Private Law Theory

INTRODUCTION
Under the normal standard, claimants in a negligence suit bear the burden of proving causation on the balance of probabilities. In McGhee v National Coal Board, the House of Lords held that the normal standard has an exception. In this short note, I want to discuss two very different arguments for justifying the exceptional or special rule that McGhee established. The first argument grounds that justification on the fact that the defendant has materially increased the risk of harm for the claimant. Despite its endorsement in the cases and some notable literature, this argument fails because it begs the question that it means to answer. The second and, in my view, more robust argument grounds the required justification on two different facts: that the defendant had the opportunity to avoid the situation that led to the evidential cul-de-sac; and that this opportunity was something valuable for that defendant …

€ (Westlaw)

Emmanuel Voyiakis, ‘Two justifications of McGhee’ [2023] Journal of Personal Injury Law (4) 239-246.