Pesticides, disease, causal uncertainty and standards of proof: An introduction to the impact of causal uncertainty on incapacitated workers seeking compensation in Australia
Environmental and Planning Law Journal
School of Business and Law
This article considers issues of causation for persons seeking workers’ compensation or damages in negligence for harm allegedly the result of employment-related exposure to pesticides, within the context of conflicting scientific or medical evidence as to aetiology, and the association between pesticides exposure and injury or disease. Through a case study of affected Kimberley agricultural workers, and the requirement in negligence of a “necessary condition” regarding factual causation, legal standards of proof are considered for persons alleging incapacity through exposure to pesticides. Arguably, existing standards of proof are inappropriate given the scientific and medical uncertainty surrounding the toxicity of pesticides, imposing a standard of proof that may be impossible for affected persons seeking relief to satisfy. A more beneficial standard of proof is advocated, through the notion of “social causation”, or by analogy to the “reasonable hypothesis” standard of proof for service veterans under the Veterans’ Entitlements Act 1986 (Cth).