A more rigorous approach to Asbestos?

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 were 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.