Author: John-Paul Swoboda KC, 12KBW
A certain type of asbestos case is described and understood as a ‘low exposure case’. That heuristic is dangerously ambiguous (how low counts as low?) and amalgamates different categories of asbestos cases together. For example, there is the disputed fact of exposure case (was it even asbestos?) which might better be described as the ‘no exposure?’ asbestos case. There is the type of case where the alleged dose is so low that it is alleged that the exposure is de minimis – ‘the de minimis dose? case’ – and there is the type of case where the evidence is alleged to be lacking in sufficient cogency that no proper finding of fact can be made – the ‘inchoate exposure case’.
Dilkes, a fatal mesothelioma claim, would, I think, fall within the ‘inchoate exposure?’ type of case. Christopher Kennedy KC (sitting as Deputy High Court Judge) held that the Claimant’s evidence was insufficient to discharge the burden of proof. Mr Eldred Grocock had worked for the coal board between March 1967 and January 1988. The key issues were (i) whether Mr Grocock, whilst working at various collieries in North Derbyshire, had driven over asbestos waste, including asbestos cement sheets, asbestos lagging and asbestos pipes in a dumper truck; and (ii) whether this exposure had materially increased the risk of him contracting mesothelioma.
Somewhat unusually for a mesothelioma case there was an abundance of liability witnesses; four for the Claimant and six for the Defendant (including one served as hearsay evidence). One might have thought with such a plethora of witnesses there would be good cogency of evidence in respect of the pleaded case. The Claimant argued there was sufficient evidence as to the state of affairs in the collieries at the material times that the court could infer that Eldred Grocock had driven over asbestos materials causing the release of asbestos fibres. The Defendant argued that involved too many “leaps of faith”.
The learned judge turned to Briggs v Drylined Homes [2023] EWHC 382 where Dias J (then a Deputy High Court Judge) set out thirteen axioms of fact finding as well as noting that the Court of Appeal in Johnstone v Fawcett’s Garage [2025] EWCA 467 rejected the argument that the tortfeasor must bear the consequence of each element of evidential uncertainty; the burden was on the Claimant. In practice, in the absence of contemporary documents, conflicting accounts were to be determined by inherent probability or plausibility.
Although the judge felt he was able to conclude that Mr Grocock had worked in one of the locations where there was evidence that asbestos had been discarded (thanks to the evidence of one Mr Bird) he could not make any particular findings as to when or for how long Mr Grocock was there (because of an absence of evidence). It was, the judge found, improbable that Mr Grocock was driving a ‘grader’ (a type of vehicle) over asbestos in the location in question because the evidence suggested that the crushing and compacting was done by bulldozers and only exceptionally by graders. It would be too much of a coincidence to assume when he was driving a grader not only was he crushing and compacting (an exceptional event) but that it would also be on the unusual occasion where asbestos was present in the spoil. The burden of proof had not been discharged. The evidence was inchoate.
The judge did go on to find that the working practices which he found to have occurred were in breach of duty but he could make no finding on causation because the evidence as to exposure was too inchoate to establish exposure.
What might practitioners take from this case? Whilst recognising the difficulty in marshalling evidence from 30 to 50 years ago, the Courts still expect the evidence to reach a threshold of cogency. Heroic findings of fact will not be made to overcome inchoate evidence.
There is one sentence in this judgment which may be misunderstood if taken out of context. At §63, The judge stated “I am not able to make findings on causation as that would require a finding on the level of exposure.” If interpreted as meaning a specific measurement of duration is necessary to determine causation this sentence would be contrary to the Court of Appeal’s decision in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189 where Maurice Kay LJ (with whom Hooper and Tuckey LJJ agreed) stated:
“For the claim to succeed, the judge needed to be satisfied that the extent and duration of the exposure had constituted a material increase in the risk to the Deceased of contracting mesothelioma. No specific measurement of the duration is necessary and the Recorder was right to resist the invitation to fix one. Exposure that would fall within the de minimis formula would be insufficient.”
However, in my opinion, the better interpretation of §63 in Dilkes is that the judge was doing no more than saying that without the Claimant discharging the burden of proof in respect of the alleged asbestos exposure no finding on causation could, as a matter of logic, be made.
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