AS TO THE ADMISSIBILITY OF
Application No. 36053/97
by John STOCKTON and Others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 March 1996 by
the applicants as set out in the Annex against the United Kingdom and
registered on 13 May 1997 under file No. 36053/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are British citizens who were all residents in
Cornwall in July 1988, when a pollution incident occurred. A list of
the applicants is set out in the Annex to this decision. They are
represented before the Commission by Ms. N. Mole, of the AIRE Centre
in London. The facts of the application, as submitted by the
applicants' representative, may be summarised as follows.
On 6 July 1988 20 tonnes of liquid aluminium sulphate solution
was delivered to the wrong inlet at the Lowermoor Water Treatment
Works, owned and operated by South West Water Authority ("the Water
Authority"). The aluminium sulphate entered the water distribution
network and formed an acid metallic solution which dissolved further
contaminants from the distribution system into the water supply. The
applicants, each of whom consumed the contaminated water, suffered
various injuries: to the mouth, stomach, and skin and other related
disorders. In some cases these primary effects lasted for a number of
weeks.
No public warning was issued to prevent the consumption of the
water. On 7 July 1988 the Water Authority informed local residents
that the water was safe to use and drink.
The applicants, together with other affected individuals, made
a claim in tort against the Water Authority in the High Court. The
matter was settled after five years. Judgment was entered for the
plaintiffs on 10 May 1994 and under the settlement the majority of the
applicants received awards varying between £1,000 and £10,000, in
respect of the short term ill-health they had suffered. The amounts
received by each applicant are set out in the Annex to the present
decision. Damages for long term illnesses were not recoverable in this
action due to a lack of scientific and medical evidence supporting the
link between the illnesses and the ingestion of contaminated water.
The applicants claim that the long term effects of the pollution
have become apparent since the settlement of the first action. They
rely on medical research into the long term effects of the
contamination which suggests that aluminium stays in the body for a
considerable period (some 7 months) and tests have shown contaminated
individuals to have an impairment of information processing and memory.
The Water Authority commissioned Dr. J. Lawrence, director of
an ICI laboratory and non executive director of the Water Authority to
investigate the circumstances surrounding the incident. Dr. Lawrence
identified a number of management and systems failures. His report was
published a month after the incident. The then Parliamentary Under-
Secretary of State for Health established the Lowermoor Incident Health
Advisory Group, to enquire into the incident and advise the local
district health authorities. The group sought the advice of experts
in the relevant fields, including medical experts on the health effects
of aluminium contamination. The group produced two reports. The
first, in July 1989, which found short term ill-health effects amongst
the local population, criticised the failure of the Water Authority to
inform local residents immediately of the danger and noted, in the
event of expert evidence indicating long term harm, clinical
surveillance should be implemented. A second report by the group was
published in 1991. It concluded:
"We do not expect lasting physical harm from the toxicity of the
contaminated water itself. ... although we have no reason to
predict any late consequences, we cannot exclude them
categorically."
The South West Water Authority was convicted in January 1991 of
causing nuisance, and fined £10,000. It was also ordered to pay
£25,000 in costs.
The applicants continued to campaign for a public enquiry into
the pollution incident and consequential effects. On 2 October 1995
the Under Secretary of State for the Environment stated that no public
enquiry would be held. On 29 August 1996 the applicants were informed
by the Department of Health that no additional inquiry would be held.
Counsel advised that any attempt to challenge the refusal of ministers
to conduct such an inquiry would be doomed to failure.
COMPLAINTS
The applicants allege that the pollution of the water supply and
the failure of the Water Authority immediately to warn the local
community of the danger of consuming this contaminated water,
constituted a violation of Article 8 of the Convention. They also
complain under Article 8 that the State had an obligation to provide
necessary medical treatment for those affected by the contamination and
detailed information to alleviate associated anxiety. The applicants
further complain under Article 6 para. 1 and Article 13 of the
Convention that no public enquiry was held into the incident and that
they were unable to seek compensation in the courts for their long term
ailments.
THE LAW
1. The applicants complain under Article 8 (Art. 8) of the
Convention concerning the pollution of the water supply and the
subsequent reaction of the State to this incident.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission first notes that the civil proceedings which the
applicants brought against the Water Authority ended in May 1994, when
the applicants accepted damages for the injuries suffered. The
criminal proceedings against the Water Authority ended in January 1991,
when the Water Authority was convicted of public nuisance and fined
£10,000 and ordered to pay £25,000 costs. To the extent that the
applicants are complaining about matters concerning those two sets of
proceedings - including the fact that the incident occurred -, the
Commission recalls that it may only deal with a matter within six
months from a final decision, and that the present application was
introduced on 28 March 1996. Assuming the respective decisions to be
the final decisions in each case, the Commission is therefore prevented
from considering either the civil or the criminal proceedings by virtue
of the six months time limit contained in Article 26 (Art. 26) of the
Convention.
However, the applicants also complain about matters which are
allegedly continuing. In particular, they complain that no public
inquiry has ever been held into the events.
In the context of complaints under Article 8 (Art. 8) of the
Convention relating to the effects of pollution, the European Court of
Human Rights has held that regard must be had to the fair balance that
has to be struck between the competing interests of the individual and
of the community of the whole (Eur. Court HR, Lopez Ostra v. Spain
judgment of 9 December 1994, Series A no. 303-C, p. 54, para. 51). The
State must take the measures necessary for protecting an applicant's
right to respect for his home and private and family life under
Article 8 (Art. 8) (ibid, p. 55, para. 55). The Commission considers
that procedural safeguards, including the lack or existence of a public
inquiry into the cause and effects of the pollution, are relevant
factors in the assessment of whether the requirements of Article 8
(Art. 8) have been met.
In the civil case brought by the applicants, judgment was entered
for the applicants. The liability of the Water Authority for the harm
flowing from the incident was therefore established, even though, as
the applicants point out, the damages were not agreed. Further, the
Water Authority was convicted in the ordinary criminal courts, and
fined £10,000. In addition to these two sets of judicial proceedings,
two inquiries were held into the incident.
The Commission considers that, to the extent that it is not
prevented by the six months rule from determining the issue, any
procedural requirements of Article 8 (Art. 8) to establish the facts
concerning the incident were met by the various procedures which were
held.
It follows that the complaint under Article 8 (Art. 8) of the
Convention must be dismissed as inadmissible within the meaning of
Article 27 (Art. 27) of the Convention.
2. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that their right of access to court was violated.
Article 6 (Art. 6) provides so far as relevant as follows:
"1. In the determination of his civil rights and obligations or
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
The Commission again recalls that it may only deal with a matter
within 6 months of a final decision. The applicants were able to and
did bring actions before the High Court claiming tortious damages for
personal injury. These actions were settled in May 1994, whereas the
application was introduced only on 28 March 1996. The complaints under
Article 6 (Art. 6) of the Convention must therefore be rejected for
failure to comply with the six months rule set out in Article 26
(Art. 26) of the Convention. The Commission does not accept that any
issue remains alive after the settlement of the civil proceedings: in
domestic terms, no right, civil or otherwise, remains to be determined,
and it cannot be said that the applicants' demand for a public inquiry
amounts to a civil right.
It follows that this part of the application must be rejected as
inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of
the Convention.
3. The applicants complain under Article 13 (Art. 13) of the
Convention in respect of their lack of a remedy for long term ailments,
or a remedy in the form of a public inquiry.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the
present case, the Commission has rejected the substantive claims as
disclosing no appearance of a violation of the Convention. For similar
reasons, they cannot be regarded as "arguable".
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy