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Elizabeth Anton and another v South Ayrshire Council and another and North Ayrshire Council (party minuter) [2012] CSOH 80 - 11 May 2012


The pursuers' husband worked for Ayr County Council from 1948 to 1971. As part of his employment as a joiner on council housing projects he was exposed to asbestos, diagnosed with mesothelioma in 2007 and subsequently died of asbestosis. This is a personal injuries action brought against the successor local government authority South Ayrshire Council.

This case relates to the transfer of liability in delict from Ayr County Council to successor local government bodies following reorganisation through Regulation 3 of SI 1975 No 629 the Local Authority etc (Miscellaneous Provision) (Scotland) Order 1975 made under the Local Government (Scotland) Act 1973 S.1(5). It was accepted that if liability was transferred in 1975, then it was also transferred by the Local Government (Scotland) Act 1994 (the 1994 Act) and statutory instruments made under this Act. A second issue was to which of the four successor councils liability attached if liability was transferred by under 1975 Act.

1 .
The court held that “liability” in SI 1975 No 629 had to be given a wide interpretation which included transfer of potential liability in delict in cases where it was established in law that damnum may occur separate in time from injuria, as well as actual liability in delict, either of which the court held, were potentially present in this case.
The court further held that the purpose of the 1973 Act and SI 1975 No 629 cannot have been to relieve the new local authorities from legal liabilities incurred by their predecessors and so deprive members of the public of remedies.
In reaching her decision Lady Clark confirmed Downie v Fife Council 2001 SC 793 and favourably considered Walters v Babergh DC (1983) 82 LGR 235 in her discussion.

The court held that liability attached to those successor councils to whom either the employment function or the housing function of Ayr County Council had been transferred under the 1975 Act. Therefore, while the employment function had beeno transferred to only one successor council, all four successor council were liable in respect of the housing function.

The court allowed the pursuers to proceed with the action.