McDonald v (1) Dept for Local Government (2) National Grid Electricity  EWCA
- In the way it illustrates the wide remit of the absolute liability imposed under the 1931 Regulations where there was (a) no foreseeable risk, (b) no breach of duty at common law, (c) no liability under section 47 (1) of the 1937 Act for dust of such a character as was “likely to be injurious” and (d) no infringement of the ‘substantial quantity of dust’ provisions of section 47 (1) of the 1937 Act.
- It is also significant because it seems this claim only succeeded under the 1931 Regulations because the Court of Appeal felt constrained to follow the Cherry Tree ratio, under the Young v. Bristol Aeroplane Co Ltd  KB 718 principle by which the Court of Appeal is bound by an earlier decision. The Court of Appeal appears to have had some sympathy with the Defendant’s contentions that the Cherry Tree was wrongly decided and that the Asbestos Industry Regulations 1931, as their title implies, are directed to the asbestos industry alone. Accordingly, it is possible that when this appeal is heard by the Supreme Court, it may disapprove of the Cherry Tree decision and restore a narrower scope to the 1931 Regulations; one that restricts its application to industrial manufacture of asbestos products, as opposed to their use elsewhere.
- Finally, the case provides an almost textbook illustration of the differences, not only between common law and statutory duties of care but also between the qualified / relative duty of care under generic health and safety legislation on the one hand, where the common law concept of reasonable foresight is relevant, and the asbestos specific regulations that impose an absolute duty, on the other. In the latter case, these regulations are subject only the defence of ‘practicality’, and that only in the sense of that the precautions stipulated should be impracticable to implement from a physical viewpoint and where an appreciation of the risk presented by the exposure to asbestos is not required.
- Breach of the common law duty of care,
- Breach of s47 (1) Factories Act 1937,
- Regulation 2 (a) Asbestos Industry Regulations 1931.