CHALMERS AND (SECOND) GAIL CHALMERS AGAINST DIAGEO SCOTLAND LTD [2019] ScotCS CSOH

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	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] CSOH 63, 2019 SLT 1184, [2019] ScotCS CSOH_63, 2019 GWD 26-417

[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

[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.

[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

“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

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

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

[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.

[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

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

[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

[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

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

Lord Hoffmann in Hunter v Canary Wharf Ltd [1997] AC 655. It was accepted on the basis 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

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.

[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

“…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

case: compare Ruxley Electronics and Construction Ltd. v. Forsyth [1996] AC 344.

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

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

[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

“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

[14] On the facts of Raymond v Young, Patten LJ expressed his conclusions at paragraph 39

“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

[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

[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.

[19] For these reasons I shall pronounce an interlocutor allowing proof before answer.

Questions of expenses are reserved.

Scottish Court of Session Decisions