(P.159) 3.3. The Influence of Human Rights Law

We have already looked at Marcic v Thames Water Utilities Ltd in an earlier chapter.²⁰⁴ The claimant brought an action in damages for loss sustained to his home due to recurring flooding and ‘backflow’ of foul water from sewers owned by the defendant sewerage and water undertaker. At first instance, claims based on nuisance, Rylands v Fletcher, and negligence were dismissed, although the judge granted a damages remedy under the HRA for breach of the Convention rights protected by the First Protocol, Article 1 and Article 8 of the ECHR.²⁰⁵

The Court of Appeal held, however, that the claimant was entitled to succeed under the common law of nuisance, and that the right to damages at common law ‘displaced’ the claim under the 1998 Act.²⁰⁶ Giving judgment for the court, Lord Philipps MR made some very interesting observations about the future impact of the case law of the ECtHR on this area of the law.

His Lordship found that Thames Water had adopted a nuisance in allowing the flooding and backflow of foul water, and that it had failed to prove that it had taken ‘all reasonable steps to avoid this state of affairs’. In the case of ‘continuing or adopting’ a nuisance, liability was thus dependent upon failure to take reasonable steps. However, in an important passage—albeit obiter dicta—the Master of the Rolls questioned whether this fault-based approach was satisfactory: ‘[w]here a nuisance results because an existing system becomes surcharged as a consequence of increased user, it does not seem to us just that the liability of the undertaker should depend upon whether in all the circumstances there are steps which the undertaker should reasonably have taken to abate the nuisance’.²⁰⁷

Not only did his Lordship consider this approach to be unjust, but he also questioned whether it would be compatible with Article 8 ECHR. Relying on the decision of the European Commission of Human Rights in S v France,²⁰⁸ his Lordship derived the premise that:

[W]here an authority carries on an undertaking in the interest of the community as a whole it may have to pay compensation to individuals whose rights are infringed by that undertaking in order to achieve a fair balance between the interests of the individual and the community.²⁰⁹

(p.160) This approach does seem to echo the French law principle of ‘equality before the public burdens’, and the similarity is reinforced in another passage of his Lordship's judgment:

The flooding is a consequence of the benefit that is provided to those making use of the system ‥‥ those who pay to make use of a sewerage system should be charged sufficient to cover the cost of paying compensation to the minority who suffer damage as a consequence of the operation of the system.²¹⁰

The theme of these statements is nonetheless very different from the attitude encapsulated in cases such as Dunne v North Western Gas Board, where the ‘benefit to the community’ argument was effectively used to opposite effect, namely to let loss lie where it falls.²¹¹

How this new approach is likely to be incorporated into English law is unclear, but some hints were made in Marcic. In some circumstances, the tort of nuisance may be adapted, as in Marcic, in order to provide an appropriate remedy.²¹² However, the fault-based approach for continuing nuisances may well create problems, as Lord Phillips himself pointed out. Reliance therefore might be placed upon the principle of Rylands v Fletcher, where there is no fault requirement to overcome. There are other elements of the action which may have to be reformulated, such as the ‘benefit to the community’ argument and ‘non-natural user’ condition, in order to comply with the Strasbourg case law. Such a reformulation is not impossible, and we have already seen that the gradual reshaping of existing torts under human rights law is very much a current feature of tort liability.²¹³ There are indications that such a development may even be anticipated by the judiciary. Indeed, Lord Phillips recognized in Marcic that such a modification of legal principle ‘may, however, be necessary if our common law is to march in step with the requirements of the Convention’.²¹⁴