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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> King v Advocate General for Scotland [2008] ScotCS CSOH_166 (05 December 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_166.html Cite as: [2008] CSOH 166, [2008] ScotCS CSOH_166 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 166 |
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OPINION OF LORD WOOLMAN in the cause ALYSON KING Pursuer; against Dr M Clarke QC, MP, THE ADVOCATE GENERAL FOR SCOTLAND Defender: ญญญญญญญญญญญญญญญญญ________________ |
Pursuer: Party
Defender: Mr Webster,
Morton Fraser, Solicitors
5 December 2008
Introduction
[1] This case involves alleged damage caused
by low-flying military aircraft. The
pursuer breeds and rears horses, in particular black Arab stallions. In late 2000, she purchased a property in
south-west
[2] Miss King estimates that there are now
about thirty incidents each month. Often,
low flying pairs of jet aircraft pass directly over her subjects three or four
times each day. In this action, she
seeks compensation for the damage which she alleges has been caused to her, her
horses and to her property by the low-flying aircraft. The pursuer's claim against the defender is
based upon two causes of action: (a) nuisance; and (b) infringement of Article
8 and Protocol 1 of the European Convention on Human Rights. The defender denies the claim in fact and law
and stresses that low level aircraft training is important in the defence of
the realm.
Failure to Aver Material Facts
[4] The first conclusion seeks a declarator
of nuisance. The second conclusion seeks
a declarator that the pursuer's Convention rights have been infringed. Both refer to aircraft flying "in the airspace
over the pursuer's property ... at an altitude of less than 250 feet". Mr Webster's short point in this connection
was that the pursuer does not offer to prove facts in support of those
conclusions. Condescendence 3 refers to
"flying over the subjects at low altitude". However, it does not state that the flights
over her property were conducted at less than
250 feet. The only other reference to
altitude is the averment that "The surrounding trees are approximately 100 feet
high and the aircraft generally pass just above the tree line". Mr Webster said that these references were
simply assertions. The pursuer did not
offer to prove the altitude of the flights was below 250 feet. Accordingly, the conclusions for declarator
could not be granted and the action should therefore be dismissed.
[5] In my view, this argument is not well
founded. Pleadings must be read as a
whole and can create their own lexicon. Condescendence
5 states that "the noise and vibration created by the aircraft operated by the
defenders in flying at low altitude (i.e below 250 feet) over the subjects
constitute a nuisance". In my opinion,
the reference to "low altitude" in Condescendence 3 should be construed in the
same way. Accordingly, the defender has fair notice that the pursuer is
offering to establish that aircraft fly over her subjects below the height of
250 feet and in some instances at a height of only just above 100 feet.
Incorporation of Expert Reports
[6] The pursuer relies upon certain reports
to support her case, all of which she purports to incorporate into the
pleadings. They are as follows: (a) "Low
Flying Military Noise and Vibration Assessment: Drumjohn Farm, Carsphairn" prepared
by Bryce Drummond Associates dated 17 September 2004; (b) physiotherapy reports
dated 9 December 2003 and 13 September; (c) a medical report prepared by the
pursuer's GP dated 9 September 2005; and (d) a five year business plan for the
years 2002 to 2006 inclusive, together with appendices, prepared by the
pursuer's accountants. Mr Webster
challenged the wholesale incorporation of these reports. He focussed his submissions on reports (a) and
(d). He said that they included
irrelevant material and that it was inappropriate and inconsistent with normal
practice to incorporate them in that way. If the pursuer was right in her approach, it
would be necessary for the defender to respond to the reports line by line in
the Answers. It followed that the averments
relating to the reports were irrelevant and should not be remitted to
probation.
[7] No authority was
cited to me. I therefore approach the
matter by asking whether in
respect of each report, such incorporation is a satisfactory way of giving specification.
That depends on the nature of the case
and the nature of the incorporated material (The Royal Bank of Scotland plc v Holmes 1999 SLT 563, 570F per Lord Macfadyen). In my view, the pursuer
was entitled to incorporate reports (a) to (c) inclusive. In respect of the noise report, the pursuer's
primary averment is that "Noise levels have been recorded at in excess of 110
dB." In my view the reference to the
report gives notice to the defender of where that averment derives. With regard to the medical reports, the
pursuer is simply offering to prove that as part of her loss, she
required medical treatment as outlined in the reports. They are not substitutes for proper written pleadings and I do not
see that the defender is prejudiced by reason of any lack of specification.
Altitude Guidelines
[9] In Tactical Training Areas, the Ministry
of Defence guidelines require aircraft to fly at a minimum separation distance
('MSD') of 100 feet. The MSD is "the
distance between the aircraft and the ground or buildings/trees"
(Condescendence 4). The pursuer offers to prove that this guideline was broken.
The precise averment is as follows: "In
flying at an altitude which is just above the treeline around the subjects, and
therefore below the MSD, the aircraft passing over the subjects are operating
in breach of these guidelines". Mr
Webster made three criticisms of this averment. First, it contradicts the pursuer's averment
that the trees are approximately 100 feet high. Secondly, it does not
distinguish aircraft passing above the tree line around the subjects, from
those passing over the subjects themselves. Thirdly, the pursuer fails to identify the
incidents when the guidelines were breached.
Specification of Loss
[12] Mr Webster went on to challenge the
specification of a number of heads of loss:
Distress
Structural Damage
[14] The pursuer seeks compensation for the
"shaking of the windows of the subjects and structural damage thereto". As Mr Webster noted, there is no indication of
when this occurred, nor the cost of repairs. In the course of debate, Miss King said that
she relied solely upon the occasion when two jets went directly overhead and a
crack went straight down the four inch breeze blocks. In my view, there is insufficient
specification to support this head of loss. I shall therefore exclude from probation the
following averments in Condescendence 3 "The noise causes windows in the
subjects to vibrate. The vibration
caused by the sound waves has caused structural damage to the subjects. Masonry has fallen from the roof of the house
several times. A crack has appeared in
the stable wall from window to floor."
Veterinary Bills
Loss of Income
Loss of Value in Property
Conclusion