Angel’s share: couple sue whisky maker over black fungus damage to home

A couple who claim their house has been damaged by black “whisky fungus” from a local distillery will be able to pursue their action for damages.

A judge in the Court of Session ruled that Thomas Chalmers and his wife Gail Chalmers had pled a “sufficient case” on liability to allow their claim against Diageo Scotland Limited to go to a proof before answer.

Lord Ericht heard that the pursuers, who live in Bonnybridge, brought an action for £100,000 damages against the defenders for damage to their home and outdoor property.

The damage was said to have been caused by ethanol evaporating from the casks containing maturing whisky in warehouses some 350 metres from the couple’s house in the Woodlea Park development.

The pursuers claimed that the defenders’ release of ethanol vapour into the atmosphere – commonly known as the “angel’s share” – from their bonded warehouses amounted to a “nuisance” as it had covered their property in an “unsightly black coating” and reduced its value.

The pursuers argue that the circumstances amount, in law, to a nuisance caused by the defenders’ fault and therefore they are entitled to compensation for the damage to their property.

It was submitted that the factual issues raised in the defenders’ pleadings and note of argument could only be properly addressed at proof before answer.

However, the defenders claimed that the pursuers had not given “fair notice”, arguing that the claim was of an “unprecedented nature” with the potential to have “radical impacts” on a major industry.

It was also submitted that the pursuers’ case failed to set out an argument for the existence of “culpa”, as the defenders were carrying on a long established operation in accordance with all requisite permits issued in the public interest by public authorities and the emission “could not constitute a nuisance”.

The defenders further maintained that the defenders’ business was “longstanding” and the pursuers’ properties were incomers, adding that the pursuers’ claims had previously been rejected following an investigation by Health Protection Scotland.

It was also argued that the pursuers’ case was “irrelevant” because of prescription, as they had been performing the same process on site for more than 20 years and had “acquired a right” to emit ethanol.

But the judge ruled that the pursuers had pled a “sufficient case”.

In a written opinion, Lord Ericht said: “The pursuers aver details of why they say the vapour causes damage and why the fungus is present. They list the scientific papers on which their case is based and set out briefly the findings of these papers.

“They go on to aver: ‘In the circumstances, the defenders knew or ought to have known that the release of ethanol vapour from their property would be liable to cause loss and damage of the type which did, in fact, occur. The ethanol vapour caused the loss and damage hereinafter condescended upon. Had the defenders not caused ethanol vapour to be released the damage would not have occurred’.

“In my opinion these averments satisfy the requirement set out by Lord President Hope and are sufficient to allow the case to go to proof before answer so far as culpa is concerned.”

He added: “This case raises the issue of the relationship between private law of nuisance exercisable by neighbouring landowners in respect of their private interest, and public regulatory law regulating the use of land on behalf of the community as a whole… In my opinion, enquiry into the facts is required before the court can make any decision on whether, in the circumstances of this case, regulatory decisions can, and have, cut down any private law right to damages for nuisance.”

Lord Ericht also held that a proof before answer was required before the court can come to a decision on prescription.

However, the judge said the pursuer’s claim for damages lacked specification.

He said: “In this action the pursuers are seeking damages in the sum of £100,000. The averments give no specification of how that sum is made up. They put no figures on any of the damage which they aver.

“As the pleadings stand, there is force in the defenders’ argument that this article of condescendence is lacking in specification. The defenders are entitled to fair notice of how the sum sued for is made up. They are entitled to fair notice as to when and by how much the house has reduced in value.”

Lord Ericht concluded: “In my opinion the pursuers have pled a sufficient case on liability to allow their averments on liability to go to proof before answer. They have not pled a sufficient case on loss, but I shall give them an opportunity to seek leave to amend.”

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