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Inchoate exposure? Lessons from Dilks for asbestos practitioners

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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.

House of Lords amendment to Terminally Ill Adults (End of Life) Bill following concerns raised for victims of occupational diseases

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As the House of Lords debates the Terminally Ill Adults (End of Life) Bill, Michael Rawlinson KC and David Green of 12KBW were personally credited for their work on the interaction between the proposed system of assisted dying, and existing Fatal Accidents Act legislation for victims of industrial diseases.

The House of Lords is currently considering a large number of proposed amendments to the Bill, introduced by Kim Leadbetter MP in the House of Commons in 2024.

But the Bill takes no account of how the Fatal Accidents Act 1976 allows the dependants of deceased victims – for example, the families of patients with mesothelioma – to claim compensation. Claims can only be brought “if death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages” section 1(1). If the Bill passes, and a mesothelioma victim qualifies for and chooses an assisted death, their death would at the least, arguably, not be “caused by” any negligence or breach of duty: it would be caused by their choice of a legal assisted death. Additionally, even if causation could still be laid at the door of the party which caused the exposure, the case of Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 could equally arguably require the application of a discount for contributory negligence.

In moving an amendment to the Bill in the Lords on 30 January 2026, Lord (Mark) Harper said:

“[The amendments] are responding to concerns raised by David Green, a barrister specialising in industrial disease cases, and Michael Rawlinson KC, who wrote to a number of Peers, alerting us to the fact that the current drafting of the Bill can negatively affect some victims of occupational diseases. […] If victims of occupational diseases opt for an assisted suicide, their dependants, under my reading of it, would probably lose their right to sue whoever caused their disease under the Fatal Accidents Act 1976, unless this Bill specifically provided otherwise, which it does not currently”.

Lord Harper pointed towards the scale of the potential problem, and that mesothelioma deaths alone currently outnumber fatal road traffic accidents (2,218 compared to 1,624 in 2023).

The amendment secured cross party support from Lords Harper and Sandhurst KC (Conservative), Carlile of Berriew (Liberal Democrat), and Hendy KC (Labour).

Lord Falconer, the Bill’s promoter in the Lords, replied that the point was of “considerable importance” and that victims “should not lose that right as a result of taking an assisted death”, and proposed a review of the effects of the Bill on the operation of the Fatal Accidents Act before the Bill, if passed, comes into force.

Michael and David continue to engage with parliamentarians in support of this essential issue for the future of the legal system’s procedure for properly compensating victims of fatal occupational diseases.

The full debate can be viewed online at Parliament.tv (beginning at 15:16:27), and is reported in Hansard (HL Deb 30 January 2026, Vol 852, Col 1242ff).

Low asbestos exposure: the Court of Appeal delivers judgment in Johnstone

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Author: Rachit Buch, 12KBW

Steven Snowden KC, John-Paul Swoboda KC and Helen Waller of 12KBW acted for the appellants in Alexander Johnstone (Personal Representative of the Estate of Elaine Johnstone, Deceased) and Fawcett’s Garage (Newbury) Limited.

The Court of Appeal has handed down judgment in this case addressing the material increase in risk of contracting mesothelioma.

Elaine Johnstone was exposed to asbestos while working at Fawcett’s Garage over a period of around 7.5 years. She contracted malignant mesothelioma in 2018 and, sadly, passed away in 2019.

At first instance, H.H.J. Simon, sitting as a High Court Judge, found that her exposure to asbestos was at such low levels of chrysotile that the risk of Mrs Johnstone contracting mesothelioma had not been materially increased by the admitted breaches of duty.

The appeal, brought by Mr Johnstone, was dismissed.

First instance decision

H.H.J. Simon found that:

  1. The Garage’s mechanic (who provided the only factual evidence relevant to exposure, read at trial) was exposed to around 1.0 fibres per ml of air per year (fb/ml-y) of chrysotile asbestos.
  2. Mrs Johnstone’s exposure was around 0.001 – 0.002 f/ml-y as she worked primarily in an office, across the yard from the mechanic’s bay.
  3. Given background levels of asbestos, this exposure increased the risk of contracting mesothelioma by “0.1% or less”, which was not a material increase.

Appeal

There were five grounds of appeal; four of which concerned the way in which H.H.J. Simon calculated the increase in risk of mesothelioma; one argued that adverse inferences from the failure to obtain and keep air monitoring records should have led to the claimant’s expert evidence on dose being accepted.

The Garage also submitted a Respondent’s Notice which sought to support the Judge’s decision by reference to the approach in Bannister v Freemans Plc [2020] EWHC 1256 (QB).

In a joint judgment, Coulson, Nicola Davies and Zacaroli LJJ’s held:

  1. There was no error in H.H.J. Simon’s rejection of the adverse inference argument. There was insufficient evidence that the obligation applied; in any event, adverse inferences cannot require a judge to ignore factual findings properly made. In this case, the Court was not balancing opposing witnesses (one side having been hampered by another’s failure to provide relevant evidence or documents) but was analysing uncontested factual evidence with the help of expert evidence.
  2. The judge was entitled to use the ‘direct risk assessment’ approach on the evidence heard, extrapolating the risk of mesothelioma from occupational vs background risk, from the Hodgson & Darnton study. The evidence of the epidemiologist called on behalf of the claimant (Prof. Norrie), in context, was not as dismissive as suggested on appeal.
  3. The Judge’s calculation of the background risk contained an error but this did not affect the overall conclusion that increase was ‘less than 0.1%’. The court should not take the most favourable part of the ranges of occupational and background risk to arrive at the figure for increase.
  4. There was no error of law in accepting the direct risk assessment approach. The caution about use of statistics in Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10 applied to cases decided on ordinary ‘but for’ principles of causation; and the defendant was not required to bear all consequences of evidential difficulties and uncertainties. The Judge’s decisions on relative risk were open to him.
  5. The judge did decide to accept the defendant’s approach to risk; there was no failure to make a decision or provide reasons.

Comment

At the heart of the appeal was the judge’s assessment of the increase in risk of mesothelioma caused by the low dose of exposure.

The claimant had argued that occupational exposure should be compared to background or environmental exposure and if it was a more than minimal increase, a material increase in the risk would be established. This was referred to as the ‘exposure/risk approach’ on appeal.

The defendant had argued that the Hodgson & Darnton model could be used, with evidence from Peto and Rake on the background risk of mesothelioma, to assess the risk of contracting mesothelioma at various levels of exposure.

It also sought to support the assessment of risk approved in Bannister – that a material increase in risk is one which an appropriately qualified doctor would regard as medically significant (referred to as the ‘absolute risk approach’).

The significant consequences of the appeal decision are:

  1. Direct risk assessment, and reliance on Hodgson & Darnton, is a permissible method of evaluating material increase in risk of mesothelioma in low exposure cases. The Court of Appeal found there was no error in principle or in assessing the evidence produced in the Judge’s decision.
  2. The Court of Appeal was explicit in stating that the appeal “is not about deciding whether the direct risk assessment approach is, generally, a valid and appropriate method.” The appeal was concerned with the Judge’s decision and its validity.
  3. In litigating cases involving low dose exposure, it will still be open to claimants to argue that material increase in risk is established using an analysis of exposure and risk or to challenge the use of Hodgson & Darnton. They will have to assess the risks of doing so in light of support for direct risk assessment provided in Johnstone.
  4. The Court of Appeal did, however, rule out use of the absolute risk approach. This delegates assessment of materiality to a medical expert (as argued by Mike Rawlinson KC of 12KBW here shortly after Bannister was decided). The example given in the judgment is an increase from a 0.1 in 100,000 chance of contracting mesothelioma to 0.9 in 100,000 by tortious exposure. This would be a nine-fold increase but still considered a medically insignificant chance overall. Unequivocally, the conclusion was that “we do not accept the absolute risk approach is appropriate in cases where the court is required to assess the material increase in risk of a claimant contracting mesothelioma.”
  5. Unlike the decision on the appeal grounds (explicitly phrased as not determining the validity of the approach to causation), the decision on the Respondent’s Notice is in terms that apply to all mesothelioma claims and bind first instance Courts.