Dobson & Ors v Thames Water Utilities Ltd and Anor

In transitory private nuisance causing loss of amenity, damages compensate injury to land rather than occupants’ personal discomfort. They are assessed by reference to the property’s size, commodiousness and value, not the number of occupiers, although actual experience may provide evidence of amenity loss. A property owner does not recover on behalf of non-proprietary household members.

Where negligent conduct by a public authority also infringes Article 8, damages under the Human Rights Act 1998 are discretionary and available only when necessary for just satisfaction. An award of nuisance damages to the property owner is relevant to that assessment. A common-law award will normally satisfy a property owner, making additional HRA damages highly improbable.

The appellants were members of a Group action concerning odours and mosquitoes allegedly caused by negligent operation of Mogden Sewage Treatment Works. Some claimants owned or leased their homes; others lived there without a legal interest. They pleaded private nuisance and negligence, together with claims under Article 8 and the Human Rights Act 1998.

Ramsey J determined fourteen preliminary issues in the Technology and Construction Court: [2007] EWHC 2021 (TCC). The appeal concerned whether nuisance damages awarded to property owners could provide just satisfaction to non-proprietary household members, whether alternative remedies were relevant, and whether a property owner could obtain additional HRA damages on top of nuisance damages.

1. Private nuisance. The court held that damages for nuisance, including a transitory nuisance causing personal discomfort, compensate injury to the land through diminution in amenity value. They do not compensate the sensibilities of the occupiers. Following the majority reasoning in Hunter v Canary Wharf [1997] AC 655, damages cannot be increased by the number of residents and are not recovered on behalf of people without an interest in the land.
2. Assessment. Where there is no physical damage, loss of capital value, loss of rent or other pecuniary loss, the assessment of amenity loss may be imprecise but remains flexible. The property’s size, commodiousness and value are relevant. The actual experience of occupiers may be important evidence of the diminution in amenity, although it is not the formal measure. An unoccupied property with no actual amenity loss would ordinarily attract no more than nominal damages.
3. Article 8 and HRA damages. The effect of pollution or nuisance on a person’s home may engage Article 8 where the defendant is a public authority. The issue arose here only because negligence was alleged and fault was capable of being established. In the absence of negligence, Marcic v Thames Water Utilities Ltd [2004] AC 42 applied, so the statutory scheme would ordinarily preclude an HRA remedy.
4. Under section 8 of the Human Rights Act 1998, damages are discretionary. The court must consider all the circumstances, including relief or remedies granted in relation to the same act, the consequences of decisions concerning that act, and the principles applied under Article 41. The remedy is ancillary and not an automatic entitlement, as explained in Anufrijeva v Southwark London Borough Council [2004] QB 1124 and approved in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673.
5. The judge was wrong to decide at the preliminary stage that nuisance damages would provide just satisfaction to a non-proprietary household member. The award to the property owner, its amount, and whether the occupier’s experience was reflected in that award are relevant. The question whether a declaration suffices, or whether additional damages are necessary, depends on the facts found at trial.
6. For a property owner who has already recovered nuisance damages, additional Article 8 damages are most improbable, if not inconceivable. The common-law award will normally constitute just satisfaction under section 8(3). The court answered Issue 11(b) accordingly. It reversed the answer to Issue 9, dismissed the appeal on Issue 10, and substituted its answer to Issue 11(b).

1. Court of Appeal (Civil Division): Reversed the answer to Issue 9, dismissed the appeal on Issue 10, and substituted an answer on Issue 11(b).
2. Queen’s Bench Division, Technology and Construction Court: Ramsey J determined fourteen preliminary issues in [2007] EWHC 2021 (TCC), including Issues 9, 10 and 11(b).