Lexploria

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

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STOCKTON AND OTHERS v. THE UNITED KINGDOM

STOCKTON AND OTHERS v. THE UNITED KINGDOM