The facts
The claimant was the executor of the estate of Mr Eldred Grocock, deceased. The claimant’s case was that the deceased developed mesothelioma following his exposure to asbestos during the course of his employment with the National Coal Board as a mobile plant operator.
The deceased worked for the Coal Board for just over 20 years, between 1967 and 1988. The claimant claimed the deceased’s exposure to asbestos occurred as he drove over asbestos waste to crush, compress and compact it into the ground whilst operating a grader. The court was invited to find on the issue of exposure before considering breach of duty, causation and quantum.
Significantly, there was no direct evidence obtained from the deceased regarding his exposure to asbestos prior to his death, nor any documentary evidence. The claimant’s case was therefore based on lay witness evidence that:
- Disposal of asbestos was a regular occurrence at colliery sites throughout the deceased’s working region (North Derbyshire)
- The claimant’s witnesses provided evidence that asbestos waste was disposed of in spoil heaps located at Williamsthorpe and Markham and this was crushed and compacted by bulldozers and graders.
- Because the deceased operated a grader, he was probably exposed to asbestos at other spoil heaps in North Derbyshire, as the crushing and compacting of asbestos-containing materials would have generated asbestos-containing dust which would have entered his cab.
Both parties adduced expert evidence: written evidence from Dr Michael Beckles, consultant physician (instructed by the claimant and in response to questions from the defendant); Mr Chris Chambers, Health and Safety Practitioner (for the claimant) and Dr Alan Jones, occupational hygienist (for the defendant). However, the expert evidence was ultimately not relevant in the Judge’s final decision.
Discussion
It is not the first time the court has been faced with a mesothelioma claim where the evidence as to exposure is patchy at best. In his judgment, Mr Christopher Kennedy KC, (sitting as a High Court Judge) first considered the case of Briggs v Drylined Homes [2023] EWHC 382 and the reminder that the burden of proof rests exclusively on the person bringing the claim and that the standard of proof to be applied is the conventional civil standard: “on the balance of probabilities.” Mr Kennedy KC noted: “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.”
The court went on to consider elements of the judgment of the Court of Appeal in Johnstone v Fawcett's Garage (Newbury) Limited [2025] EWCA Civ 467. Whilst in this case, the decision turned on the expert evidence, the Court of Appeal did briefly consider the extent to which “the creator of the risk of harm must bear the consequences of evidential uncertainties” or, to put it another way, give a claimant with evidential uncertainties the benefit of the doubt.
The deceased did not operate a grader at Wiliamsthorpe and he did not work at Markham. The evidence of the claimant’s lay witnesses was of regular disposal of asbestos waste at spoil heaps where the deceased did not operate a grader. Mr Kennedy KC accepted: “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 of 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 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.”
Ultimately, Mr Kennedy decided it was “too great a leap of faith.” There was not sufficient lay witness evidence to confirm that the deceased was operating graders or dumper trucks (which were not his usual plant) at the relevant sites on the occasions when asbestos waste had been dumped. Accordingly, the court dismissed the claimant’s claim.
Conclusions
Mesothelioma being the cruel disease that it is, it would be tempting for a court to give claimants the benefit of the doubt evidentially, but that is not how the law works and nor should it be. This case is an important reminder of the evidential burden in all cases and how this burden rests with all claimants. The claimant must prove on the balance of probabilities that exposure to asbestos probably happened, not just that it could possibly have happened. This is particularly difficult when there is no direct evidence from the deceased, or anyone who actually witnessed the alleged exposure at the time. The findings in this case may deter some claimants (and their solicitors) from pursuing claims on the basis of what they believe is a strong possibility of exposure. For those claimants who proceed with their claim, a reminder of this judgment may give them pause for thought.
If you have any questions about asbestos-related or other disease claims, please do not hesitate to contact our experts.
