Howell v Pile Construction: mesothelioma claim fails on disputed asbestos exposure evidence

William Walter Howell v Pile Construction (Southern) Limited & Zurich Insurance Company Limited [2026] EWHC 949 (KB), decided on 24 April 2026 by David O'Mahony sitting as a Deputy Judge of the High Court, illustrates the high evidential bar claimants face in asbestos exposure claims where contemporaneous records are absent and memory is the primary instrument of proof.

Mr Howell, aged 71, was diagnosed with epithelioid malignant mesothelioma in February 2024. His case was that he had been exposed to asbestos insulating board (AIB) during a summer labouring job with Pile Construction in 1972, while working at what he believed to be Great Ballard School in Eartham, West Sussex. Liability and quantum were agreed, contingent entirely on proof of the underlying factual account. The first defendant had been dissolved in 1986, and Zurich Insurance accepted its position as relevant insurer under the Third Parties (Rights Against Insurers) Act 2010.

The claim encountered significant difficulty when investigations at Great Ballard School found no trace of asbestos in the hall. An asbestos survey from 2004–05 identified AIB elsewhere in the school but not in the hall itself. The defendant's expert, Ms Tierney, visited the premises and found none of the physical indicators she would expect to see following asbestos removal. Critically, evidence emerged before trial that the school hall's stage had been added as part of a 1990s extension — the claimant had consistently placed his work in a building with a stage at one end. The claimant's counsel consequently advanced, for the first time two days before the hearing, the position that Great Ballard was "unlikely" to have been the relevant school.

The defendant raised a preliminary objection under the principles in Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041, arguing the case could not be recast so late. The court declined to dismiss the claim on that basis, noting that the Particulars of Claim had always used the formulation "a school that he believes to have been Great Ballard School" — language the defendant itself had acknowledged as expressing belief rather than certainty.

However, the attempt to advance the alternative case that the work occurred at an unidentified different school fared no better. The evidence of Ms Jay (the school owner) and Mr Stevens (the builder who had carried out the extension) did not establish on the balance of probabilities that no stage had existed in the original hall before the 1990s work. Neither witness had been asked the question directly, and despite having sufficient time to clarify the point, the claimant's legal team did not do so. No alternative school was identified or investigated.

The reliability of the claimant's recollections provided further grounds for concern. Two specific features of his account undermined its coherence. First, he maintained that the dust from the boards had a distinctive smell he associated with asbestos — both experts agreed that asbestos does not have a distinctive smell, and neither party suggested that AIB boards would. Second, his description of workmen using broken pieces of board as a food heating plate over a flame was agreed by both experts to be inconsistent with the material being AIB.

The court applied the well-established guidance from Gestmin SGPS SA v Credit Suisse on the unreliability of memory and the distinction between honest and accurate witnesses. It also noted that the claimant's earliest signed account — an IIDB application form — had identified the exposure as occurring at Slindon College in 1973, involved his own cutting of sheets, and conflated it with a separate potential exposure at FW Brackett in 1976. His evidence on each of those elements had shifted materially over the course of proceedings.

Following Sienkiewicz v Greif (UK) Ltd [2011], the judge was careful to avoid a relaxed approach to proof. The claim was dismissed.