A more rigorous approach to Asbestos?

Christine Devall & Ors (as Executors of the estate of Richard Devall, Deceased) v English Electric Company Limited [2026]

Facts

The deceased, Mr Devall, was employed by English Electric Company Limited between March/April 1965 to July 1965 as an apprentice electrical engineer at Sizewell A nuclear power station. It was claimed that Mr Devall was exposed to foreseeably harmful levels of respirable asbestos dust throughout this period as a result of working in the vicinity of laggers in the turbine hall. Medical diagnosis and quantum had been agreed between the parties, with only liability in dispute.

Witness testimony

Mr Devall provided no lifetime statement before his passing and witness testimony was provided for the claimant by Mrs Devall herself and Mr Devall’s brother-in-law, Mr Bryant. 

Mrs Devall was unable to recall or rehash any conversations with her late husband regarding his time at Sizewell or any particular asbestos exposure, instead she had become aware of the use of asbestos whilst doing her own research and that he “was likely to have worked alongside people who were dealing with asbestos”. Under cross-examination it was accepted that her evidence in relation to Mr Devall’s employment at Sizewell, and any asbestos exposure to have occurred, was entirely dependant upon the account given to her by Mr Bryant.

Initially, Mr Bryant gave a detailed account of his own recollections of working at Hinckley Point alongside laggers, who prepared asbestos paste which created significant clouds of dust. He recalled discussing the works both he and Mr Devall were undertaking and averred Mr Devall was most likely to have been working in close proximity to laggers. 

However, under cross-examination, Mr Bryant accepted that he did not get anywhere close to the laggers to see the work they were doing and could not recall seeing any physical mixing taking place. The laggers were working approximately 10 metres away from him. He recalled seeing dust coming from the sacks being emptied but confirmed that the dust did not reach where he was working. Mr Bryant also confirmed, under cross-examination, that he did not recall Mr Devall sharing any details with him about the nature, location, frequency or distance of any insulation working taking place in the turbine hall at Sizewell A. 

Expert evidence

The claimant relied upon a report from Mr Maddison, a health & safety expert, and the defendant obtained engineering evidence from Dr Cowley. Whilst both experts agreed that asbestos insulation was used at Sizewell A during its construction, neither expert was able to assist the court on the key factual issue of whether Mr Devall would have been exposed to any asbestos dust during his period of employment.

Submissions on exposure

The claimant’s case was put on the basis the Mr Devall had been exposed to the mixing of asbestos paste in the vicinity of where he was working in the turbine hall at a different power plant, and that this activity involved the release of asbestos dust. Counsel submitted that if the court was satisfied that unguarded asbestos mixing took place at Hickley Point, it was also likely to have been carried out in the same way at Sizewell A, with the same significant levels of dust being created.

The defendant submitted that the claimant has simply not been able to adduce any reliable evidence upon which the court can safely make the findings of exposure pleaded in this case. 

Findings

The court found that the evidence from experts and witnesses, taken at its highest, goes no further than establishing that one or more turbines were being insulated with some form of asbestos insulation at Sizewell A during the period that Mr Devall was working there. Whilst this gives rise to a possibility that Mr Devall was exposed to asbestos, no evidence had been provided to satisfy the court as to the nature of insulation being used, whether any dust was created or, the extent of any exposure by Mr Devall to that dust.  As a result, the judge dismissed the claim. 

Commentary

This case is a key example of the court’s increasingly strict approach to asbestos claims. It is becoming clear that the courts will not accept analogy as evidence and the conditions at one site cannot be used to infer exposure at another.

William Walter Howell v Pile Constructions (Southern) Limited and Zurich Insurance Company Limited [2026]

Facts

The claimant, Mr Howell, was employed by the first defendant for approximately 4-5 weeks in 1972 as a labourer at Great Ballard School. The claimant alleged exposure to asbestos from handling large, dusty sheets he believed were asbestos, sweeping up dust and debris and travelling home form work in a dusty van. Medical diagnosis and quantum had been agreed, with only liability disputed. It was admitted that, if the first defendant was found to be in breach of duty, the claimant was entitled to recover damages from the second defendant. 

There were no contemporaneous documents nor was there evidence from any witnesses who could assist in resolving the central factual dispute. The evidence available fell into three categories: (i) the claimant’s recollections; (ii) the results of investigations and enquiries at Great Ballard School; and (iii) expert evidence as to the inherent likelihood of the claimant’s account being accurate.

Preliminary point

The defendants raised a preliminary point on the evolution of the claimant’s case. Within skeleton arguments, the claimant asserted that as a result of the evidence, it was “less likely” Great Ballard School was the relevant school. The defendants relied on the judgment of Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041 and contended the court was required to decide the case on the basis on which it had been investigated. If it was now the claimant’s case that the relevant school was not Great Ballard School, the claim must fail. It would be unfair to the defendants otherwise. The court were not satisfied the case fell within the principles of Al-Medenni and refused to dismiss the claim on this basis.

Evidence

On 15th April 2024, the claimant’s solicitors at the time completed DWP application forms for the claimant, where it was stated the claimant recalled handling asbestos sheets and was in close proximity to this material when it was being cut to size by tradesmen in unprotected conditions. However, on 26th April 2026, a new firm of solicitors were instructed and further DWP forms completed. At this stage, no exposure to asbestos was alleged with the first defendant, with allegations being made against Slindun College Arundel, where the claimant was cutting asbestos sheets for the school theatre. 

In the letter of claim, the claimant recalled using asbestos sheets to line a stage and other areas in the school, particularly the school theatre. Within his witness evidence, the claimant stated that one of the workmen told him the sheets were asbestos and would be used for fireproofing. It was alleged some of the workmen would test whether the sheets were asbestos by using a broken piece of asbestos over a flame as a food heating place. The claimant also alleged the dust on his hands had a “distinctive asbestos smell”.  At a later commission hearing, it was found that all the claimant’s allegations had stemmed from a workman telling him the sheets contained asbestos and he would accept that if there was a white/whiteish grey board in the school theatre stage that was not asbestos, he would say he was wrong.

Evidence was obtained from Mr Law, a director of the school, who produced a 2004-2005 asbestos survey that found no asbestos material in the hall. He confirmed in witness evidence that he had not found any documentation to suggest that asbestos had ever been removed from the hall. The defendant’s expert, Ms Tierney, visited the school and found no evidence of historic asbestos removal. 

In their respective reports, the claimant’s expert, Mr Wallis, opined that if the claimant was handling insulting boards, for the purpose of fireproofing, these would have contained asbestos materials. Ms Tierney stated that plasterboard was a fire-resistant mineral board that had been available for decades prior to 1972. These boards were cheaper, easier to install and more lightweight. Ms Tierney opined that given the relatively small size of the building, there was no real reason to fireproof it and it made more sense to use the plasterboard, given its costs.

Findings

Upon consideration of all the evidence, the court could not find in favour of the claimant for several reasons. Mr Howell maintained throughout his case that asbestos dust had a “distinctive smell”. This statement was supported by neither expert and the court found that the dust the claimant was smelling could not have been asbestos. The claimant also advised other workmen were testing the material by using it “over a flame as a food heating plate”. Again, the experts found that the material the claimant saw being used in this way would not have been asbestos insulating boards.

The court also found the claimant’s evidence to be inconsistent. The claimant’s recollection developed over the course of the case and was found to be inaccurate in a number of respects; namely that he was not cutting asbestos sheets himself, the school theatre was not a Slindon College and he was potentially exposed to asbestos with a different employer in 1976. 

The court concluded that there was no evidence to support the existence of asbestos insulation board in the school hall at Great Ballard School. In addition, there was no evidence to suggest that asbestos insulation boards were installed in 1972 and removed before the 2004-2005 survey. Whilst expressing genuine sympathy to the claimant, the judge dismissed the claim.

Commentary

This case drives home the point that proving exposure demands hard, site-specific evidence over personal, inaccurate recollections. The court will put objective records and scientific plausibility ahead of an honest, but unreliable memory. 

Conclusions

These judgments sit alongside the earlier decision in Dilks showing a clear judicial trend - exposure is a fact to be proved and not a risk to be inferred. The cost of this shift is real. Many genuinely exposed workers, whose jobs were short and undocumented, with companies that are now long since dissolved, will now find the evidential bar incredibly high. Some worthy claims will fail, not because exposure did not occur, but because it cannot be recreated to the court’s satisfaction years later. Yet, from the court’s viewpoint, that is the price of preserving the integrity of the standard of proof. 

Dilks v Secretary of State for Energy and Climate Change [2026] EWHC 146 (KB)

The High Court recently dismissed a fatal mesothelioma case where the witness evidence obtained by the claimant was not sufficient to discharge the burden of proof in respect of alleged exposure to asbestos. As a result, a finding of causation could not be made. 

Facts

The Deceased, Mr Grocock, was employed by the National Coal Board between 1967 and 1988 as a mobile plant operator. The Deceased spent the majority of his time driving a grader, used to shape and level spoil heaps, at various collieries in the North Derbyshire Area. The claimant, Mr Grocock’s nephew, alleged that as a result of undertaking this work at the collieries, his uncle was exposed to asbestos.

Exposure

Whilst no documentary evidence was placed in front of the judge, both sides were able to adduce witness evidence. The claimant relied upon witness testimony from three former colleagues and himself, whilst the defendant relied upon the witness testimony of a former colleague and several managers within the National Coal Board. No direct evidence from the Deceased was obtained prior to his passing. 

It was the claimant’s case that the disposal of asbestos materials (namely asbestos cement sheets, asbestos lagging and asbestos lagged pipes) occurred regularly on the spoil heaps. It was alleged the Deceased was exposed to asbestos when driving the grader over the spoil heaps, disturbing the discarded asbestos containing materials.

It was the defendant’s case that, whilst it likely asbestos waste could have been disposed of on the spoil heaps, this would have been placed at the base of any ongoing layer, with spoil then placed on top. Any asbestos found to be in the spoil heaps would have formed a very small proportion of the spoil, which was largely made up of mud, rock and stone.

Submissions on exposure

The claimant accepted the evidence of exposure was not complete but submitted it would not be an “enormous leap” for the judge to find that the Deceased must have driven his grader over the waste at the pits where he worked. If he did that, he would have been exposed to asbestos.

The defendant, on the other hand, submitted that the court was being asked to take multiple leaps of faith as it was for the claimant to establish the Deceased was exposed to asbestos at a sufficient extent to amount to a breach of duty. On the basis of the evidence provided, the defendant submitted the claimant had not done this.

Findings

The judge considered the “thirteen axioms of act finding” as set out in Briggs v Drylined Homes [2023], which commence with the fact that the burden rests exclusively on the person making the claim and the standard to be applied is the balance of probabilities. The judge also noted the judgment in the Court of Appeal case of Johnstone v Fawcett’s Garage (Newbury) Limited [2005] EWCA Civ 467, which reminded him of the fact that the difficulty caused by evidential uncertainty rests on the party with the burden of proof.

The court accepted that asbestos waste had been disposed of on two colliery spoil heaps and the Deceased had worked at one of these locations. However, the judge found that it was improbable that the Deceased drove his grader over the asbestos as the evidence suggested this was done by bulldozers and compactors. The judge was also unable to attach sufficient weight to the claimant’s witness evidence as he was unable to distinguish between what the Deceased had told the claimant and what the claimant had learned from others.  As a result, the judge dismissed the claim. 

Comments

This case is a cautionary tale for asbestos practitioners. Mesothelioma claims are not immune from rigorous evidential scrutiny, and the courts should not bridge gaps in evidence or assume exposure simply because asbestos was present somewhere on site. 

John Reid v MCM Building & Civil Engineering Construction Limited & Pyramid Joinery & Construction Limited [2026] CSOH 34

A Scottish court was recently asked to determine whether each defender exposed the pursuer to asbestos and, if so, determine how liability should be apportioned. The court departed from the usual “Time on Risk” approach and apportioned liability using dose-based arguments.

Facts

The pursuer, Mr Reid, was employed by the MCM Building and Civil Engineering Construction Limited between 1999 and 2000 and by Pyramid Joinery & Constructions between 2000/2001 and 2002/2003. Both defenders agreed that they ought to have known that exposure to asbestos was dangerous at the time of the claimant’s employment and, if exposure to asbestos was established with either employer, then such exposure would have been sufficient to cause a material increase in risk of the development of mesothelioma.

The court was asked to consider (1) whether the pursuer was exposed to asbestos while employed by either or both defenders and, (2) if exposed to asbestos by both defenders, how liability should be apportioned between them.

The First Issue: Exposure

Upon hearing evidence for both sides, the court concluded the pursuer was both a credible and reliable witness and determined that the pursuer was negligently exposed to asbestos while in the employment of each defender. As a result, applying the so-called Fairchild exception to the “but for” test for causation and section 3(2) of the Compensation Act 2006, bother defenders were found to be jointly and severally liable in respect of the whole of the damage caused to the pursuer.

The Second Issue: Apportionment

When considering the issue of apportionment, the court made additional findings in fact with regards to exposure with both defenders. In relation to exposure with the first defender, the court found that the pursuer would have only been exposed to asbestos for a period of, at most, one and a half working days, when he was removing garage roofs, which were made of asbestos cement. In relation to exposure with the second defender, the court found that the pursuer would have been exposed to asbestos throughout his employment up to five days per week, for around two to three hours per day. The work involved tidying up dust and debris arising from the removal of AIB panels by joiners and being in the vicinity of the joiners when the removal work took place.

In making these additional findings, the court determined that it would not be just and equitable to apportion the claim on a time on risk basis. By focusing on the duration and intensity of exposure, the court issued a striking apportionment of liability: 99.908% liability to the second defender and 0.092% to the first defender.

Comments

The decision highlights the judiciary’s nuanced approach to causation and responsibility in mesothelioma cases where any exposure, however short, may contribute to liability.

David McNally v Gentoo Group Limited [2026] EWHC 750 (KB)

The claimant, a former painter and decorator, had been exposed to asbestos over many years whilst working for the local authority in Sunderland. The claimant developed a pleural tumour as a result of his exposure. The dispute centred on whether the tumour was mesothelioma or lung cancer.

Facts

Breach of duty had been admitted and quantum had been agreed, with the sole issue being medical diagnosis. A CT scan suggested the tumour was mesothelioma but the immunohistochemical results from cytology and biopsy were ambiguous.

Evidence

The court was provided with evidence from respiratory physicians and histopathologists.  The respiratory physicians agreed that radiology could not determine the differential diagnosis alone and histopathology and molecular analysis would determine diagnosis.

When considering immunohistochemical analysis, the defendant’s expert, Professor Attanoos, came down on a diagnosis of lung cancer given the Claudin-4 test showed positive markers in this case. The current ‘Guidelines for pathological Diagnosis of Mesothelioma’ state that Claudin-4 is positive in 99% of lung cancer but is “virtually always negative” in mesothelioma cases.

Whilst the claimant’s expert, Professor Nicholson, initially found in favour of lung cancer, he requested molecular testing take place, the results of which tilted the expert’s opinion to mesothelioma.

Findings

The court considered all evidence and concluded that the claimant is one of those very rare individuals who come within a very small percentage of cases where a positive Claudin-4 test result is not indicative of lung cancer. The court concluded, on the balance of probabilities, that the claimant was suffering from mesothelioma.

Comments

The case highlights the importance of obtaining specialist histopathology and molecular testing in cases where diagnosis is not straightforward. The evidential bar has now been raised for both claimants and defendants with molecular pathology potentially set to become more common in disputed cases. 

Conclusions

Taken together, Dilks, Reid and McNally show that asbestos litigation requires stronger factual foundations, more rigorous expert evidence and a deeper engagement with modern medical science. These cases collectively potentially mark a shift towards a more disciplined and analytically demanding approach to asbestos litigation.