Smell of success for neighbours as Sheriff Appeal Court upholds ‘nuisance’ finding

A sheriff ruled that the pursuers had suffered loss, injury and damage as a result of the “nuisance” created by the defenders, who had contaminated their properties with kerosene.

The Sheriff Appeal Court refused the defenders’ appeal after ruling that the sheriff was entitled to infer culpa on their part, as oil had leaked from a tank on their land.

Sheriff Principal Duncan Murray, Sheriff Principal Alastair Dunlop and Sheriff Peter Braid heard that the parties in the conjoined actions were all previously neighbours in Ayr Drive, Airdrie.

The defenders and appellants Robert and Maureen O’Hare resided at number 34; the pursuers James and Julia McAllister and their son at number 36; and Henry and Christine McKenna and their son at number 38.

In or around 2003 the defenders instructed contractors to convert the central heating system in their property from oil fired to gas, but they did not instruct the contractors to decommission the oil tank, which was only disconnected with a large quantity of oil remaining in the tank with the defenders’ knowledge.

Some two years later another neighbour, John Gillies, who lived at 32 Ayr Drive, borrowed a container holding approximately 10-12 litres of kerosene from the defenders before returning it to them in or around the late summer of 2006.

At the time of its return it contained 10-12 litres of oil as he had used very little.

Then, in or around July 2006 the first defender demolished a garden shed on his property and the pursuers became aware of a strong smell at their properties.

It transpired that the smell was due to contamination of their respective properties caused by kerosene, which had emanated from the tank on the defenders’ land.

The oil tank was in good condition and there was no defect with the tank, valve, or associated pipework which could have resulted in a leak, nor did the actings of the contractors cause any escape of oil from the defenders’ property.

The sheriff found that the oil contamination occurred on account of a spill of oil from a container and from the oil tank on the defenders’ property, and it was common ground that the contamination amounted to a nuisance.

Actions for damages were raised in the sheriff court and following a proof restricted to the issue of liability, the sheriff ruled in the pursuers’ favour.

The sheriff found that the defenders had a “duty to maintain and manage” the oil tank on their premises, but they failed in that duty which resulted in a spill of oil and the nuisance was caused on account of fault on the part of the defenders.

There were two challenges to the sheriff’s decision: first, the defenders argued that she “misapplied” the law in relation to nuisance; and second, they argued that her approach to the evidence was “flawed” and that she made findings in fact which the evidence did not entitle her to make.

But the appeal sheriffs upheld the sheriff’s decision and sent the case back to her for a proof on quantum.

Delivering the opinion of the court, Sheriff Braid said: “There is no dispute between the parties that, in order to succeed in a claim based on nuisance, the pursuers must aver and prove culpa on the part of the defenders…The difference between the parties comes down to the degree of precision to which a pursuer must go in establishing what it was that happened so as to cause the nuisance.

“What matters is not whether the pursuers can aver and prove the precise event which occurred, but whether they can aver and prove facts which may properly lead to an inference of culpa on the part of the defenders.

“As soon as that is established and as soon as it is established that the tank is under the defenders’ control, and that it was, as the sheriff found, in good condition then, given that oil does not escape such a tank of its own accord, an inference may be drawn that the oil escaped due to some human intervention on the part of the defenders from which culpa may, in turn, be inferred.

“It is clear from reading the remaining parts of the sheriff’s reasoning that she did in fact look at the whole evidence, and that she did in fact draw the inference that there had been human intervention by the defenders from which culpa could be inferred. Accordingly, we reach the view that although her reasoning could perhaps have been expressed more tightly, there was no substantive error in the sheriff’s approach to the law.”

The sheriff was entitled to make the findings in fact which she made, the court held.

He added: “From these facts, in our view an inference can be drawn not only that the oil escaped through some form of human intervention in the summer of 2006, but also that it was intervention by the defenders. Furthermore the defenders as the persons with control of the tank, and the first defender in particular as the person who was doing work in the vicinity of the tank, ought to have been able to provide an explanation as to how the oil came to escape. No explanation of any sort having been forthcoming, the sheriff was entitled to hold that culpa had been proved.”