A recent case in the Court of Session highlighted the potential implications for the whisky industry and other fume emitting industries at large of future claims for ‘nuisance’. While the case in question has been continued to an evidential hearing before a decision is made, the Judge made some key observations about the law of nuisance and its relationship with regulatory law which will be of significance both in this case and in any future claims by other proprietors.
We have summarised below some of the key points arising from it.
The Case - (1) Thomas Chalmers and (2) Gail Chalmers v Diageo Scotland Limited
When whisky matures in casks ethanol evaporates. This evaporation is commonly referred to as “The Angels’ Share”. Mr and Mrs Chalmers own a home close to a bonded warehouse owned by the Defender, Diageo Scotland Limited (Diageo). Proceedings were raised by them seeking damages for alleged damage caused to their house and other property by a black coating which they said was attributable to ethanol being emitted from Diageo’s warehouse. Mr & Mrs Chalmers’ position was that the level of ethanol emitted germinated the fungus Baudoinia compniacensis- and that fungus was on their property. Their position was that the emission of ethanol caused a public “nuisance” and they were therefore entitled to compensation.
Diageo had made an application to the Court asking for the case to be dismissed based on a lack of information in the pleadings alone and potential time bar.
Ultimately the Judge, Lord Ericht, held that a decision could not be made solely on the pleadings and the case was required to proceed to a hearing on evidence.
Nuisance- what is needed?
The Judge helpfully summarised what is needed to establish a case of nuisance under Scots law and what may and may not assist with a defence.
- To establish a claim there must be an act from which fault can be established and there must always be invasion of a person’s interest and land to an extent which exceeds what is “reasonably tolerable”. The nature of the locality is an important factor/feature in determining whether an activity constitutes nuisance.
- Whether something exceeded what was ‘reasonably tolerable’ was by its very nature dependent on the facts and circumstances hence the need for evidence.
- Diageo argued that as their warehouse had operated since 1979 and the housing estate was not constructed until 2002 Mr and Mrs Chalmers were not entitled to pursue the claim.
- The Judge confirmed that a claimant would still have the right to complain of a nuisance even if the nuisance existed beforehand. A defence may exist if the homeowner had changed the use of, or built upon, the land but this would apply only in restricted circumstances such as when the activity in question had not been a nuisance before the change of use of land or the activity didn’t cause a greater nuisance since the land’s change of use.
- Diageo also argued that their operations were in compliance with and regulated by planning, building and health and safety and whisky production regulations.
- The Court confirmed that all competing factors including whether planning permission has been granted have to be weighed up by the Court and merely because planning permission has been granted or regulations complied with did not mean that the claim would necessarily fail.
Diageo also argued that the Chalmers’ had lost their right to object due to the passage of time (Time bar). The judge wishes to hear evidence on this point so this will also be considered at a subsequent hearing.
This case follows on from a significant amount of interest and commentary. Given the potential implications and impact for fume emitting industries we will all be keeping a close eye on the outcome.