping' and award costs twice when an adequate amount has already been received.
Relevance to the Victorian Charter
Unlike the UK, the Victorian Charter provides that a human rights claim must be brought together with an existing cause of action under common law (s 39(1)). There are also no damages awarded for a breach of the Charter and so a declaration is the sole remedy available (s 39(3)). Consequently, should a similar case be brought in Victoria, claimants would need to bring an action under common law to receive damages and then raise the question of a declaration as part of that case. Nevertheless, this UK decision is important whilst the Charter is under review, as submissions are being made to amend the Charter to allow for both a free-standing cause of action and damages. Experience in the UK shows that, since the Human Rights Act was implemented in 2000, only two awards for damages have been successful, signifying that should the Victorian Charter be amended the floodgates will not open with new claims.
The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/TCC/2011/3253.html
Bianca Parussolo is a Summer Clerk at DLA Piper Australia