Couple lose legal battle against Diageo over whisky casks causing blackening to home

A couple have lost a long-running legal battle to win damages from a major drinks firm over the “angel’s share” from maturing whisky affecting their home.

Thomas and Gail Chalmers bought a house at Woodlea Gardens, in Bonnybridge, in Stirlingshire, in 2002, which was part of a modern estate of more than 200 homes.

The Court of Session in Edinburgh heard that they were attracted to the property, which had a nature reserve at the back and a playpark area at the front.

Drinks firm Diageo operated a bonded warehouse complex to the south west of the nature reserve from the early 1980s, and there are now nine bonded warehouses for maturing whisky.

The couple brought a claim for compensation against Diageo Scotland Limited, maintaining that blackening in and around their property required cleaning and was “unsightly and depressing”.

The company contested the action in a hearing before Lord Young.

The judge said: “In this action, the pursuers (the Chalmers) claim that the defenders (Diageo) have created a nuisance which affects the amenity of their property.”

“They claim that ethanol, which evaporates into the atmosphere from the whisky casks, stimulates the germination, growth and development of a fungus called Baudoinia, which has caused blackening to the exterior of the house,” he said.

The court heard that the couple were aware that there were bonded warehouses beyond the nature reserve, but that did not trigger any concerns when they were considering buying the four-bedroom house.

Computer analyst Mr Chalmers first noticed that there was an issue in their second year at the house when he saw black dust, which was difficult to remove, on patio paving, children’s toys and garden furniture.

Mrs Chalmers, a cafe manager, said she wanted to remain at the house, which she regarded as her family home, but found the continual work required exhausting.

Lord Young said: “I consider that the answer to the question of whether the discolouration in this case falls to be judged as intolerable is finally balanced.”

“I accept that the pursuers describe a cleaning regime which goes beyond what would be expected for a residential house. In particular, the use of bleach on exterior walls every few years is unusual,” he said.

The judge said the critical question was whether the discolouration, which developed over time, amounted to “a material loss or inconvenience” or was “destructive of the ordinary comfort of life”.

He added: “I have concluded that it does not.”

Lord Young said: “I accept that there is a degree of interference with their use and enjoyment of their property, but I am not persuaded that the pursuers have proved that it is of such a degree that it goes beyond what a householder in an urban development close to an established industrial estate can be expected to tolerate.”

“Where the defenders are using their own land in a common and usual manner for the locality, any additional aesthetical interference with the pursuers’ property falls to be regarded as part of the general annoyance or discomfort which a proprietor must accept for their choice of residential location,” he said.

Lord Young added in his judgement: “For the avoidance of any doubt, although the defenders submitted that the importance of whisky production as a contributor to the Scottish and UK economy should be included as a factor in the tolerability test, I have not taken it into account.”

The judge ruled in favour of Diageo by granting a decree of absolvitor in the action launched in 2014.