Introduction

The case of Thomas Chalmers and Another against Diageo Scotland Ltd ([2023] CSOH 43) presents a significant legal examination of nuisance caused by environmental factors emanating from industrial activities. The plaintiffs, Mr. and Mrs. Chalmers, residing in Bonnybridge, alleged that ethanol vapors released from Diageo's bonded warehouses led to the growth of a black fungus, Baudoinia, resulting in property damage and decreased property values.

The key issues revolved around whether Diageo's ethanol emissions constituted a nuisance under Scottish law, the causation between the emissions and the fungal growth, and the subsequent damages suffered by the Chalmers due to property devaluation and maintenance expenses.

Summary of the Judgment

Lady Carmichael delivered the judgment in the Outer House of the Court of Session on June 30, 2023. The court scrutinized the procedural history of the case, including amendments to pleadings and the involvement of scientific evidence regarding the presence and impact of Baudoinia fungus.

The primary decision was to dismiss the plaintiffs' action due to insufficient specification and relevancy in their claims. The court found that the plaintiffs failed to adequately demonstrate that the presence of Baudoinia was directly caused by Diageo's ethanol emissions and that it constituted a substantial interference with the use and enjoyment of their property.

Additionally, the court addressed the allocation of expenses arising from procedural amendments, ultimately holding the plaintiffs liable for the defenders' expenses related to the amendment process.

Analysis

Precedents Cited

The judgment referenced several key legal precedents to assess the nature and applicability of nuisance claims:

• Gloag & Henderson, The Law of Scotland (14th Ed) paragraph 28.08: Outlines the balance between a property owner's freedom to use their land and the duty not to cause material loss or inconvenience to others.
• Watt v Jamieson 1954 SC 56: Introduces the concept of substantial interference, necessitating a level of seriousness beyond mere annoyance.
• Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4: Clarifies that material interference is judged by an objective standard, not the subjective feelings of the affected party.
• Arrott v Whyte (1826) 4 Murr 149: Establishes that the interference must be substantial, considering the perspective of an ordinary person in the same situation.
• W J Stewart & D Brodie, Reparation: Liability for Delict, Vol 1, A28-012: Emphasizes the necessity of fault and material contribution to the damage.
• Simmons v British Steel Plc 2004 SC (HL) 94: Highlights the need for damages to be compensatory, reflecting the position absent the nuisance.

Legal Reasoning

Lady Carmichael meticulously evaluated whether the Chalmers could establish a prima facie case of nuisance. The court required the plaintiffs to demonstrate that the ethanol emissions from Diageo's warehouses were not only present but causatively linked to the proliferation of Baudoinia fungus leading to property damage.

The judgment underscored the plaintiffs' obligation to provide clear, specific evidence showing:

• The presence of Baudoinia was directly caused by ethanol emissions from Diageo's premises.
• The fungal growth constituted a substantial interference with the plaintiffs' use and enjoyment of their property.
• The damages claimed, including property devaluation and maintenance costs, were a direct consequence of the alleged nuisance.

The court found that the plaintiffs' pleadings lacked sufficient specification, particularly in linking the ethanol emissions definitively to the fungal growth and quantifying the resultant losses. The amendment to the pleadings introduced ambiguities, failing to rectify the inadequacies in establishing a clear causal nexus.

Impact

This judgment sets a critical precedent for nuisance claims related to environmental and industrial emissions. It emphasizes the necessity for plaintiffs to provide detailed, specific evidence establishing a direct causal link between the defendant's actions and the alleged nuisance.

Future cases will likely reflect the stringent requirements for specificity in pleadings and the importance of expert evidence in substantiating claims of environmental nuisance. Additionally, the decision underscores the court's discretion in allocating procedural expenses, incentivizing parties to present well-founded and clearly articulated cases from the outset.

Complex Concepts Simplified

Nuisance in Property Law

**Nuisance** refers to an action or condition that significantly interferes with a person's use or enjoyment of their property. In legal terms, it's not just about inconvenience but substantial interference that affects property rights.

Causation and Liability

**Causation** involves establishing a direct link between the defendant's actions (ethanol emissions) and the plaintiff's damages (fungus growth and property damage). Without clear causation, liability for nuisance cannot be assigned.

Procedural Amendments in Litigation

**Procedural amendments** are changes made to legal pleadings to clarify, expand, or adjust the claims or defenses. While amendments can clarify a case, they must be made in good faith and not alter the fundamental nature of the claims in a way that unfairly prejudices the opposing party.

Expert Evidence

**Expert evidence** involves specialized knowledge provided by experts to support or refute claims in a case. In this context, mycologists were essential to determine the presence and impact of Baudoinia fungus.

Conclusion

The judgment in Chalmers v Diageo Scotland Ltd underscores the critical importance of specificity and substantiated evidence in nuisance claims. Plaintiffs must meticulously demonstrate the causal relationship between the defendant's actions and the alleged interference, supported by expert testimony.

Additionally, the court's handling of procedural expenses serves as a reminder of the financial ramifications of litigation strategies, particularly concerning amendments to pleadings. This case reinforces the judiciary's role in ensuring that nuisance claims are grounded in objective, verifiable facts rather than subjective grievances.

Overall, this decision provides valuable guidance for future environmental and property-related litigation, promoting rigorous evidence standards and procedural fairness.