Horse owner loses bid for damages over low-flying jets

Alyson King, from Carsphairn, near Castle Douglas, took court action against the Ministry of Defence. She said the low flying resulted in the death of 25-year-old Arabian stallion Kalabar Mistanny, whose paddock name was Kali.

King says Kali died from injuries after bolting in terror at the sound of low-flying Royal Air Force fighters. The horse had been a mascot for Lloyds TSB bank some years ago.

Lord Pentland, sitting in the the Court of Sessions, rejected King's damages claim.

King claimed before the judge that the low flying, which can take place at an altitude of less than 250 feet, constituted a nuisance and an infringement of her rights under two articles of the European Convention on Human Rights.

The judge said evidence led by King, who represented herself at the hearing, was limited in scope.

She gave evidence that aircraft flying above the subjects at a height of more than 250 feet did not cause any problems for the occupants of her property, Drumjohn, or any of the horses or other animals kept there.

"She has always maintained that it is only aircraft flying below that altitude which create an unacceptable level of disturbance due to the noise they generate," the judge said.

King, the judge said, claimed that she and others were well able to estimate the height of aircraft to a good level of accuracy by reference to nearby trees.

King had also produced a letter from her daughter, Sarah King; she explained that she was unable to attend the hearing because of the effects of an injury caused by a horse which had been startled by a low-flying aircraft.

"She wrote of the tops of the trees shaking as the jets flew past; sometimes they flew beneath the tops of the trees causing the horses and other animals to be terrified."

The judge pointed to discrepancies between calendar references to incidents of low-flying and those of official RAF records.

"The conclusion which, to my mind, must be drawn from the evidence as a whole is that the amount of [flying below 250 feet] over the subjects, if indeed there is any, is substantially less than [King] claimed.

"I am willing to accept that military aircraft do fly over the subjects from time to time, but I am unable to conclude that the pursuer has proved that there is a significant amount of OLF (ie flying below 250 feet) as opposed to flights at a higher level.

"Her records of OLF rely on mere visual estimation from ground level and are, in my opinion, of highly questionable accuracy for this reason alone. In cross-examination the pursuer accepted that her approach was no more than what she characterised as a well-educated guess.

"I formed the clear impression that [King] has, for whatever reason, convinced herself that there is a substantial amount of OLF over the subjects. She sincerely believes this to be the case, but the facts as established in the evidence do not bear this out."

The judge said he was not persuaded that King had established that a significant amount of flying below 250 feet occurred over her residence.

"That would be sufficient to dispose of the action in favour of the defenders, but I should explain also that the pursuer did not lead any evidence of noise levels at the subjects, although there was reference in her pleadings to an expert noise assessment and report prepared in September 2004."

He said there was insufficient evidence to satisfy him that aircraft noise and vibration from low flying constituted an intolerable nuisance and that they are of higher levels than an occupier of property ought reasonably to expect.

"Not only was there no expert evidence led on noise levels, the pursuer also failed to lead any medical evidence to support her allegations of personal injury. She led no veterinary evidence to prove her averments of injury to her horses. Overall, there was insufficient evidence led, in my opinion, to allow me to make a finding that any OLF over the subjects amounted to a nuisance."

King, he said, "has not come anywhere close to proving, as it seems to me, that in all the circumstances any OLF which may occur over the subjects constitutes serious disturbance or substantial inconvenience to her in the use or enjoyment of the subjects. On that basis her case, insofar as it proceeds on a complaint of nuisance, fails".

The claims of breaches of her human rights also failed for want of proof, the judge said.

"[King] has led insufficient evidence to allow me to find that her private and family life and home have been detrimentally affected by low flying aircraft or that the peaceful enjoyment of her possessions has been impaired.

"In the result, the pursuer's action fails for want of proof."