Steven Dilks v Secretary of State for Energy and Climate Change

In an asbestos-exposure claim, the claimant must prove on the balance of probabilities that the deceased was exposed to asbestos in the pleaded circumstances. Evidence showing that exposure might have occurred is insufficient. The court must decide the issue on a binary basis and cannot bridge evidential gaps by an unjustified inference. The burden of proof remains on the claimant, including where the deceased cannot give evidence and contemporary documents are unavailable. A common-sense or robust approach to causation does not reverse or relax that burden at the exposure stage. Where asbestos waste was disposed of without precautions contrary to applicable guidance, exposure while crushing or compacting it would constitute a breach of duty. However, breach and causation cannot establish liability unless probable exposure is first proved.

The claimant, as executor of Eldred Grocock’s estate, claimed damages from the Secretary of State as successor to the National Coal Board. Mr Grocock developed and died from malignant mesothelioma after working as a mobile plant operator in the North Derbyshire coalfield between 1967 and 1988. The pleaded case focused on exposure allegedly caused when he drove a grader over asbestos waste on spoil heaps.

The court considered whether the evidence established probable exposure, and, if so, breach of duty, causation and quantum. The central issue was whether the evidence took the alleged exposure beyond possibility and established it on the balance of probabilities.

1. Claim dismissed. Judgment was given for the Defendant because the Claimant failed to prove that the deceased was probably exposed to asbestos in the pleaded circumstances.
2. The burden rested exclusively on the Claimant. Applying the approach summarised in Briggs v Drylined Homes [2023] EWHC 382, the court had to decide whether the alleged exposure happened. There was no permissible intermediate finding that it might have happened. The absence of contemporary documents required assessment of inherent probability and witness reliability, but did not lessen the burden of proof.
3. The court accepted evidence that asbestos waste was disposed of at Williamthorpe and Markham. It nevertheless found that the deceased did not operate a grader at Williamthorpe, and that crushing and compacting at Markham was ordinarily undertaken by bulldozers. The possibility that the deceased had driven a grader over asbestos waste at another spoil heap was insufficient. The Claimant had not shown that this probably occurred at a material time.
4. The court rejected the submission that evidential uncertainty should be borne by the creator of the risk. The discussion in Johnstone v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467 confirmed that the special causation rule did not reverse the burden of proof, and that a robust common-sense approach to causation did not create the broader principle advanced by the Claimant.
5. Had probable exposure been established, the court would have found breach of duty. The Coal Board failed to follow the Asbestos Research Council’s Recommended Code of Practice concerning disposal of asbestos waste. The waste should have been bagged and not driven over. The court could not determine causation without a finding as to the level of exposure. It assessed general damages at £100,000 as an alternative quantum finding.