Steven Dilks v Secretary of State for Energy and Climate Change

The Claimant in this case is the executor of Eldred Grocock deceased. Mr Grocock was born on 8 August 1939 and died on 5 January 2023. The cause of his death was a malignant mesothelioma, which he developed as a result of exposure to asbestos. It is the Claimant’s case that that exposure occurred during the course of the deceased’s work as a mobile plant operator for the National Coal Board (‘the Coal Board’). The Defendant is the successor in title to the Coal Board.

The deceased worked for the Coal Board between March 1967 and January 1988. He was based at Williamthorpe colliery (“Williamthorpe”). Williamthorpe had ceased to be a working colliery shortly after the deceased started. The site was turned into a storage site with repair shops and offices. Mobile plant was based there and deployed throughout the North Derbyshire Area. The deceased’s work took him therefore to other collieries in the Coal Board’s North Derbyshire Area which were still working.

One item of mobile plant was a machine known as a grader. This was what the deceased drove most of the time. It was used on spoil heaps, primarily to produce a secure and level surface for the dumper trucks and bulldozers. It had a blade like a snow plough blade in the middle and a bulldozer attachment at the front. On the smaller spoil heaps, where there were no bulldozers, graders were also used to push spoil and waste over the edge of the existing spoil heap to form the new layer of waste.

Paragraph 3 of the Particulars of Claim sets out the Claimant’s case as to the circumstances of the deceased’s exposure to asbestos dust during the course of his employment. It is pleaded that this happened in five ways,

Some important issues are now common ground. The deceased did not drive a dumper truck regularly. Asbestos waste formed a very small proportion of the overall loads taken to the spoil heaps. The loading and unloading of dumper trucks was done mechanically. Taken together these three matters make the deceased’s exposure to asbestos in the first or second pleaded way unlikely. There is also no evidence to support the proposition that he was exposed to asbestos whilst working in the vicinity of others. The Claimant’s focus has therefore been on the third way pleaded, that the deceased drove over asbestos waste and that crushed, compressed and compacted it. The deceased did not operate a bulldozer whilst he worked for the Coal Board. If he was exposed as pleaded, that would only have happened whilst he was operating a grader.

There is no direct evidence from the deceased concerning his exposure to asbestos and I am not invited to find that he was exposed on specific occasions. Rather, the Claimant’s case is that disposal of asbestos waste was a regular occurrence on the Coal Board’s spoil heaps, and because the deceased operated a grader on them, it is probable that he was exposed as the crushing, compressing and compacting would have generated asbestos dust in his cab. This therefore is a case where my findings on the issue of exposure are central and I turn to them before considering what implications they have for the issues of breach of duty, causation and quantum.

On behalf of the Claimant, I heard oral evidence from three of his colleagues, Mr Geoffrey Norton, a fitter/mechanic who had worked with the deceased at Williamthorpe from 1973, Mr Alan Crossley, another fitter/mechanic who had worked at Williamthorpe from 1976, and Mr John Bird, a fellow driver, who started work at Williamthorpe in 1983. They were all still there when the deceased retired in early 1988. I also heard from the Claimant himself. He is the deceased’s nephew and executor. Ms Deborah Reshad, a long-time family friend of the deceased, also gave evidence for the Claimant but her testimony related solely to quantum.

On behalf of the Defendant, I heard evidence from another of the deceased’s colleagues, Mr William Preston. He had worked with the deceased from 1970, so not long after he started. Mr Preston held various managerial roles during the course of the deceased’s employment. He was a deputy manager at Williamthorpe when the deceased retired and he ultimately became the manager there.

I also heard evidence from four other witnesses called on behalf of the Defendant, Mr Geoffrey Vardey, who worked in the South Nottinghamshire Area, Mr BryanGill, who worked in various Yorkshire Areas, Mr David Owen and Mr David Bishop who both worked in the North Nottinghamshire Area. The statement of Mr Brian Addy who worked in the North and South Yorkshire Areas was also served as hearsay evidence. Mr Preston apart, none of the Defendant’s witnesses knew the deceased or had worked in the North Derbyshire Area.

Mr Norton’s work as a fitter/mechanic brought him into contact with the deceased, both at Williamthorpe, when the deceased brought vehicles in for service or repair, and when Mr Norton himself went out to repair vehicles on site. He had come across the deceased at two collieries, Markham and Bolsover. Mr Norton thought that the deceased would also have worked at other collieries in the North Derbyshire Area but he had not seen him elsewhere.

Mr Norton gave evidence about the disposal of asbestos lagging and asbestos lagged pipes at Williamthorpe. They were dumped on the spoil heap, as were pieces of damaged corrugated sheeting, which also contained asbestos. Mr Norton accepted in cross-examination that the volume of such waste was small. He attempted to put a percentage figure on the amount of asbestos waste compared to spoil but this was clearly an exercise he had not been asked to do in advance and the figure he provided was not a meaningful one.

Mr Norton was able to give evidence about the circumstances whereby the asbestos waste was generated. Some boilers at Williamthorpe were dismantled after the pit was closed and the broken up parts were disposed of on the spoil heap. That waste included asbestos lagging. Separately, from time to time, bits of lagging on the remaining boilers and pipes broke off and, finally, small sections would be deliberately taken off for inspection purposes. Doing the best he could, Mr Norton thought both the latter events would happen on a monthly basis, not every week but ‘as and when’. The waste was placed in a barrow before being taken to a large waste area, separate from the bunkers which took the coal spoil. There it was loaded mechanically into a dumper truck before being taken to the spoil heap.

Mr Norton accepted the suggestion that there would have come a time when the lagging at Williamthorpe did not contain asbestos but that would not have been until the Coal Board had used up the asbestos mix it had, of which there was a considerable stock. Doing the best he could Mr Norton thought that happened after 15 years, so in the late 1980s.

Mr Norton recalled that waste taken to the spoil heap was dumped by the dumper trucks on the existing edge. It was then flattened and compressed by bulldozers and graders. The work was dusty. Whilst the cabs of the graders were some six feet above the ground, it was necessary to keep the windows open, particularly in hot weather. There was no meaningful attempt to reduce dust until the very end of his employment.

Mr Norton recalled the deceased driving dumper trucks at Williamthorpe but not often. He was one of the operators who was allowed to move plant on the public roads and, when back at Williamthorpe, he was prepared to help out if he had brought a vehicle there from another colliery and he was not in a rush to get back. This was not a regular occurrence.

Mr Crossley was another fitter based at Williamthorpe. He recalled that the deceased mainly drove a grader. Doing the best he could he saw the deceased around three times a year. He gave a similar description to Mr Norton of how the waste was deposited by dumper trucks. The trucks dumped the waste around 10 yards from the edge because if they got closer there was a risk they would go over the side. The graders then pushed the waste to the edge, drove over it and crushed it to make the ground flat.

Mr Crossley recalls asbestos waste (lagging and sheets) being dumped on spoil heaps. He particularly mentioned this happening at Markham Colliery, in large part because of an arrangement with Coalite, a chemical company next door, which was permitted to dispose of its waste on the Markham spoil heap. There had been an explosion at the Coalite plant in 1967 which generated a lot of waste. In paragraph 14 of his statement Mr Crossley said that the grader drivers, including the deceased, drove their graders over the waste, breaking it, crushing it and burying it. This was dusty work, particularly on hot days. The waste included asbestos. Although he referred to grader drivers including the deceased, it was clear to me from his statement and oral evidence that Mr Crossley was describing what he recalled grader drivers in general doing rather than giving evidence of occasions when he had seen the deceased engaged in this activity.

Mr Crossley worked at all the collieries in the North Derbyshire Area. He saw asbestos waste being dumped at Markham but did not mention in his statement any other collieries where this happened. In his oral evidence he confirmed what he had said in his statement but added that it did not just happen at Markham. He did not however name any other collieries. The regularity of asbestos being dumped at Markham was, Mr Crossley recalled, quite frequent. When asked to be more specific, he gave inconsistent estimates.

Mr Bird started work for the Coal Board in 1969 but did not commence as a driver at Williamthorpe until 1983 - towards the end of the deceased’s employment. He initially drove dumper trucks but he recalls that the deceased mainly drove a grader.

Mr Bird recalls coming across asbestos waste in the form of broken cement sheets, asbestos lagging and asbestos lagged pipes. As a dumper truck driver, he could not dump the waste at the edge of the spoil heap because there was a risk the truck would tip over.

Much of Mr Bird’s work was at Markham. Mr Bird recalled that the deceased did not usually work there because there was a limited need for graders, as bulldozers were used for the task of compacting the spoil. The main work of the grader was to clear and grade the roads so that they were flat. They would exceptionally compact or move the waste, for instance if the bulldozer was struggling or if it had broken down. The smaller spoil heaps did not have bulldozers. Mr Bird also recalled compacting and compressing being dusty work. Graders kept their cabs open both for ventilation and so they could see the contact point between their blades and the spoil.

Mr Bird recalls seeing pipes and lagging about once a week at Markham and seeing asbestos sheets more regularly. It was usually dealt with by a bulldozer, occasionally by a grader. The deceased did not work with Mr Bird at Markham. Mr Bird recalled that the deceased mainly worked at Renishaw colliery where there was no bulldozer. Mr Bird had been to Renishaw but had not seen asbestos there.

Mr Preston was a foreman and deputy manager during the time he worked with the deceased. He was able to provide more detailed evidence about how the Coal Board managed its mobile plant in the North Derbyshire Area. Machines and drivers would be hired to the collieries and deployed from Williamthorpe. The deceased usually operated a grader. He did not drive a bulldozer. The main function of graders was to provide a safe and secure road for the dumper trucks carrying the spoil, although they also cleared and crushed waste. The deceased was one of around six grader drivers. He would be allocated to one or two collieries on a regular basis. It was however possible that the collieries to which he was allocated changed over time. Mr Preston could not say what collieries the deceased had worked at.

Mr Preston would visit the different collieries in the North Derbyshire Area either weekly or fortnightly and, when he visited, he would frequently but not always go to the spoil heap.

Mr Preston stated that he considered it unlikely that the deceased or anyone else in the mobile plant operations department would have been involved in hand loading asbestos waste, although a loading shovel may have been used. He himself had not witnessed any operatives working with asbestos whilst driving their machines. Mr Preston however considered that a possibility. For instance, he considered it possible that steam boiler pipework and lagging such as had been present at a particular colliery, Pleasley, may have been disposed of as waste at the colliery spoil heap. That waste would have included asbestos. He confirmed that all sorts of waste was placed on the spoil heap at Markham in the aftermath of the explosion in 1967. He did not accept that asbestos waste was placed on the spoil heap at Williamthorpe, although he did not directly contradict the evidence of Mr Norton that it was. Overall, he considered it likely that collieries did dispose of asbestos on their spoil heaps. In his view however the collieries would have done it in a responsible, legitimate and in the least troublesome manner possible. He was asked about this in cross-examination and stated that that was because workers would not want to handle asbestos and would want to do it with the least effort to achieve their objective.

Mr Preston was clear, both in his oral evidence and in cross-examination, that non-spoil waste would have been put at the base of any ongoing layer with spoil placed on top of it. The reason for this was to avoid the machines getting tangled up with the waste, to avoid the risk of punctures and because it was easier.

Mr Norton had told me that asbestos would have formed a small proportion of the waste disposed of. Mr Preston confirmed that. He stated that 20,000 to 30,000 tons of spoil went on to the heaps every week.

Mr Preston agreed that the work was dusty and that spoil was not damped down with water until the 1980s.

The Defendant’s remaining witnesses were managers and engineers who were not from the North Derbyshire area. The Coal Board’s regions were largely self-contained and these witnesses could not assist with what happened in North Derbyshire and they were not involved in supervising mobile plant operations in their own Areas. They were of some background assistance in confirming that spoil was largely made up of mud, rock and stone, collectively referred to as dirt, in confirming that the operator of a grader would be some way off the ground and in confirming that knowledge of the dangers of this kind of exposure to asbestos did not permeate to the collieries before the 1980s.

None of the witnesses recalled any precautions being taken by drivers against exposure to dust, certainly in the earlier part of the deceased’s employment. Mr Crossley recalled a warning about the dangers of asbestos in the mid-1980s.

The Claimant is the deceased’s nephew. He was as a fireman. This work involved him being exposed to asbestos. He recalled discussing exposure with the deceased and the deceased telling him that he too had been exposed. At paragraphs 22 to 26 of his statement, the Claimant records that the deceased told him that he was based at one pit but sent to others, that he worked at Markham and Williamthorpe, that he drove dumper trucks and graders and that he came across asbestos sheeting and lagging which he would drive his grader across. The Claimant recalls the deceased telling him that this was very dusty work. The Claimant also knew that, earlier in his working life, the deceased had served in the army.

The Claimant was cross-examined by Mr Hogarth KC for the Defendant. He told Mr Hogarth that the information he had received from the deceased about asbestos was the product of conversations both whilst the deceased was in work and afterwards. He had not heard of mesothelioma before the deceased died. He did not recall a conversation about mesothelioma with the deceased’s doctor in December 2022. The deceased’s medical records indicate however that the Claimant was indeed told at that time that the deceased had mesothelioma. He was also taken to two notes from the coroner’s officer’s records where the Claimant’s recollection of the deceased’s work history is set out. Exposure to asbestos is not mentioned in those notes. The Claimant accepted that he had given that information but stated that he was simply providing a work history. He did not accept that it was odd that, if he and the deceased had discussed it, there was no record of asbestos exposure in those work histories.

The Claimant was finally taken by Mr Hogarth to an email dated 24 January 2023. This was sent by the Claimant to the coroner’s officer after the deceased’s funeral. In that email the Claimant set out what colleagues had told him at the funeral including that,

“He used a grading machine on the spoil heaps where discarded material such as asbestos would be broken up by the machine driving over it and the cab windows would be open in the summer months.”

The email continued with the Claimant saying that he had spoken to a colleague with whom the deceased had served in the paratroopers and they used a lot of explosives and ammunition which contained asbestos. Mr Hogarth KC suggested to the Claimant that the source of what was in his statement was not what he had been told by the deceased but rather what he had heard second-hand from the deceased’s colleagues at the funeral and that he was lying to get a claim off the ground. The Claimant did not accept this.

No documentary evidence relevant to the issue of deceased’s exposure was placed before me. The deceased’s Inland Revenue records show that, he had served in the forces and worked in the construction industry in the 1960s but there is no evidence about whether or not he was exposed to asbestos in any of his jobs. The deceased’s general practitioner records do not contain an account from him of his working life or his exposure to asbestos. Judging by his later medical records, after his diagnosis the deceased made a conscious choice to focus on the time remaining to him rather than on reflecting on why he had mesothelioma.

I had the written medical expert evidence of Dr Michael Beckles consultant physician to assist me. He provided two reports to the court, dated 16 January 2024 and 28 February 2024. He also responded to questions put to him by the Defendant. The questions were put on 13 March 2025 and answered on 11 April 2025.

In Dr Beckles’ opinion asbestos exposure caused the deceased’s mesothelioma. He pointed out that there is no threshold dose and often a long interval between exposure and presentation. He was reliant on witness evidence for his advice on causation. The evidence he had at the time of his first report suggested that the deceased was exposed to asbestos whilst working for the Coal Board. On that basis he advised that that employment was the cause of the mesothelioma. In his answers to the Defendant’s second and third questions, Dr Beckles confirmed that the issue of whether and in what circumstances the deceased was exposed to asbestos was a matter for the court and his conclusions would follow the factual findings. He pointed out that he had not had an opportunity to take a history from the deceased.

I heard oral evidence from Mr Chris Chambers, Health and Safety Practitioner and Dr Alan Jones, occupational hygienist. They both also gave written evidence in lengthy and wide-ranging reports and in two joint reports. In relation to the issue of exposure they also agreed (first joint report, 14 August 2025) that the issue of whether or not the deceased was exposed to asbestos was a matter of evidence for the court.

At the end of their oral evidence, I asked the experts to address the issue of whether it was realistic to expect that the deceased might have been exposed to asbestos dust in other employments. Mr Chambers advised that some exposure was possible but he could not say it was likely. Dr Jones considered some exposure to asbestos in the armed forces to be likely and exposure also likely if the deceased was engaged in demolition work. They agreed with the proposition that the deceased would have been exposed to asbestos in the natural environment but disagreed as to the level of that exposure. They both accepted that the exercise of estimating the level of background exposure was a difficult one. In the result, their estimates of background exposure were very different.

Mr Chambers and Dr Jones gave oral evidence “back to back”, after the lay witnesses. Mr Chambers accepted in cross-examination that not all of the asbestos waste tipped may have been crushed and compacted, some may simply have gone over the edge. He also agreed that the majority of what was tipped was spoil. He did not agree with the proposition that, even if a grader drove over asbestos waste, the driver’s exposure would not be significant. He agreed that the asbestos cement sheets would probably have contained chrysotile, the least hazardous form of asbestos but asbestos lagging would have contained amphibole, a combination of amosite and crocidolite. We now know that all asbestos is hazardous but amosite is 100 times more hazardous than chrysotile and crocidolite is 5 times more hazardous than amosite.

Dr Jones offered the opinion that any exposure to asbestos by a grader operator would not have been significant. Unlike Mr Chambers, he had not supported that opinion in his report by reference to calculations, on the basis that it was too uncertain. Neither had he challenged the opinion of Mr Chambers when he had an opportunity to do so. He accepted that with hindsight that is something he should have done. Dr Jones had based his opinion, in part at any rate, on the assumption that the court would accept the evidence of Mr Preston as to the way in which any asbestos waste was tipped because to him (Dr Jones) it sounded reasonable and sensible. It was put to him that in adopting that approach he was acting as an advocate rather than an independent witness. He said that he did not believe that was so but he took the point. He would have assisted the court more if he had looked at the Claimant’s witness evidence more carefully.

Mr Chambers pointed out that, for the majority of the deceased’s employment, there was clear guidance that asbestos waste should be double bagged or sent to a specialist tip for disposal.

Dr Jones appeared surprised by the evidence of the lay witnesses that asbestos waste was transported in a wheelbarrow without precautions being taken and that it was disposed of on spoil heaps. He was also surprised that the Defendant’s witnesses who were managers, were unaware of any codes of practices before the late 1980s. He accepted that there may have been a blind spot in the Coal Board’s approach to the issue.

On behalf of the Claimant, Mr Phillips KC accepted that the evidence of exposure was not complete but submitted that this was not an unusual position in such cases. He urged me not to shy away from drawing inferences. He maintained, and I accept, that the colleagues he had called and Mr Preston should be seen as independent witnesses. He submitted, and again I accept, that the absence of documentation is unfortunate but does not positively undermine the Claimant’s case. In so far as Mr Preston’s evidence differed from that of the Claimant’s witnesses, I should prefer their evidence as Mr Preston was not on tips as frequently as they were.

At the heart of the Claimant’s case was the proposition that the witnesses had testified to the disposal of asbestos lagging and asbestos sheets on spoil heaps in the North Derbyshire Area. Even though he could not take me either to specific evidence of the deceased’s exposure or to evidence linking the deceased to specific pits where the evidence showed that graders crushed compressed and compacted asbestos waste, it did happen in the North Derbyshire Area and it would not be an enormous leap for me to find that the deceased must have driven his grader over such waste at the pits where he worked. If he did that, he would have been exposed to asbestos. I did not need to make a finding as to the number of occasions on which this happened but it was likely to have been many times.

Mr Phillips KC placed emphasis on Mr Crossley’s evidence that the deceased worked at Markham Colliery and his further evidence, at paragraph 14 of his statement, which I summarised earlier in this judgment at paragraph 17. Mr Phillips also placed emphasis on the evidence that the collieries at which the deceased worked would have changed. He submitted it created a picture of him working throughout the coalfields in the North Derbyshire Area and he invited me to find that tipping of asbestos waste was regular and widespread. Having made those findings, it did not require a significant “judicial leap of faith” to infer that the deceased was exposed to asbestos.

Mr Chambers’ calculations as to the level of exposure were, of necessity, crude because of the difficulty of the exercise but they were to be preferred to Dr Jones’ more recent calculations, the assumptions for which were uniformly unfavourable to the Claimant and favourable to the Defendant.

Mr Hogarth KC, on behalf of the Defendant, submitted that the Claimant’s case on exposure involved multiple leaps of faith. He reminded me that it is for the Claimant to establish that the deceased was exposed to asbestos and exposed to a sufficient extent to amount to a breach of duty. It is not enough for the Claimant to show that the deceased might have been exposed; the Claimant must show that he probably was.

Mr Hogarth KC invited me to find that any occasion on which asbestos waste would have been driven over by a grader would have been highly exceptional. He reminded me that the evidence was that the crushing and compacting at Markham, where there was evidence of asbestos waste being deposited, was done by a bulldozer. The Claimant had not adduced evidence that the deceased worked at a colliery where asbestos waste was disposed of.

In Briggs v Drylined Homes [2023] EWHC 382 Dias J (then sitting as a Deputy High Court Judge) had to consider whether the deceased had been exposed to asbestos during the course of his employment in the construction industry during the 1970s. At paragraph 14 of his judgment, he set out thirteen axioms of fact finding which he had derived from his review of the authorities and which he had found helpful. They commence with the fact that the burden rests exclusively on the person making the claim and that the standard to be applied is the conventional civil standard, the balance of probabilities. Each piece of available evidence must be reviewed and considered in the context of all the other evidence.

At sub-paragraphs 14(6) and 14(7) of his judgment in Briggs, Dias J referred to the binary nature of the task of a fact-finder,

“(6)

The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (Re H at [32], per Lady Hale);

(7)

The law invokes a binary system of truth values (Re H at [2], per Lord Hoffmann):

“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

In this case the question I must address is whether the evidence I accept is sufficient to prove that the deceased’s exposure to asbestos, (something of which I have no direct evidence), probably happened or whether the evidence does not take that beyond a possibility.

At sub-paragraph 14(10) of his judgment in Briggs Dias J. addressed the situation where there are no contemporary documents which assist.

“(10)

Contemporary documents are “always of the utmost importance” (Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431, per Lord Pearce),but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts:”

“It is necessary to bear in mind, however, that this is not one of those cases in which the accounts given by the witnesses can be tested by reference to a body of contemporaneous documents. As a result the judge was forced to rely heavily on his assessment of the witnesses and the inherent plausibility or implausibility of their accounts.” (Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at [80], per Moore-Bick LJ);

And to same effect:

“Faced with documentary lacunae of this nature, the judge has little choice but to fall back on considerations such as the overall plausibility of the evidence” (Natwest Markets Plc v Bilta (UK) Ltd [2021] EWCA Civ 680 at [50], per Asplin, Andrews and Birss LJJ, jointly).

This is such a case.

In his submissions to me Mr Phillips KC reminded me that Briggs was factually a very different case. I agree. I have nonetheless found Dias J’s summary of the principles guiding his approach helpful, particularly those to which I have referred above.

I have also been assisted by consideration of the discussion at paragraphs 126 to 132 of the judgment of the Court of Appeal in Johnstone v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467. In that case the Claimant’s widower claimed that she had been exposed to asbestos during the 1980s in the course of her employment in the office of a garage and that this had led her to develop mesothelioma. The garage admitted that there were unsafe practices in use in the garage workshop but denied that those unsafe practices caused her mesothelioma. The bulk of the evidence in that case was expert evidence. Evidence was adduced from three pairs of experts (i) Occupational Hygienists (including Mr Chambers who gave evidence before me); (ii) Epidemiologists and (iii) Chest physicians. There was also lay evidence in the form of a statement from a mechanic in the workshop. With the assistance of the expert evidence, the judge at first instance (His Honour Judge Simon, sitting as a deputy high court judge) calculated the exposure to asbestos of the mechanic based on his statement. He then used that calculation to make findings as to the exposure of the deceased and the consequent increase in her risk of mesothelioma.

The exercise described at paragraph 53 above pre-supposes findings on exposure and it is not of relevance to the issue before me. However, the Court of Appeal was also asked to consider the proposition that the creator of the risk of harm must bear the consequences of evidential uncertainties. The context in relation to which this argument was advanced to the Court of Appeal was a decision by the judge that the asbestos in the workshop was chrysotile even though there may have been more toxic types of asbestos mixed in it. However, the proposition contended for was rejected by the court at paragraphs 131 and 132,

“131.

We find nothing in Fairchild, or the endorsement of it in Sienkowicz, to suggest that in applying the special rule, the tortfeasor must also bear the consequence of each element of evidential uncertainty in the case. As Lord Nicholls noted in Fairchild (at [43]) considerable restraint is called for in relaxing the threshold “but for” test of causal connection, and that such a relaxation is not intended “where a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him.” It certainly does not result in a reversal of the burden of proof: [110], per Lord Hutton.”

The appellant also contended that this was part of a broader principle of law, found to apply in many contexts. Mr Swodoba referred us in this respect to Drake v Harbour [2008] EWCA Civ 25. In that case, Longmore LJ said, at [15], that where negligence was established, and the damage which occurred was of the sort that might be expected to occur from the nature of the work the defendant carried out, the court should “be prepared to take a reasonably robust approach to causation”. At [28], Toulson LJ said much the same thing, describing the approach, not as a principle of law, but “a matter of applying common sense”. The other cases cited to us (Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 WLR 597, per Lord Reed at [121]; Roadrunner v Dean [2003] EWCA Civ 1816, per Chadwick LJ at [29]; and Phethean-Hubble v Coles [2012] EWCA Civ 349, per Longmore LJ at [90]) were similarly examples of a court doing no more than adopting a common-sense approach to causation. There is no support in them for the more adventurous proposition of law for which the appellant contends in this case.

The judgment in Johnstone recognises the difficulty facedby persons in the Claimant’s position. There is no direct evidence from the deceased as to his exposure and there is no direct evidence from anyone who witnessed him being exposed to asbestos dust. The question I must address is whether the evidence I have heard is sufficient for me to find that the exposure for which the Claimant contends probably happened or whether, as the Defendant argues, that involves too great a leap of faith. I am reminded that the difficulty caused by evidential uncertainty rests on the party with the burden of proof. In relation to exposure that is the Claimant.

All the lay witnesses who gave evidence to me were trying to assist the court. Mr Norton, Mr Bird and Mr Preston were impressive and careful witnesses, who made it clear when they could not remember, which gave greater weight to what they could remember. Mr Crossley was equally keen to assist but it was clear that, at certain points, his evidence went beyond his recollection and he then attempted to fill in the gaps. It is no fault of the remainder of the Defendant’s witnesses that I did not find their evidence as helpful. It was not sufficiently relevant.

I accept Mr Norton’s evidence that asbestos waste was disposed of on the tip at Williamthorpe, in particular, after it had closed down, when a boiler was demolished but also on other occasions as he described. However the deceased did not operate a grader a Williamthorpe. He operated a dumper truck from time to time when he had delivered other vehicles, was not in a hurry and those at Williamthorpe needed the help. For the avoidance of doubt, as I do not understand it to be the way the Claimant puts his case, I do not find that the evidence permits me to draw the inference that he probably drove a dumper truck containing asbestos waste at Williamthorpe.

I accept the evidence of Mr Bird and Mr Crossley that asbestos waste was disposed of on the tip at Markham. I also accept that a greater quantity of asbestos waste was disposed of here because of the waste brought in from the Coalite Factory. The deceased did not work at Markham whilst Mr Bird was working there but I find it probable he was there before Mr Bird’s time. I cannot make any further findings as to when or for how long he was there. I do not find that the deceased was probably exposed to asbestos at Markham because I accept the evidence of Mr Bird that the crushing and compacting at Markham was done by the bulldozers not the graders. The evidence was that the use of graders to crush waste at Markham was exceptional. I do not find it probable that those occasions coincided both with the disposal of asbestos waste and with the deceased being the grader operator. They might have done but that is not sufficient for me to find that the burden on the Claimant is discharged.

I am unable to accept the evidence of Mr Crossley that he recalls asbestos waste being disposed on tips other than Markham. Paragraph 21 of his statement, dated 7 July 2023, reads,

“I did work at Markham, Renishaw and Ireland and all North Derbyshire collieries. I saw asbestos waste being dumped at Markham.”

I interpret that as evidence that he only saw asbestos waste being dumped at Markham. I do not accept his oral evidence that it was not just Markham where asbestos waste was dumped. This is for two reasons. First, he would have said that in his statement if it were so and second I found his recollection as to detail unreliable - he accepted in cross-examination that he had over-stated the amount of lagging put on the tip at Markham.

I do not agree the suggestion put to the Claimant by Mr Hogarth KC that he was lying to me. I have however not been able to attach any weight to his evidence about what the deceased told him. That is because his statement does not distinguish between what he was told by the deceased and what he was told by others. It is clear from the email of 24 January 2023, which I have quoted above, that some at least of what he has reported as having been told directly by the deceased was, in fact, fresh information given to the Claimant by the deceased’s colleagues at the funeral. The Claimant’s statement does not mention learning anything new from colleagues. That is a material omission and it has led me to the conclusion that the Claimant cannot now distinguish between what he was told by the deceased and what he picked up elsewhere.

The evidence of regular disposal of asbestos waste relates to spoil heaps where the deceased did not operate a grader. I accept the general proposition that it is probable that asbestos waste was also disposed of on other spoil heaps in the North Derbyshire Area but, other than the uncontroversial proposition that the amounts disposed of were comparatively small, there is no evidence as to the timing or quantity of such disposal and the evidence does not permit me to find that the deceased was probably operating a grader on these other spoil heaps at the material time so that he drove over asbestos waste to compact, compress and crush it. He might have done but the Claimant has failed to discharge the burden upon him to show that he probably did.

My findings on exposure are sufficient for me to dismiss the Claimant’s claim. I therefore only deal shortly with the other matters at issue between the parties. I turn first to breach of duty. The evidence I heard was that no precautions were taken when disposing of the asbestos waste. The Asbestos Research Council’s Recommended Code of Practice dated September 1969 contained guidance about tipping practice for the disposal of asbestos waste. It should be disposed in such a way that no dust was emitted into the air during transport, or in the act of tipping, or subsequently. Mr Hogarth KC submitted that the amount of asbestos fibres generated was probably small and below the levels capable of being recorded at the time. That in my judgment does not assist the Defendant. The Coal Board did not comply with the manner of disposal specified in the Code of Practice. That gave rise to a significant risk of injury to those crushing compressing and compacting asbestos waste. It was a risk about which the Coal Board knew or ought to have known as a result of the Asbestos Research Council’s Code of Practice. The steps to prevent it were straightforward. The waste should have been bagged and should not have been driven over. Had I found that the deceased was probably exposed to asbestos dust, I would have found that exposure to be in breach of duty.

I am not able to make findings on causation as that would require a finding on the level of exposure.

There was one issue with regard to quantum which was left for me to determine, namely the level of general damages. Mr Phillips KC relies on the fact that the uncontested medical evidence is that the deceased’s relevant symptoms started 2.5 years before death, that the deceased required increased assistance from the summer of 2021, albeit that he accepted that his symptoms were not severe until two months or so before death. His figure is £114,000. Mr Hogarth KC points to the absence of relevant complaint in the deceased’s medical records until September 2022, a little under 6 months before his death. He contends for a figure in the region of £90,000 to £95,000. I bear in mind that the deceased was aged 83 when he died. The expert evidence of Dr Beckles is that, but for his mesothelioma, he would have lived a further nine years. The deceased had other health issues and I do not find that he was unduly troubled by relevant symptoms until around six months prior to his death. Those symptoms became worse in his final two months. Taking all these matters into account along with the effect of inflation, my figure for pain, suffering and loss of amenity would have been £100,000. That figure does not take interest into account.

For the reasons set out above I give judgment for the Defendant. Can I thank counsel for their assistance.