Chalmers & Anor v Diageo Scotland Ltd [2017] ScotCS CSOH_36 (03 March 2017)

Chalmers & Anor v Diageo Scotland Ltd [2017] ScotCS CSOH_36 (03 March 2017)

The pursuers have pled a sufficient case on liability in nuisance to proceed to proof before answer, as their averments meet the requirements for culpa and plus quam tolerabile. Issues of locality, regulatory compliance, prescription, and specification of loss require factual enquiry and cannot be determined at this stage. The pursuers' pleadings on loss lack specification, but they will be given an opportunity to amend.

Citation
[2017] ScotCS CSOH_36
Parties
Pursuer: Thomas Chalmers; Pursuer: Gail Chalmers; Defender: Diageo Scotland Limited
Jurisdiction
Scotland
Judgment Date
03 March 2017
Procedural Posture
Civil (damages for Nuisance) / Procedural Roll; Motion to Dismiss (pleas in Law)
Outcome
Proof before answer allowed on liability; pursuers given opportunity to amend pleadings on loss; case put out by order for further procedure.
Legal Topics
Private Nuisance, Prescription, Damages, Specification of Pleadings, Regulatory Law and Nuisance, Coming to the Nuisance
Tort/delict Environmental Law Property Law Private Nuisance Prescription Damages Specification of Pleadings Regulatory Law and Nuisance +1 more

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Parties

Thomas Chalmers

Pursuer

Gail Chalmers

Pursuer

Diageo Scotland Limited

Defender

Procedural Posture

Civil (damages for Nuisance) / Procedural Roll; Motion to Dismiss (pleas in Law)

Legal Issues

  1. 1 Whether the pursuers have pled a relevant and sufficiently specific case of nuisance against the defenders for release of ethanol vapour causing black fungus on property
  2. 2 Whether regulatory compliance or planning permission precludes liability in nuisance
  3. 3 Whether prescription or 'coming to the nuisance' is a defence to the claim

Ratio Decidendi

The pursuers have pled a sufficient case on liability in nuisance to proceed to proof before answer, as their averments meet the requirements for culpa and plus quam tolerabile. Issues of locality, regulatory compliance, prescription, and specification of loss require factual enquiry and cannot be determined at this stage. The pursuers' pleadings on loss lack specification, but they will be given an opportunity to amend.

Court Disposition

Proof before answer allowed on liability; pursuers given opportunity to amend pleadings on loss; case put out by order for further procedure.

Orders

  • Case to proceed to proof before answer on liability.
  • Pursuers to seek leave to amend pleadings to provide specification of loss.