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Why is it that a company is presumed to be liable for the mesothelioma of one of it's previous employees if it can be shown that they were exposed to above background levels of asbestos? There are a number of other causes of mesothelioma (radiation, some paints, sv40 virus, family genetics, as well as the unknown causes which result in a 1:1,000,000 spontaneous rate). It seems on the surface to be an argument which merely begs the question. Low levels of asbestos exposure cause mesothelioma because we have seen mesothelioma cases with low levels of asbestos in their lungs (which of course is only relevant if you've already concluded that low levels of asbestos can cause mesothelioma).

I'm having trouble understanding how such a situation ever became so strong without anyone having mounted a successful defense - i.e. that the litigant's mesothelioma could have been caused by any number of agents and so the company could not be held responsible, simply because of the possibility that their negligence could have been the cause.

Basically, it is still being argued whether low levels of exposure to asbestos can even cause mesothelioma at all, and yet it seems a huge (and seemingly impenetrable) quantity of litigation is built on the premise that it definitely does. Have there been any successful defenses in litigation based on the fact that mesothelioma has a number of non-asbestos causes?

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The scientific evidence is unambiguous: exposure to asbestos greatly increases the chance of contracting lung/plural cavity cancer. For example, this study shows a 45 deaths from this cause in an exposed population when 6.6 were expected. There are many other similar studies that indicate that asbestos exposed workers are 5 or more times likely to contract these types of cancers than the general population.

In addition, the pathology of how asbestos causes cancer is well understood and has been duplicated many times in lab animals.

In WHS law, employers have strict liability- if the illness or injury occurred in the course of employment then the employer is liable even if they did everything they possibly could to avoid it. Therefore the plaintiff only needs to prove that the illness did occur in the course of employment.

Given that the burden is "balance of probabilities" this is pretty easy. The scientific evidence is that there were at least 5 chances in 6 that it was in the course of employment- i.e. it is way more than 50:50.

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  • Thanks for replying, I'm afraid I may not have been clear enough in my question but I'm referring specifically to those cases where there is a low (but above background) level of exposure. It is definitely not unambiguous in these cases, with virtually all serious authorities on the matter mentioning that the effect of asbestos at low levels is uncertain. The WHO for example say they "cannot be quantified reliably and are probably undetectably low" It is this kind of exposure I'm referring to, not asbestos workers, where the connection is clear. – Pseudonym Oct 2 '17 at 16:19

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