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A widow has been given leave to proceed with a personal injury action against two Scottish councils over the death of her husband from mesothelioma, despite the fact that the councils did not exist at the time he was exposed to asbestos.

Mesothelioma is a form of cancer caused by exposure to asbestos, but it may take decades for the symptoms to appear. This time lapse means that when cancer is eventually diagnosed it can be difficult to pinpoint exactly where and when the exposure took place – and to identify the company or person responsible.

In this case, John Anton and his wife knew when the exposure took place – between 1947 and 1971, while Mr Anton was employed by Ayr County Council. However, by the time the mesothelioma was diagnosed in October 2007, two local government reorganisations meant that Ayr County Council had ceased to exist. Who then was responsible for the injury to Mr Anton?

The question for the court was whether liability could have been transferred to the local authorities that eventually succeeded Ayr County Council – South Ayrshire Council and East Ayrshire Council.

The councils argued that liability could not have been transferred because the order governing the reorganisation could only transfer liabilities that existed at the date of the transfer in 1975. As Mr Anton had not been diagnosed with mesothelioma until 2007, no liability had been in existence in 1975 and therefore could not have been transferred.

Lady Clark of Calton disagreed.

She found that the word ‘liabilities’ in the context of the 1975 regulations had a wider meaning that could include “contingent liability in the contractual sense”, and was wide enough to “cover potential liabilities”.

From a more general point of view, the purpose of the regulations and the underlying Act was not to relieve the new local authorities from the effects of legal rights, liabilities and obligations which had been incurred by predecessor authorities, she said.

“The reorganisation of local government was a complicated statutory exercise but it was no part of the purpose of the resultant legislation to take away remedies from individuals which they would have had but for the reorganisation,” she ruled. “In the present case, but for the reorganisation, the pursuers would have had a remedy against Ayr County Council for the death of the deceased if that local authority had not ceased to exist as a result of local government reorganisation.”

Mrs Anton could therefore proceed with her action against the two councils. 

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