Low exposure or no exposure? An insider’s take on Dilks v Secretary of State for Energy Security and Net Zero

We acted for the Defendant, the Secretary of State for Energy Security and Net Zero, in a fatal mesothelioma claim brought by the Deceased’s nephew, Mr Dilks. The trial was heard by Christopher Kennedy KC (sitting as a Deputy High Court Judge), who dismissed the claim. Having seen several commentaries on the decision, we offer a brief practitioner’s perspective on the case and its implications for asbestos litigation.

Facts

The Deceased, Mr Grocock, was employed by the National Coal Board between 1967 and 1988. He worked as a driver attached to the Williamthorpe Mobile Plant, ordinarily operating a grader. The grader’s primary function was to level and shape colliery spoil heaps, including access roads for other heavy plant. In that role, the Deceased was deployed to multiple collieries within the NCB’s North Derbyshire Area.

Allegations

The Deceased made no witness statement during his lifetime addressing any asbestos exposure, nor did he provide an account to his treating clinicians. The Claimant’s case was therefore advanced through the evidence of three former colleagues who had also worked at Williamthorpe, together with alleged conversations between the Deceased and his nephew.

It was alleged that the Deceased was exposed to asbestos when loading, tipping and driving over discarded asbestos cement sheets and lagging on colliery spoil heaps and by working in the vicinity of others doing the same. There was also a suggestion of possible exposure during military service and later work in the construction industry, although no evidence was adduced on those potential exposures. 

Evidence

The Court heard evidence from the Claimant, three former colleagues of the Deceased, the former manager of the Mobile Plant and four further witnesses who had held managerial roles within the NCB (albeit not in the North Derbyshire Area). Expert evidence was given by Mr Chris Chambers for the Claimant and Dr Alan Jones for the Defendant.

Submissions on Exposure

For the Claimant, it was submitted that although the evidence of exposure was incomplete, it did not require any significant judicial “leap of faith” to infer that the Deceased had been exposed to asbestos in the manner alleged. It was argued that Mr Chambers’ admittedly “crude” calculations of exposure should be preferred.

For the Defendant, it was submitted that the Court was in fact being asked to make multiple leaps of faith. It was not enough for the Claimant to show that the Deceased might have been exposed to asbestos; rather, the Claimant bore the burden of establishing exposure of sufficient extent to amount to a breach of duty.

Findings

The Court accepted that asbestos waste had been tipped on two colliery spoil heaps in the North Derbyshire Area. It did not accept, however, that the Deceased had been exposed at either location. Nor had the Claimant discharged the burden of proving exposure at other collieries in the area.

The Court was also unable to attach weight to the Claimant’s evidence that he had discussed the circumstances of the Deceased’s asbestos exposure with him. It found that the Claimant could not reliably distinguish between what he had been told by the Deceased and what he had learned from other sources.

Those findings on exposure were sufficient to dispose of the claim. In the circumstances, the Court made no findings on causation.

Comment

After a week of vigorous cross examination and detailed legal argument, the outcome was a straightforward application of first principles. Where evidential uncertainty exists, the burden of proof remains with the Claimant. A claimant must prove the case on the balance of probabilities. It is not sufficient to show that the Deceased might have been exposed to asbestos.

The decision is a reminder that the Court will not seek to bridge evidential gaps by making “leaps of faith”. Nor will Fairchild displace the conventional burden of proof where exposure itself has not been established. For practitioners, Dilks underscores the continued importance of careful scrutiny of exposure evidence, particularly in cases where the person alleged to have been exposed is unable to give evidence and the claim depends on reconstruction many years after the event.