Dobson & Ors v Thames Water Utilities Ltd & Anor

The statutory enforcement scheme for sewerage duties does not automatically exclude every common-law or human-rights claim. The Marcic principle precludes claims requiring the court to determine matters inconsistent with, or conflicting with, the regulatory process under the Water Industry Act 1991. Claims based on negligent physical operation or operational management may proceed where adjudication would not create that conflict. Whether a claim falls within the boundary is a question of fact and degree. Damages for a temporary nuisance ordinarily reflect diminution in letting or amenity value, rather than personal discomfort. Human-rights damages are available only where necessary to provide just satisfaction after considering common-law damages and alternative remedies. The limitation discretion under the Human Rights Act 1998 must have regard to all the individual claimant’s circumstances, including relevant group-action circumstances.

The claimants were residents near Mogden Sewage Treatment Works. They alleged nuisance, negligence and breaches of article 8 and article 1 of the First Protocol to the Convention arising from odours and mosquitoes. Thames Water argued that the complaints concerned statutory duties under section 94(1)(b) of the Water Industry Act 1991, enforceable by Ofwat under section 18, and that the claims were barred by Marcic v Thames Water Utilities Ltd [2004] AC 42.

The Technology and Construction Court determined preliminary issues concerning the scope of the statutory duties, the availability of common-law and Human Rights Act remedies, damages, just satisfaction and limitation.

1. Statutory duty. Section 94(1)(b) imposes duties both to empty sewers and to make provision for effectually dealing with their contents. On its natural meaning, effectual dealing may require treatment, including treatment rendering sewage reasonably harmless and inoffensive. Odours and insect infestations at a sewage treatment works may therefore show that the contents have not been effectually dealt with.
2. Scope of Marcic. The Marcic principle precludes a nuisance claim based on the Leakey principle where the claim requires the court to enforce a statutory duty in a manner inconsistent with the regulatory scheme. It also applies to negligence, nuisance involving negligence and Human Rights Act claims to that extent. Section 18(8) preserves causes of action available otherwise than by virtue of the statutory contravention.
3. Operational negligence. A claim may proceed where, as a matter of fact and degree, adjudication concerns negligent physical operation or operational management and does not conflict with Ofwat’s regulatory role. Major plant renewal and capital-investment choices are more likely to fall within the excluded area; cleaning, maintenance and comparable operational matters are less likely to do so. The issue cannot finally be determined on assumed pleadings alone.
4. The claim alleging failure to press for capital funding for odour expenditure before 2000 was not precluded. Lack of funding generally does not itself provide a defence to negligence.
5. Damages. Temporary nuisance damages ordinarily reflect diminution in letting or amenity value, not personal discomfort. If valuation is not reasonably or practicably ascertainable, general damages for loss of amenity may be awarded.
6. Damages awarded for nuisance to a person with a proprietary interest will usually provide just satisfaction to partners and children in the household, but the issue remains fact-sensitive. Human-rights damages require consideration of nuisance damages and alternative remedies, and are awarded only if necessary to afford just satisfaction.
7. Under section 7(5)(b) of the Human Rights Act 1998, the court exercises its discretion by analogy with section 33 of the Limitation Act 1980, having regard to all circumstances of the individual claimant. Group circumstances may be relevant but are not determinative. The preliminary issues were answered accordingly.