It seems that private litigation still has a role to play. The Marcic principle does not afford statutory undertakers blanket immunity against claims in nuisance which have arisen due to their negligence. Different strands of common law authority on negligence and nuisance co-existing with statutory powers has resulted in some muddy waters, but the Dobson case has made things a little bit clearer. Three matters are noteworthy about Ramsey J's conclusions. First, the outcome permits the claimants' claims to continue to the extent that ⅰ) they are based on negligence or human right involving negligence and not nuisance and ⅱ) they are based on operational as opposed to policy matters - although there is no clear division between these boundaries and it will always be a matter of 'fact and degree'. Secondly, Ramsey J felt that those matters were essentially operational and so would give rise to a cause of action. Thirdly, under the Human Rights Act 1998, Ramsey J agreed with Thames Water that there could be no separate claim for children -which involved the child of parents who were making a nuisance claim. The parents' award for nuisance would be just satisfaction for any alleged infringement of the child's rights. Ramsey J did not exclude the fact that there may be circumstances which give rise to such separate claims - although he did not give examples.
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