British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CHALMERS AND (SECOND) GAIL CHALMERS AGAINST DIAGEO SCOTLAND LTD [2019] ScotCS CSOH_63 (13 August 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_63.html
Cite as: 2019 GWD 26-417, 2019 SLT 1184, [2019] CSOH 63, [2019] ScotCS CSOH_63
[New search] [Printable PDF version] [Help]
Page 1 ⇓
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 63
A95/14
OPINION OF LORD TYRE
In the cause
(FIRST) THOMAS CHALMERS and (SECOND) GAIL CHALMERS
Pursuers
against
DIAGEO SCOTLAND LIMITED
Defenders
13 August 2019
Pursuers: Moynihan QC; Balfour & Manson LLP
Defenders: Connal QC; Pinsent Masons LLP
Introduction
[1] The pursuers live in a house in a development in Bonnybridge, Falkirk, which is
adjacent to, and usually downwind from, a whisky aging facility owned and operated by the
defenders. As the defenders’ whisky matures, a small percentage of the ethanol (often
referred to as “the angels’ share”) evaporates from the casks into the surrounding
atmosphere. In this action the pursuers claim that the release of ethanol into the atmosphere
is a nuisance that has caused them loss and damage. They aver that ethanol vapour has
caused damage to their house and outdoor furniture, and that the value of their property
has been diminished. The sum sued for is £40,000.
Page 2 ⇓
2
[2] The action has already been the subject of a debate before Lord Ericht, when the
defenders sought dismissal of the action inter alia on the grounds that the pursuers had
failed to aver a relevant case of nuisance, and that in any event any cause of action that they
might have had had prescribed. In an opinion dated 3 March 2017, Lord Ericht decided that
enquiry was necessary before those matters could be determined. He also rejected certain
arguments by the defenders that the pursuers’ pleadings were insufficiently specific to give
fair notice of their case in relation to the defenders’ alleged liability.
[3] As regards quantum, however, Lord Ericht’s view was that the defenders’ argument
that the pursuers’ case lacked adequate specification had force. He noted a number of
matters in respect of which he considered that the defenders were entitled to fair notice. In
circumstances where he had held that there was a case suitable for enquiry on the merits,
Lord Ericht regarded it as appropriate to give the pursuers an opportunity to seek leave to
amend their pleadings in order to give fuller specification of their averments of loss. In due
course the pursuers lodged a minute of amendment which was answered on behalf of the
defenders and, on 7 March 2018, the record was amended in terms of the minute and
answers. The defenders, however, remained dissatisfied regarding the relevancy and
specification of the pursuers’ pleadings in relation to quantum. After a further amendment
procedure, the case was again appointed to the procedure roll for debate.
The pursuers’ averments of loss and damage
[4] The nuisance alleged by the pursuers is that the ethanol vapour in the atmosphere
causes the deposit of black fungus on houses throughout the development, including their
own house. In relation to quantum they aver as follows:
Page 3 ⇓
3
“The black fungus covers the pursuers’ house and outdoor property. It covers the
verge tiles, the gutter, fascias, the soffits and the walls. The roof has visible black
staining. The prevalence of black fungus on properties within the area is well
known. The pursuers have suffered a reduction in the value of their house. The
capital value of their house has been reduced as a result of the fungus. In particular,
even if the house were cleaned of fungus its market value would be adversely
affected because of the obvious effects of the fungus on adjacent houses.
Discolouration attributable to the fungus is obvious on a large number of properties
in the vicinity. It is therefore obvious that the pursuers' house is also adversely
affected. In 2002 the pursuers paid £139,950 for the house. It was a new build
property. The market value of the house in May 2017 is in the region of £190,000
to £195,000. The value of the house has been reduced by about 5% to 10% because of
the effects of the fungus on properties in that area. The adverse effects of the fungus
on the property became apparent within about a year after the pursuers moved in.
They began cleaning the fungus from the house at about that time. Further, the
pursuers require to clean the fungus from the property from time to time. Thus far
the pursuers have done most of that work themselves. The first pursuer cleans the
back of the house once per year. He has found by trial and error that thin bleach
works best. It requires 16 bottles of bleach to clean the back of the house. The side of
the house is too high to clean fully. It would require specialist equipment such as a
cherry-picker to reach the top of the side of the house. The first pursuer has from
time to time spent about a day a year cleaning the fungus from the gutters and
plastic fascia of the house. The task involves emptying the gutters, applying bleach
and then scrubbing the surfaces. The pursuers have now paid for this work to be
done, about once every two years at a cost of £170. The first pursuer has also spent
about a day twice per year cleaning the fungus from the patio and sundeck. The task
includes power washing and then bleaching the affected stones and oiling the
sundeck. He is on his third power washer. They cost about £60 each. They have had
to replace the sundeck once already at a cost of £300. They do not know how long
the replacement will last. He has also had to paint the garden fence every other year.
A dark colour of paint has to be used, in order to reduce the visual impact of the
fungal discolouration he uses about 4 tins of paint. The above work will have to
continue to be done on the property in future, owing to the continuing effects of the
fungus. The first pursuer is physically unable to continue to do the work. He has a
degenerative back condition, resulting from an injury in about 2010 in which he
suffered a fractured vertebra and displaced several discs. He is unable to perform
heavy manual work. The condition of his back continues to get worse. The pursuers
will therefore have to pay for the above work to be done in future. It is in any event
reasonable that they do so, given the amount of work involved. The pursuers
regularly get people at their door offering to clean the exterior of the house. The fee
quoted is about £1,000. The cost of the task of cleaning the gutters and plastic fascia
is £170 a year. The cost of cleaning the building, patio and sundeck is estimated
at £600 a year. The annual cost of oiling the sundeck is estimated at £150 for labour
and £50 for oil. The cost of painting the fence is estimated at £300 for labour and £75
for paint, every other year. Further, the pursuers’ wooden garden furniture has been
affected by the fungus. The fungus caused the wood to become covered in an
unsightly black staining. Two sets of wooden garden furniture were covered by the
Page 4 ⇓
4
slightly black staining and had to be disposed of. They had cost £500 for each set.
The second set was replaced with an aluminium table and chair set which cost
about £250. Further, the playhouse has to be painted regularly. The paint and
brushes cost about £30 on each occasion. Further, the pursuers have incurred the
cost of bleach which they to clean the fungus from their property. The bleach costs
about 27p a litre and about 100 litres are required to clean the entire house. Each of
the pursuers has a car. The fungus grows on the cars. An ordinary power wash does
not remove the fungus. A detailed valet is required as a normal valet is not effective
to remove the fungus. Each car requires to be valeted at least once, and sometime
twice, per year at a cost of about £100 for each clean. The expenditure condescended
upon is likely to continue for so long as the defenders fail to abate the emission of
ethanol. With the first pursuer’s deteriorating health the work cleaning the property
takes longer. In 2018-2019 car valeting, and the cleaning of window frames, facia,
down pipes and gutters was done by others. It is estimated that cleaning the patio
now takes the first pursuer about 2 days and the sundeck about 2 days. Cleaning the
external walls of the house takes him about 2 weeks, with a similar amount of time
required to clean the fence. The patio needs cleaned in spring and late autumn.
In 2018 he cleaned the walls once with one coat of bleach because he has become
frustrated with the work. The costs incurred in 2018 are estimated as follows:
[Figures are stated for patio and deck cleaner, all PVC windows, fascia, down pipes
and gutters, paint brushes, paint tray and rollers, bleach, sprayer, car valet and
plastic sheets.]
In addition, the pursuers have suffered a loss in their enjoyment of the use of their
property. They are restricted in the type of materials they can use in their garden.
They require to use aluminium rather than wood. They are restricted in the design
and layout of their garden. The pursuers are restricted in their choice of the colour of
paint they can use in their garden. They require to choose colours which attempt to
reduce the visual impact of the black fungus.”
[5] The defenders aver in answer that the blackening complained of is indistinguishable
visually or in impact from blackening found in a wide range of other locations, and that it
does not cause serious disturbance, substantial inconvenience or material damage. Any
impact, it is asserted, is not plus quam tolerabile. It has no impact on property values.
Argument for the defenders
[6] On behalf of the defenders it was submitted that the pursuers had still failed to state
a relevant and adequately specific case in relation to quantification of their alleged loss and
Page 5 ⇓
5
damage. Two criticisms were made. Firstly, as a matter of principle, the pursuers’ claims
for both diminution in value and cleaning costs amounted to double counting. On the
hypothesis that the pursuers were fully compensated by the defenders for their cleaning
costs, there was no basis for claiming in addition a diminution in value resulting from the
presence of fungus. Alternatively, if the loss was said to arise from the existence of
blackening, the costs of cleaning were not recoverable. The pursuers did not aver that sale
of the house was likely in the near future. In order to allow future loss to be assessed, it was
incumbent upon the pursuers to state how many years they would be likely to continue to
live in the house, so that the court could be satisfied that they were not receiving
compensation for cleaning costs to be incurred during the period after the house had been
sold at a hypothetical diminished value. Reference was made to the decision of the Court of
Appeal in Raymond v Young [2015] HLR 805.
[7] The second criticism was that it was still impossible to tell from the pleadings how
the sum sued for was arrived at. In relation to costs allegedly incurred, the figures
contained in the pursuers’ pleadings were mutually irreconcilable. Neither a multiplicand
for annual expenditure nor a multiplier for future expenditure was specified. No calculation
had been provided demonstrating in a coherent manner that the sum sued for, in so far as
consisting of past and anticipated future costs, was reasonable.
Argument for the pursuers
[8] On behalf of the pursuers it was submitted that their averments on quantification
were relevant and sufficiently specific to go to proof. On the double counting point, the
defenders’ approach was said to be erroneous in two respects: firstly, it proceeded on the
basis that the pursuers were claiming cleaning costs for ever into the future and, secondly, it
Page 6 ⇓
6
assumed that the cost of cleaning was an exhaustive measure of the damages sustained.
Revenue costs were only one aspect of the pursuers’ losses: separately, and independently,
there was the diminution in value of the property resulting from the loss of amenity caused
by the blackening and consequent need to carry out frequent cleaning. Those were separate
heads of loss. Reference was made to Raymond v Young (above) and to the speech of
those authorities that the pursuers could not claim both diminution in value and, separately,
a sum representing either loss of amenity or inconvenience and distress. One or other of
those could be claimed, along with cleaning costs and the cost of replacement of damaged
furniture. But it was not possible to be confident without enquiry which would be the
appropriate measure: if, for example, evidence of diminution in value was inconclusive, the
pursuers might have to rely instead upon a more generalised claim for loss of amenity.
[9] As regards the multiplier, the starting point was that the pursuers did not aver any
intention to move house. The multiplier should therefore be based in the first instance, as in
actions for personal injury, on an actuarial calculation using the pursuers’ life expectancy. It
was accepted, however, that the claim for future costs could only cover the period prior to a
future sale. It would be a matter for the court to decide whether, and if so to what extent,
the multiplier should be reduced to take account of the possibility of the pursuers selling up
and moving away. Any hypothetical future purchaser would not be able to make a claim for
cleaning costs during his or her period of ownership because all of the elements of damages
would have been reflected in a reduced purchase price paid to the pursuers.
[10] In response to the defenders’ second criticism, it was submitted that the purpose of
pleading was to give fair notice, not prescriptive and exhaustive detail. Fair notice had been
given of the items of expenditure that were relevant to pecuniary loss. It was neither
Page 7 ⇓
7
possible nor necessary to plead a particular multiplier for future expenditure. How the
averments translated into a final figure could only be determined after proof.
Decision
[11] In my opinion the issue of double counting will be better resolved after enquiry. I
am further satisfied that the pursuers’ averments in relation to costs and expenses are
sufficiently specific to justify the allowance of proof before answer.
[12] The relationship between a claim for diminution in value and a claim for loss of
amenity was considered by the House of Lords in Hunter v Canary Wharf Ltd (above) and by
the Court of Appeal in Raymond v Young. In the former case, Lord Hoffmann observed
(page 706), under reference to Bone v Seale [1975] 1 WLR 797 which concerned nuisance
consisting of smells from a pig farm:
“…Diminution in capital value is not the only measure of loss. It seems to me that
the value of the right to occupy a house which smells of pigs must be less than the
value of the occupation of an equivalent house which does not. In the case of a
transitory nuisance, the capital value of the property will seldom be reduced. But the
owner or occupier is entitled to compensation for the diminution in the amenity
value of the property during the period for which the nuisance persisted. To some
extent this involves placing a value upon intangibles. But estates agents do this all
the time. The law of damages is sufficiently flexible to be able to do justice in such a
There may of course be cases in which, in addition to damages for injury to his land,
the owner or occupier is able to recover damages for consequential loss. He will, for
example, be entitled to loss of profits which are the result of inability to use the land
for the purposes of his business. Or if the land is flooded, he may also be able to
recover damages for chattels or livestock lost as a result. But inconvenience,
annoyance or even illness suffered by persons on land as a result of smells or dust
are not damage consequential upon the injury to the land. It is rather the other way
about: the injury to the amenity of the land consists in the fact that the persons upon
it are liable to suffer inconvenience, annoyance or illness.”
Page 8 ⇓
8
For present purposes the last two sentences are of significance: they emphasise that
diminution of the amenity value of land is not something separate from the inconvenience
or other form of damage suffered by the occupant of the land.
[13] Lord Hoffmann’s observations were concerned with what he described as a
transitory nuisance which, because of its temporary nature, did not cause a diminution in
value of the land, with the consequence that the claim had instead to be framed in terms of
loss of amenity. Raymond v Young, on the other hand, was concerned with the interaction
between diminution in value and loss of amenity in circumstances where the nuisance was
likely to continue in the future. The facts were unusual in that the nuisance consisted of
aggressive and anti-social behaviour by a neighbour, which the judge at first instance found
was likely to affect future occupants in the event that the claimants sold the property. The
judge awarded the claimants the sum of £155,000 for diminution in value, on the basis that
the nuisance would continue in the future, and a further sum of £20,000 in respect of loss of
amenity and also anxiety and distress. The Court of Appeal held that the judge had erred in
making both awards. Having cited a passage from Lord Hoffmann’s speech in Hunter
which included the dictum that I have already set out, Patten LJ (with whom the other
members of the court agreed) observed at paragraphs 27 and 28:
“27. … I read the passage I have quoted as an endorsement of the principle that
damages for what is commonly described as loss of amenity are damages for the
diminution in the value of the right to occupy the affected property and not merely
damages for the personal distress or inconvenience suffered by the individuals
concerned. They are intended to and do compensate the claimant landowners for the
distress and loss of amenity which they experience as a result of the nuisance but
only in terms of the consequent loss in the use value of their property…
28. It must, I think, also follow from this that it is not appropriate to make separate
awards of damages for distress in cases of nuisance. The consequences in terms of
personal distress or discomfort which the claimant may experience as a result of the
nuisance are, as I have said, simply part of the assessment of the claimant occupier's
loss of amenity.”
Page 9 ⇓
9
[14] On the facts of Raymond v Young, Patten LJ expressed his conclusions at paragraph 39
as follows:
“The Recorder was wrong in my view to have awarded the claimants the full
measure of their capital loss and also £20,000 by way of damages for loss of amenity.
Unlike in [Dennis v Ministry of Defence [2003] EGLR 121], the loss of capital value
figure has not been reduced to take account of the transitory nature of the nuisance
and is historic in the sense that it represents the consequences of the defendants' acts
of nuisance over the period up to the trial. There is therefore double recovery in this
case by the award of both sums. They are alternative methods of calculating the
diminution in value of the claimants' property and if damages are to be awarded for
loss of capital value then damages for loss of amenity are excluded.”
Patten LJ went on to emphasise that the same reasoning would apply if all or part of
the £20,000 were treated as representing damages for distress: there would still be double
counting because the distress was reflected in the damages awarded for loss of value.
[15] In the present case it is not averred on behalf of the defenders that steps are being or
may be taken to put an end to the alleged nuisance complained of. For the purposes of the
present discussion, therefore, the nuisance complained of must be regarded as a continuing
one, and the case is in that respect analogous to Raymond v Young. As can be seen from the
pleadings set out above, the pursuers have a claim both for diminution in the value of their
house, and also for particular types of inconvenience and loss of amenity, such as the need
to spend time and effort cleaning the external walls of the house, and restrictions on the
types of materials that they can use in their garden and on their choice of colour of
paintwork for external items. Senior counsel for the pursuers accepted that there was a
degree of double counting here, and that the pursuers would not be entitled to both. I
consider, however, that the proper measure of the pursuers’ loss, if any, ought to be
determined after the hearing of evidence, especially on the contentious issue of whether the
presence of black discolouration has in fact caused a diminution in the value of their
property.
Page 10 ⇓
10
[16] The principal area of controversy between the parties came to be whether the
pursuers were entitled to claim both (a) diminution in value/loss of amenity and (b) past and
future cleaning costs. In my opinion there is no double counting as between these two
heads of claim. If the pursuers were to succeed in proving that the value of their house has
been diminished, this would represent the loss of future amenity resulting from the
occurrence of discolouration and the need to take regular measures to remove it. That is not,
in my view, the same thing as either the past costs of cleaning, or future costs of cleaning
likely to be incurred by the pursuers themselves. The claim for past costs may be regarded
as analogous to the claim for consequential losses such as loss of profits mentioned by
Lord Hoffmann in Hunter (above): they are additional to the damage to the property itself.
[17] With regard to estimated future cleaning costs, as senior counsel for the pursuers
rightly acknowledged, any claim extending beyond the pursuers’ period of ownership
would overlap with the claim for diminution in value. Provided the claim for future costs is
restricted to the period of the pursuers’ ownership, the position is no different from the past:
the claim for cleaning costs would be for a loss sustained in addition to the alleged
diminution in value or loss of amenity. The requirement for the court to fix an appropriate
multiplier is, of course, a complicating factor. But it is no different in principle from the task
faced by the court in quantifying other kinds of continuing future loss, such as loss of
earnings from employment or profits from business, or costs of provision of care. Again this
is a matter that can only be properly assessed in the light of evidence led at proof.
Addressing the question of relevancy that arises at this stage, the pursuers have in my view
pled a relevant case that they will continue to incur cleaning costs for as long as they
continue to occupy the property and the emission of ethanol vapour into the atmosphere
continues.
Page 11 ⇓
11
[18] I turn finally to the question whether the pursuers have provided fair notice of the
quantification of their claim for cleaning and other costs incurred. Senior counsel for the
defenders criticised the pleadings as failing to provide a coherent explanation of the
composition of the sum sued for. In my opinion, however, the pleadings contain fair notice,
in accordance with the norms of ordinary action procedure, of the types and amounts of
expenses that the pursuers claim to have incurred. It is not (yet) a requirement in ordinary
actions that a pursuer produce a more precise valuation of his or her claim. There is, for
example, no equivalent for ordinary actions of Rule of Court 43.6(1)(b) which provides, in
personal injury actions, for the lodging by both parties of statements of valuation. In other
forms of procedure, such as commercial actions or actions proceeding under Chapter 42A,
the court might be minded, in exercise of its case management powers, to order a party to
provide a breakdown indicating precisely how the sum sued for is arrived at. None of this
applies to ordinary actions which remain governed simply by established principles of fair
notice. In my opinion the pursuers have given sufficient notice of costs and other losses
which, if all were to be established in evidence, might amount to the sum sued for or
thereabouts. My view as just stated should not, of course, be interpreted as the expression of
any opinion as to the likelihood of the pursuers succeeding on liability or, if they do so
succeed, on their prospects of recovering the whole of the damages that they seek.
Disposal
[19] For these reasons I shall pronounce an interlocutor allowing proof before answer.
Questions of expenses are reserved.