Dilks v. Secretary of State for Energy and Climate Change [2026] EWHC 146 (KB), 30/1/26

The High Court dismissed the claimant’s mesothelioma claim because the witness evidence did not satisfy the burden on the claimant of showing that the deceased was probably exposed to asbestos at work. Relaxation of the test of causation in mesothelioma claims does not extend to proof of the fact of exposure.

Background  

The deceased worked as a mobile plant operator for the National Coal Board (NCB) between 1967 and 1988. He died from mesothelioma in January 2023. His nephew, the claimant, alleged that this was caused by exposure to asbestos whilst operating plant (various type of heavy vehicle; he mostly operated a vehicle known as a grader) on spoil heaps (mud, rock, and stone) at collieries in Derbyshire.  

Fact of exposure  

There was no direct evidence from the deceased concerning his exposure to asbestos. There was evidence from witnesses of fact on both sides (including colleagues, a manager and the claimant). The claimant’s case was that disposal of asbestos waste (such as asbestos cement sheets, lagging, and lagged pipes) occurred regularly on NCB spoil heaps, and because the deceased operated plant on them, he was probably exposed to asbestos dust generated by the vehicle crushing, compressing and compacting asbestos waste. The central issue was exposure:  whether the evidence was sufficient to find that the alleged exposure probably happened or - as the defendant (the NCB’s successor) argued – this would involve “too great a leap of faith.”  

The parties’ health and safety/occupational hygiene experts agreed that whether or not the deceased was exposed to asbestos was a matter of evidence for the court. 

Findings  

The judge considered the “thirteen axioms of fact finding” set out in Briggs v Drylined Homes [2023], including that that the burden of proof rests on the claimant and the standard to be applied is the balance of probabilities; and that, as here, in the absence of contemporaneous documents, greater weight will be placed on the inherent probability or improbability of witness’s accounts.  

The judge also considered Johnstone v Fawcett’s Garage [2025] in which the Court of Appeal rejected the proposition that the creator of the risk that a claimant develops mesothelioma must bear the consequences of evidential uncertainties. The special rule in respect of proving causation in Fairchild [i.e. material increase in risk] and approved in Sienkiewicz did not mean that the defendant must also bear the consequence of each element of evidential uncertainty.  

Reviewing the evidence of the witnesses of fact, the judge found that it did not permit him to draw inferences of exposure to asbestos at various collieries. For example, it was not probable that the exceptional use of graders at one particular colliery coincided with both disposal of asbestos waste and the deceased being the grader operator. They might have done -  but that was not sufficient to discharge the burden on the claimant.  

Because the claimant’s statement did not distinguish between what he was told by the deceased and what he was told by others, the judge was not able to attach any weight to his evidence about what the deceased told him; at least some of what he reported as having been told directly by the deceased was fresh information given to the claimant by the deceased’s colleagues at the funeral – and his statement omitted  to mention learning anything new from colleagues.  

The evidence of regular disposal of asbestos waste related to spoil heaps where the deceased did not operate a grader. In respect of probable disposal of asbestos waste on other spoil heaps there was no evidence as to timing or quantity. The judge dismissed the claim.  

Had the judge found that the deceased was probably exposed to asbestos dust, he would have found that exposure was in breach of duty. He made no findings on causation as that would have required a finding on the level of exposure. 

Comment  

Dilks shows that the relaxation in mesothelioma cases in respect of proving causation does not extend to proving the fact of exposure to asbestos. Before getting to causation (and breach), the claimant is still required to adduce evidence proving on the balance of probabilities that he or she was exposed to asbestos.  

In Dilks, it was not sufficient that the deceased died from mesothelioma, that the judge would have found the defendant in breach of duty, and that according to the claimants’ witnesses of fact exposure to asbestos may have occurred. Findings of fact are of course more difficult to appeal than findings on law.  

By implication, Dilks shows the importance of contemporaneous documentary evidence – of which in Dilks there was none. But the lack of documents rebutting the claimant’s allegation of exposure does not lead to an inference that exposure occurred.  

Dilks also provides guidance on the preparation of witness statements i.e. the importance (as required by the CPR) of setting out the source for any matters of information or belief, and explaining fully matters within the witness’s own knowledge.