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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dobson & Ors v Thames Water Utilities Ltd and Anor  EWCA Civ 28 (29 January 2009)
Cite as: 122 Con LR 32,  BLR 287,  HRLR 19,  UKHRR 617,  3 All ER 319,  HLR 9,  ACD 21,  1 EGLR 167,  NPC 18,  EWCA Civ 28,  5 EG 106
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Mr Justice Ramsey
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
| Dobson and Ors
|- and -
|Thames Water Utilities Limited and Anr
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Hart QC and Michael Daiches (instructed by Messrs Osborne Clarke) for the Respondent
Hearing date : 13th October 2008
Crown Copyright ©
Lord Justice Waller :
"148. Whilst the principle in Marcic precludes the Claimants from bringing claims which require the court to embark on a process which is inconsistent and conflicts with the statutory process under the WIA, it does not preclude the Claimants from bringing a claim in nuisance involving allegations of negligence where, as a matter of fact and degree, the exercise of adjudicating on that cause of action is not inconsistent and does not involve conflicts with the statutory process under the WIA."
"Issue 9: Do, 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 Human Rights Act 1998?
a. the alternative remedies referred to in:
(i) paragraph 9 of the Claimant's Amended Statement of Case on Preliminary Issues (sections 80 and 82 of the Environmental Protection Act 1990) and /or
(ii) paragraph 29 of the Defendant's Defence thereto (the complaint to Ofwat under s. 94 WIA 1991 and the earlier availability of that route for complaint (if these matters do constitute a breach of s. 94(1)(b) duties)) and/or
b. the current abatement notice as pleaded in paragraphs 21 – 24 of the Claimant's Group Statement of Case
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 1998?
Issue 11: In the light of the answers to the above and given the terms of section 8(3) of HRA 1998:
. . . .
b If damages for nuisance are lower than those a Claimant with a legal interest in his or her home could obtain under the HRA 1998, can these damages be "topped up" under the 1998 Act?"
"184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.
184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.
184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.
184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity. "
"189. The Claimants rely on the fact that, as set out above, damages for nuisance do not take into account the number of people living in the affected property as they are awarded in respect of the damage to the land. The Claimants submit that this does not accord "just satisfaction" to victims of an unlawful act under section 8(3) of the HRA 1998 because an award of damages under section 8(3) must be made to the individual victim of the unlawful act so as to be "just satisfaction to the injured party."
190. The Claimants accept that in awarding any damages the court must, under s. 8(3)(a), take into account "any other relief or remedy granted". However they submit that in the case of lodgers or residents of a retirement or children's home, an award of damages in nuisance to the owner could not be just satisfaction for the affected lodgers or residents or be taken into account for the purposes of section 8(3)(a) as any such award would not be bound to be shared.
191. The Claimants refer to Fadeyeva v. Russia  ECHR 376 where €6000 was awarded as damages for inconvenience and mental distress and a degree of physical suffering over a seven year period.
192. In the case of non-proprietary partners or children the Claimants accept that an award of damages in nuisance to the partner or parent(s) who have a proprietary interest in the home is a matter to be taken into account for the purposes of section 8(3)(a), although they submit that the position of foster children may be different."
"198. Thames Water points out that the Claimants accept that an award of damages to his parents is "a matter to be taken into account for the purposes of s.8(3)(a)" and submits that, on the Bannister facts, the court should say that compensation in nuisance for the parents will mean that the family is properly compensated, and that no further damages should be payable under the HRA.
. . .
203. In this case I cannot consider the position of those living in the same household as those with a proprietary interest other than Thomas Bannister, who is a boy living with his parents. For him, the Claimants accept that an award of damages in nuisance to parents who have a proprietary interest in the home is a matter to be taken into account for the purposes of section 8(3)(a)."
"209. I consider that when the court awards damages for nuisance to those with a legal interest that will usually afford just satisfaction to partners and children but that there might be circumstances where they will not. In the case of Thomas Bannister, he lives in the same household as his parents who will receive damages for the loss of amenity of their property. There is nothing in the claim to show that such damages received by the household would not afford just satisfaction as they did for Mrs Dennis or would have done for Mr Marcic. I conclude that those damages would afford Thomas Bannister just satisfaction.
210. There may be circumstances where others without a legal right to occupy may have a right to a separate remedy under Article 8 and/or the Human Rights Act 1998 for which there will not be just satisfaction by an award of damages for nuisance.
211. I therefore consider that the appropriate answer to Issue 9 is 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 Human Rights Act 1998 but whether they do will depend on the facts."
His formal answer to issue 9 was:
"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. 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 …."
"Where damages in nuisance are awarded to a property owner, is it necessary, in order to afford just satisfaction to a non-property owning member of the same household such as Thomas Bannister, to award damages under section 8 of the Human Rights Act 1998 for breach of Article 8?".
"Is an award of damages in nuisance to a property owner relevant to the court's determination under the HRA section 8 of whether to award damages to a non-property owning member of the same household such as Thomas Bannister for breach of Article 8?"
He submits that the answer is that an award of damages for private nuisance is irrelevant. On this basis he would argue that under Issue 11(b) he should also succeed and that under that Issue we should rule that a property owner has an entitlement to damages under the HRA, which will be on top of any damages awarded for private nuisance.
"11. The award of damages in nuisance is intended to compensate the owner for the diminution in the amenity value of his land. When making that assessment, the court pays no regard to the number of individuals in occupation of the land, let alone to the level of discomfort, inconvenience or mental distress that those other individuals may have suffered (see Hunter v Canary Wharf  AC 655, 706 per Lord Hoffmann, as cited at paragraph 184(2) of the judgment). Crucially, damages are awarded as a consequence of the legal entitlement to occupy the land as opposed to constituting damages for personal discomfort (see Hunter v Canary Wharf  AC 655, 706 per Lord Hoffmann, as cited at paragraph 184(1) of the judgment). That is why the basis of calculation of such damages is based on loss of amenity value of the land (see judgment including citation of authority at paragraph 184(3)-(4) of the judgment).
12. By contrast, the child suffers an entirely different loss arising out of the unjustified interference with his article 8 right, namely inconvenience, mental distress and physical suffering: (see para 226 of the judgment). As explained by Lord Hoffmann in Hunter v Canary Wharf … this is quite different (and the basis of calculation is quite different) from a discrete claim by an occupier of the land with no legal entitlement to occupy for compensation for his or her discomfort, inconvenience or mental distress.
13. It follows that damages payable to the owner of the property in nuisance neither reflect the loss suffered by the child nor are for the benefit of the child. Nuisance damages compensate the owner for a loss in which the child has (and can have) no interest.
14. It follows that damages in nuisance to the owner cannot be taken into account by the court under section 8 HRA when assessing whether to pay damages to the child for breach of his convention right."
i) What is the proper basis for an award of common law damages for a transitory nuisance where no lasting damage to the claimant's land or loss of capital value has been occasioned?
ii) Does such an award include damages recovered by the property owner(s) on behalf of any non-property-owner member of the same household?
iii) What is the proper basis for an award of damages for infringement of Article 8 Convention rights in such a case of transitory nuisance? and
iv) What effect, if any, does an award of common law damages under (i) have upon the decision as to what is the proper remedy to be awarded in respect of the same acts to a non-property-owning member of the same household who brings a claim for infringement of Article 8 ?
"Where persons with no interest in land suffer personal injury or damage to chattels as a result of a nuisance their appropriate remedy, if any, will be in negligence. No injustice is caused if family members (and others present in the home) without property rights or a right of occupation have no standing to sue. In respect of an occupied property there will always be someone with standing to sue for any private nuisance caused to that property. Moreover, any loss of amenity suffered by family members can be reflected in the quantum of damages recovered by the householder, since his or her loss of amenity will be increased by any detriment caused to other family members in their use and enjoyment of the property: see Bone v Seale  1 WLR 797, 803G-H. It would therefore be not only artificial, but unnecessary, for the class of plaintiffs eligible to sue in private nuisance to be expanded by reference to the specific statutory rights relied on by the plaintiffs in the present actions."
"It is difficult to find an analogy to damages for interference with the enjoyment of property. In this case, efforts to prove diminution in the value of the property as a result of this persistent smell over the years failed. The damages awarded by Walton J. were damages simply for loss of amenity from the smells as they affected the plaintiffs living on their property; and of course their enjoyment of their own property was indirectly affected by these smells inasmuch as they affected their visitors and members of their families, such as Lady Goodale. The nearest analogy would seem to be the damages which are awarded almost daily for loss of amenity in personal injury cases; it does seem to me that there is perhaps a closer analogy than at first sight appears between losing the enjoyment of your property as a result of some interference by smell or by noise caused by a next door neighbour, and losing an amenity as a result of a personal injury. Is it possible to equate loss of sense of smell as a result of the negligence of a defendant motor driver with having to put up with positive smells as a result of a nuisance created by a negligent neighbour? There is, as it seems to me, some parallel between the loss of amenity which is caused by personal injury and the loss of amenity which is caused by a nuisance of this kind."
"The only other authority I would mention is Bone v. Seale  1 W.L.R. 797. I refer to it because it illustrates and confirms that the right to sue in private nuisance is linked to the correct measure of damages. The facts of Bone v. Seale were that the defendant was a pig farmer. The plaintiffs were the owners and occupiers of two adjoining properties. They claimed damages for nuisance by smell. The judge awarded over £6,000. to each of the plaintiffs. The Court of Appeal reduced the sum to £1,000. The case is interesting because damages were awarded on a lump sum basis for loss of amenity over twelve years, there being no evidence of any diminution in market value of either of the two adjoining properties. Stephenson and Scarman LJJ suggested, very tentatively, that there might be an analogy with loss of amenity in personal injuries cases. But this was only for the purpose of showing that the sum awarded by the judge was much too high. There was no hint that the damages should vary with the number of those occupying the houses as their home. The damages were assessed, so to speak, per stirpes and not per capita."
"If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question. It also follows that the only persons entitled to sue for loss in amenity value of the land are the owner or the occupier with the right to exclusive possession."
" St. Helen's Smelting Co. v. Tipping was a landmark case. It drew the line beyond which rural and landed England did not have to accept external costs imposed upon it by industrial pollution. But there has been, I think, some inclination to treat it as having divided nuisance into two torts, one of causing "material injury to the property," such as flooding or depositing poisonous substances on crops, and the other of causing "sensible personal discomfort" such as excessive noise or smells. In cases in the first category, there has never been any doubt that the remedy, whether by way of injunction or damages, is for causing damage to the land. It is plain that in such a case only a person with an interest in the land can sue. But there has been a tendency to regard cases in the second category as actions in respect of the discomfort or even personal injury which the plaintiff has suffered or is likely to suffer. On this view, the plaintiff's interest in the land becomes no more than a qualifying condition or springboard which entitles him to sue for injury to himself.
If this were the case, the need for the plaintiff to have an interest in land would indeed be hard to justify. The passage I have quoted from Dillon L.J. is an eloquent statement of the reasons. But the premise is quite mistaken. In the case of nuisances "productive of sensible personal discomfort," the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered "sensible" injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.
I cannot therefore agree with Stephenson L.J. in Bone v. Seale  1 W.L.R. 797 when he said that damages in an action for nuisance caused by smells from a pigsty should be fixed by analogy with damages for loss of amenity in an action for personal injury. In that case it was said that "efforts to prove diminution in the value of the property as a result of this persistent smell over the years failed." I take this to mean that it had not been shown that the property would sell for less. But diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. But estates agents do this all the time. The law of damages is sufficiently flexible to be able to do justice in such a case: compare Ruxley Electronics and Construction Ltd. v. Forsyth  AC 344.
But inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness.
It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them. If there are joint owners, they will be jointly entitled to the damages. If there is a reversioner and the nuisance has caused damage of a permanent character which affects the reversion, he will be entitled to damages according to his interest. But the damages cannot be increased by the fact that the interests in the land are divided; still less according to the number of persons residing on the premises. As Cotton L.J. said in Rust v. Victoria Graving Dock Co. (1887) 36 Ch. D.113, 130:
". . . where there are divided interests in land the amount of damages to be paid by the defendants must not be increased in consequence of that subdivision of interests."
Once it is understood that nuisances "productive of sensible personal discomfort" do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable."
"The effect on that interest in land will also provide the measure of his damages, if reimbursement for the effects of the nuisance is what is being claimed, irrespective of whether the nuisance was by encroachment, direct physical injury or interference with the quiet enjoyment of the land. The cost of repairs or other remedial works is of course recoverable, if the plaintiff has required to incur that expenditure. Diminution in the value of the plaintiffs' interest, whether as owner or occupier, because the capital or letting value of the land has been affected is another relevant head of damages. When the nuisance has resulted only in loss of amenity, the measure of damages must in principle be the same. I do not see how an assessment of the damages appropriate for claims for personal injury at the instance of all those who happened to be on the land can be the right measure. If this were so, the amount recoverable would depend on the number of those affected, not the effect on the amenity of the land. At best it is no more than a guide to the true measure of liability, which is the extent to which the nuisance has impeded the comfortable enjoyment of the plaintiff's property."
"For private nuisances of this kind, the primary remedy is in most cases an injunction, which is sought to bring the nuisance to an end, and in most cases should swiftly achieve that objective. The right to bring such proceedings is, as the law stands, ordinarily vested in the person who has exclusive possession of the land. He or she is the person who will sue, if it is necessary to do so. Moreover he or she can, if thought appropriate, reach an agreement with the person creating the nuisance, either that it may continue for a certain period of time, possibly on the payment of a sum of money, or that it shall cease, again perhaps on certain terms including the time within which the cessation will take place. The former may well occur when an agreement is reached between neighbours about the circumstances in which one of them may carry out major repairs to his house which may affect the other's enjoyment of his property. An agreement of this kind was expressly contemplated by Fletcher Moulton L.J. in his judgment in Malone v. Laskey  2 K.B. 141, 153. But the efficacy of arrangements such as these depends upon the existence of an identifiable person with whom the creator of the nuisance can deal for this purpose. If anybody who lived in the relevant property as a home had the right to sue, sensible arrangements such as these might in some cases no longer be practicable."
"8 Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated—
(a) in Scotland, for the purposes of section 3 of the [1940 c. 42.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b) for the purposes of the [1978 c. 47.] Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section—
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1)."
"If the Court finds that there has been a violation of the convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
"The following points need to be noted. (a) The award of damages under the HRA is confined to the class of unlawful acts of public authorities identified by section 6(1): see section 8(1) and (6). (b) The court has a discretion as to whether to make an award (it must be 'just and appropriate' to do so) by contrast to the position in relation to common law claims where there is a right to damages: section 8(1). (c) The award must be necessary to achieve 'just satisfaction'; language that is distinct from the approach at common law where the claimant is invariably entitled, so far as money can achieve this, to be restored to the position he would have been in if he had not suffered the injury of which complaint is made. The concept of damages being 'necessary to afford just satisfaction' provides a link with the approach to compensation of the Court of Human Rights under article 41. (d) The court is required to take into account in determining whether damages are payable and the amount of damages payable the different principles applied by the Court of Human Rights in awarding compensation …" (para 55).
In the following paragraph Lord Woolf said that in considering whether to award compensation and, if so, how much, "there is a balance to be drawn between the interests of the victim and those of the public as a whole" and that the court has "a wide discretion in respect of the award of damages for breach of human rights". He described damages as "not an automatic entitlement but…a remedy of last resort." Later, at paragraph 66, in discussing the principles applied by the Strasbourg court, he said that the approach is an equitable one and that "the 'equitable basis' has been cited by the Court of Human Rights both as a reason for awarding damages and as a basis upon which to calculate them". Lord Woolf's analysis was approved by the House of Lords in R (Greenfield) v Secretary of State for the Home Department  1 WLR 673 at paragraph 9. The Convention serves principally public law aims; the principal objective is to declare any infringement and to put a stop to it. Compensation is ancillary and discretionary. The interests of the individual are part of the equation, but so are those of the wider public.
"Damages would only be awarded under section 8(3) of HRA 1998 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) of the Human Rights Act 1998."
That answer tends to blend Issue 11(b) with Issue 9. Issue 11(b) contemplates a claimant with a proprietary interest and raises the question whether that person can recover 'top-up' damages under Article 8 in addition to common law damages.
"11(b) It is most improbable, if not inconceivable, that damages at common law will be exceeded by any award to the same claimant for infringement of Article 8. Accordingly the award of damages at common law to a property owner will normally constitute just satisfaction for the purposes of section 8(3) Human Rights Act and no additional award of compensation under that Act will normally be necessary."
"The alternative remedies under sections 80 and 82 of the Environmental Protection Act 1990, the complaint to Ofwat under s.94 WIA and the current abatement notice are all 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 1998."
Strictly the judge's view must be right that the availability of other remedies must be relevant. That seems to us to flow from s.8(3) and the fact that "all circumstances" must be taken into account. Although s.8(3) contemplates taking account of remedies "granted" in the past, it would be strange if the availability of remedies were not also a circumstance to be considered. But, insofar as claims by property owners under Article 8 are concerned, Issue 10 should not normally arise if our answer to Issue 11(b) is correct.
Lord Justice Richards :
Lord Justice Hughes :