Tenant’s damp and mould injury claim dismissed over lack of evidence

Emma Macfarlane and her partner moved into the ground‑floor flat in January 2023. By autumn, she reported mould on a study wall. The landlord, Iain Kennedy, attended and cleared a blocked gutter, believing this was the cause. But the mould concerns continued, and by November, Macfarlane had been prescribed inhalers for asthma symptoms.

She raised a £2,500 claim under the Occupiers Liability (Scotland) Act 1960, arguing that the landlord had failed to maintain the property. Kennedy denied liability and said the real issue was poor ventilation and heating by the tenants.

The case was heard at the All‑Scotland Personal Injury Court by Sheriff Charles Walls.

Macfarlane’s expert, Mr Donnachie, inspected the property in December 2023. However, he provided only photographs of his damp meter in use, not the actual readings. His report suggested dampness was present.

The landlord’s expert, Mr Stewart, found no signs of damp. He said the building’s unusual construction, using metal instead of wood in parts of the walls and sub‑floor, meant rising damp was structurally impossible. He also identified a ventilation issue in one corner of the sub‑floor, but said this required monitoring rather than major repairs.

Kennedy, who has over 40 years’ experience in the building trade, told the court he believed the mould was caused by the tenants not heating or ventilating the property properly. A current tenant also gave evidence that she had experienced no damp or mould at all.

Sheriff Walls accepted that all witnesses were generally credible but said Macfarlane and her partner had likely overstated how well they ventilated the home—especially given that the next tenant had no issues and no structural repairs had been carried out.

He preferred the landlord’s expert evidence, noting that:

• The pursuer’s expert had not been asked to give an opinion on whether damp existed earlier in the year
• His report was based on assumptions about the building’s structure that were contradicted by the defender’s evidence
• There was no reliable proof of rising damp, wet rot, or any defect caused by the landlord

Crucially, the sheriff said the pursuer had failed to show:

• That damp of the type described actually existed
• What caused any moisture or mould
• How any alleged failure by the landlord had caused her asthma symptoms

He also noted that the 1960 Act does not impose automatic liability simply because mould is present.

Sheriff Walls dismissed the claim and granted decree of absolvitor in favour of the landlord, meaning the case is closed and the defender is cleared of liability.

A full case report has been published by our sister publication, Scottish Legal News.