Back to school, back to basics: Howell follows Dilks on proving asbestos exposure

In Howell v (1) Pile Construction (Southern) Ltd (formerly CWL Pile Ltd) and (2) Zurich Insurance Company Limited [2026] EWHC 949 (KB), handed down on 24 April 2026, the Court dismissed a claim for damages arising from a diagnosis of epithelioid malignant mesothelioma on the grounds that the Claimant had failed to prove the alleged exposure to asbestos  on the balance of probabilities. The Court’s reasoning echoes that in the earlier case of Dilks v Secretary of State for Energy Security and Net Zero [2026] EWHC 178 (KB), in which it was also found that the Claimant had failed to discharge the burden of proof. 

Facts

The Claimant, aged 71, was diagnosed with mesothelioma in February 2024. Between leaving school and polytechnic he had four part-time labouring jobs, one of which was with the First Defendant in the 1972 tax year. The First Defendant was dissolved in 1986, and the Second Defendant accepted it was the relevant insurer. 

Allegations

The Claimant's case was that he worked for approximately 4-5 weeks handling asbestos sheets at a school he believed to be Great Ballard School in Eartham, West Sussex, during building works on a school hall with a stage. He alleged that he handled dusty asbestos sheets, was present during cutting operations, and swept up dust without protective equipment. It was conceded that if the factual case on exposure was established, the First Defendant was in breach of duty, and the Claimant was entitled to recover damages from the Second Defendant. Quantum was agreed. 

Evidence

There were no contemporaneous documents and no witnesses who could give contemporaneous evidence on the central factual dispute. The evidence fell into three categories: i) the Claimant's recollections; ii) the results of investigations at Great Ballard School; and iii) expert evidence as to the inherent likelihood of the Claimant’s account being accurate. 

At an earlier Commission Hearing, the Claimant gave evidence that a fellow workmen told him the sheets were asbestos, that the material was being used for fireproofing, that broken pieces were used as a food heating plate, and that the dust on his hands had a distinctive smell. No other witnesses of fact were called in support of the exposure allegations.

Evidence was adduced from a director of the school, who produced a 2004–2005 asbestos survey showing no asbestos materials were identified in the hall and confirmed that no records existed of work by the First Defendant or of asbestos removal. Statements from the school's owner and a builder who extended the hall in the 1990s were read but neither addressed whether there had been a stage in the hall before the 1990s extension, and neither appeared to have been asked that question.

Expert evidence was given by Mr Wallis (forensic scientist) for the Claimant and Ms Tierney (biochemist) for the Defendant. Mr Wallis opined that if the boards were being used for fireproofing they would have been asbestos-containing. Ms Tierney gave evidence that plasterboard was a cheaper, fire-resistant alternative available for decades prior to 1972 and that there was no real need to fire-proof a small, single-storey school building. 

Submissions

The Defendant raised a preliminary point based on Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041, arguing that the claim should be dismissed because the Claimant had shifted his position on the school's identity; the judge declined to dismiss on this basis but found the evolution of the case relevant to credibility.

For the Claimant, it was submitted that it was not necessary to identify the precise school, provided the factual case on exposure was otherwise established, and that expert evidence supported the account as inherently probable. For the Defendant, it was submitted that the case must be decided on the basis on which it was investigated, that there would be real unfairness if it proceeded otherwise, and reliance was placed on the absence of asbestos at Great Ballard School and inconsistencies in the Claimant's recollections. 

Findings

The Court identified several fatal difficulties with the Claimant's case. First, the Claimant's consistent evidence that asbestos dust had a "distinctive smell" could not be correct, as the experts agreed that asbestos has no distinctive smell; second, both experts agreed after cross-examination that material used "over a flame as a food heating plate", as described by the Claimant, would not be asbestos insulating board.

The Court found no evidential basis for concluding that asbestos was installed at Great Ballard School in 1972 and removed before the 2004–2005 survey. Ms Tierney found none of the physical indicators she would expect had asbestos removal work been carried out. The evidence of the school’s owner and the extension builder did not establish that there was no stage in the hall before the 1990s extension, and the Claimant had failed to seek clarification on this point or to identify any alternative school. 

The Court also found the Claimant's recollections insufficiently consistent, noting significant changes from his first signed account in DWP forms form regarding cutting sheets, school identity, timing and the 1976 employment with another employer, FW Brackett (not party to proceedings). In respect of FW Brackett, the Court could not be satisfied the Claimant was not exposed to asbestos during that later employment, given the Claimant's own repeated statements about the unreliability of his memory of those events. 

Finally, the expert evidence did not establish that work on a school theatre would more likely than not involve fire-proofing materials, given the absence of such material at the school investigated and Ms Tierney's evidence about the differences between a small school building and a West End theatre. 

Decision

The Court expressed genuine sympathy for the Claimant and his family but concluded it could not be satisfied that he was exposed to asbestos dust whilst working for the First Defendant in the summer of 1972. The claim was dismissed.

Comparison with Dilks

The cases of Howell and Dilks demonstrate a reassuring consistency of approach taken by the court when assessing a Claimant’s evidence of asbestos exposure, even where the nature of the evidential deficit differs. 

In Dilks, the Deceased had given no account of his alleged exposure. The Claimant relied on the recollections of former colleagues and the Claimant's account of conversations with the Deceased. In Howell, the Claimant gave evidence on commission, but his own account was undermined by internal inconsistencies and the expert consensus on the distinctive smell and the food heating plate, and the absence of asbestos at the identified school. 

Notwithstanding the contrast in the evidence presented, the Court remained faithful to first principles in finding that the Claimants failed to discharge the burden of proving asbestos exposure on the balance of probabilities and declined to bridge evidential gaps.