Wiping away McGhee’s benevolent smile: Wilsher v. Essez Area Health Authority

• Author(s) / Creator(s)

  • McInnes, Mitchell

• Introduction: In negligence law, conventional wisdom holds that it is for the plaintiff to prove on a balance of probabilities that his loss or injury resulted from the defendant's actions. Typically this is satisfied by showing that \"but for\" those actions, the accident would not have occurred,' although the less stringent \"substantial factor\" test is used where multiple causes underlie the complaint. Evidentiary gaps, however, may render that task difficult, if not impossible, to fulfil. Mindful of that fact, the courts have on occasion fashioned anomalous rules which remove the usual onus from the plaintiff. The best known example of this, the so-called \"McGhee principle\", has been widely accepted and frequently invoked in Canadian tort law. Now, 16 years after its birth, it appears that the principle may have been misconceived. The unanimous opinion of the House of Lords in Wilsher v. Essex Area Health Authority will force Canadian jurists to reassess their long-standing interpretation of McGhee v. National Coal Board.

• Date created

  1990

• Subjects / Keywords

  • Proximate Cause (Law)
  • Burden of Proof

• Type of Item

  Article (Published)

• DOI

  https://doi.org/10.7939/R32B8VS32

• License

  © 1990 Mitchell McInnes et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.