In the process of treating the effluent of millions of Londoners, the Mogden sewage treatment plant has given rise to unwanted flooding of neighbouring properties, unpleasant odours and obnoxious mosquitoes, and along with them some significant cases deciphering the boundaries between the tort of private nuisance and the Human Rights Act 1998. The latest in the line of such cases, which includes Marcic v. Thames Water Utilities Ltd. [2003] UKHL 66; [2004] 2 A.C. 42, is Dobson v. Thames Water Utilities Ltd. [2009] EWCA Civ 28, where the Court of Appeal was asked to decide a number of preliminary issues arising in the group action by the residents of properties in the vicinity of the sewage works against Thames Water Utilities Ltd. The appellants complained that they were affected by smells and mosquitoes, which resulted from the negligent operation of the sewage works by the respondent. They claimed damages in private nuisance and, since the respondent was a public authority, damages under section 8 of the Human Rights Act 1998 (HRA) for breach of Article 8 of the European Convention on Human Rights, which requires respect for one's private and family life and one's home.

The appellants were divided into those who owned or rented the properties and those who had no legal interest in the properties that they lived in. Whilst both groups could in principle bring an Article 8 claim, following the decision of the House of Lords in Hunter v. Canary Wharf [1997] A.C. 655, only the first group were entitled to sue in private nuisance. This is because private nuisance is “a tort against land” (per Lord Hoffmann, at 702), therefore only persons with a legal interest in the land can have a claim. This raised the question of how an award of damages to the property owners in nuisance affected the remedy sought under the HRA 1998 by those living in the same household merely as occupiers.

This required an examination of the proper basis for an award of common law damages for a transitory nuisance where there has been no lasting damage to the property or loss of capital value, but simply loss of amenity. According to the Court of Appeal, Hunter stands for the proposition that “damages in nuisance are for injury to the property and not to the sensibilities of the occupier(s)” (per Waller L.J., [31]). This is true in all types of nuisance, including those where there is only loss of amenity. Any damages granted for injury to the property are solely for the benefit of its owner and are not recovered on behalf of other occupiers (ibid, [36]). Yet the question of how to assess damages in cases of transitory nuisance resulting only in loss of amenity did not arise directly in Hunter. The Court of Appeal accepted that this question cannot be answered with mathematical precision. Nonetheless, it held that the actual impact upon the occupiers of the land would in practice be relevant to the assessment of common law damages for loss of amenity, though this should not be considered to be the formal measure of such damages. Waller L.J. stated that “the experience of the members of that family is likely to be the best evidence available of how amenity has been affected in practical terms, upon which the financial assessment of diminution of amenity value must depend” (ibid, [35]). This means that a claimant has to show that he has actually suffered inconvenience before substantial damages can be awarded to him. Combined with the rule that nuisance damages are solely for the landowner's benefit, the reference to the occupants' actual discomfort in the assessment of the loss of amenity can potentially produce some interesting outcomes. If my father's house stands empty for a year during which horrible smells are emitted from the farm next door, then he can recover no more than nominal damages in nuisance. If, however, I reside there during that period, then he would presumably be able to recover substantial damages on the basis of my discomfort. I, of course, am not so fortunate: not only do I inhale the smells, but, unless I have a contract with him regulating my occupation (even if that does not give me a legal interest in the land), then I can legally get nothing from the damages awarded in nuisance. Moreover, simultaneously holding that damages for nuisance are not to be increased according to the number of the household members inconvenienced by a particular intrusion and stating that their experience offers the best evidence as to the practical effect of that intrusion on amenity can lead to ambiguity. For example, will a family of 10 recover the same damages in nuisance as a bachelor where their adjoining identical properties are affected in the same way? According to Hunter the answer is yes, but after Dobson this is no longer crystal-clear.

Turning to the potential damages that owning and non-owning residents of the relevant properties could claim in respect of the infringement of their Article 8 rights, the Court of Appeal stated that under section 8 of the HRA 1998 damages are discretionary and awarded as a last resort for the purpose of providing “just satisfaction” after taking into account all the circumstances, which include other remedies in relation to the same act (ibid, [41]–[43]). Such remedies are not limited to those granted to the person making the claim under the HRA 1998. This means that damages paid to the landowner in nuisance for the same act are relevant when deciding whether to award damages to a non-owner under the HRA 1998. The key question is whether it is necessary to award such damages or whether a declaration of infringement of Article 8 rights together with the award to the owner is enough. The fact that the effect of the smells and mosquitoes upon the non-owning household member is considered in the assessment of the diminution in the property's amenity value and thus the nuisance award to the owner, is a “highly significant consideration” in deciding the matter (ibid, [45]). Overturning the trial judge's decision that damages in nuisance to specific homeowners afforded their child “just satisfaction” under Article 8, the court felt unable to give a categorical answer on this before the case had been fully tried and referred it back to the judge to make the necessary findings. Yet the question remains: given that the non-owner can usually get no money from an award of nuisance damages to the owner, is it right to take into account that award when considering whether the non-owner can recover damages under Article 8? It might be that the interplay between the two remedies is linked to the relationship between the owner and the occupant. Where that is commercial, then the division of compensation should in theory be regulated by their contract, so there is nothing wrong with proceeding in the way that the Court of Appeal has outlined. Where it is non-commercial, such as in the family situation, then this course might again be fine as long as the occupant can be meaningfully said to derive some benefit from the damages awarded in nuisance. The last proviso, however, does not seem to be currently in place.

Finally, the Court of Appeal noted that in its view it was highly improbable, if not inconceivable, that damages at common law would be exceeded by any award to the same person for breach of Article 8. Consequently, an award of damages at common law to a property owner would normally constitute “just satisfaction” for the purposes of section 8 of the HRA 1998 and no additional award for compensation under that Act would be necessary in such cases (ibid, [52]).

The Court of Appeal's decision in Dobson is the latest episode in a long legal saga. Whether it proves to be the last remains to be seen. Ramsey J., the trial judge in Dobson who has some difficult decisions to make, is unlikely to see it as such.