Judge rules couple can sue over ‘angel’s share damage’
Owners claim ethanol escaping from whisky casks devalues home
A COUPLE who claim the “angel’s share” from a whisky bond has blighted their property have won the right to sue a distilling giant.
Thomas and Gail Chalmers allege the evaporated alcohol from maturing casks stimulates the growth of an unsightly black fungus which has discoloured their home and car.
The couple, of Woodlea Gardens, Bonnybridge, in Stirlingshire, raised an action at the Court of Session in Edinburgh suing distillers Diageo for £100,000.
But the drinks firm sought to have the case dismissed at a procedural hearing arguing the claim was of “an unprecedented nature with the potential to have radical impacts on a major industry”.
A judge has now ruled the couple’s action can go ahead to a hearing of evidence.
Lord Ericht said: “There is no doubt that damages for nuisance can be awarded by the Scottish courts.”
But the judge said it was essential the circumstances were fully established before a decision was made.
He said: “In my opinion the pursuers have pled a sufficient case to allow their averments on liability to go to proof.
“They have not pled a sufficient case on loss, but I shall give them an opportunity to seek leave to amend.”
Craig Connal QC, for Diageo, had argued the distiller, which ages whisky in nine bonded warehouses at the site near the Woodlea Park development where the couple own their home, had a long-standing operation and the Chalmers properties were “incomers”.
He said Diageo was carrying out the business with all the required permits issued by public authorities and that many of the couple’s assertions had been rejected by an independent public body.
For the Chalmers, it was maintained that the bonded warehouse releases ethanol at a level which germinates the fungus Baudoinia compniacensis – known as the “warehouse staining fungus” – which covers their property in a black coating and that amounted in law to a nuisance.
They alleged the growth has attacked wooden garden furniture and paving stones and a sun-deck was destroyed.
They maintain it has discoloured garden tables and chairs, potted plants and outdoor toys and left the roof with visible black staining.
They complain they need to have their home and car cleaned regularly in a continuing bid to control the fungus and that the damage has lowered the value of the property.
In the action the couple accept that during the maturing of whisky air enters casks and ethanol and other substances leave them.
But they maintain it is not an essential part of the process “that the ethanol is permitted to escape the premises and to damage neighbouring properties”.
In its defence to the claim, distillery owners Diageo said: “Cosmetic discolouration has no impact on property value and has had no impact on the value of properties in the Bonnybridge area.”
It said its warehouse development became operational in 1979 but the neighbouring estate which was built on undeveloped land was built in 2002.
The drinks giant added that any ethanol derived from its operation in the area where the Chalmers live “is at levels so low as not to be capable of ready detection and measurement”.