Class 3 Answers
ANSWERS TO QUESTIONS FOR CLASS 3
1. What is the difference between the reasons of Lord Reid and Lord Wilberforce in Mghee
v National Coal Board?
Lord Reid says that if a plaintiff can prove there is a material increase in risk, due to the
negligent conduct of the defendant, and the injury does occur, then this will be treated as if
the plaintiff had proved causation. Lord Reid allows an inference of fact if risk and injury are
proved. Reid also rejects any difference between material contribution and material
increase in the risk of injury.
Lord Wilberforce says if a plaintiff proves a material risk of injury due to the negligent
conduct of the defendant, and the injury does occur, then there will be a presumption of
causation that can then be rebutted by the defendant proving it did not cause the injury.
It is hard to say how this would play itself out in reality, it seems that the plaintiff has proved
his case and wins in Lord Reid’s analysis, with no ability in the defendant to prove any lack
of causation. But if Lord Wilberforce is correct, the burden of proof becomes the
defendant’s, with the ability to prove lack of causation. In reality is appears that the
practical effect of each Law Lord’s decision is the same. These principles apply only if the
causation issue is beyond empirical proof.
2. How is the Mghee case different from the previous case Bonnington Castings?
In the Bonnington Castings case, there were two known material causes. So we know each
factor contributed to the injury. In that kind of case, the source of each contributing cause
will be liable for the injury. Think about a person being shot four times. The evidence
establishes that each bullet contributed to the death of the victim. In that case, each bullet
is a material contribution to the injury. InBonnington we have two known causes, and an
apportioning between the causes. In Mghee we don’t know exactly what causes dermatitis,
so we can’t tell if there is a material contribution, we can only tell if there is an increase in
the risk. There is no precise empirical causative link.
3. Does this case resolve the issue of legal causation in the modern context of negligence
I would say probably not. I don’t know if Lord Wilberforce reasons have been commonly
applied in Canada, but my suspicion is that we have very high expectations of technology
to give us a precise cause, and if none is available, it is tempting to think the plaintiff has
not met its onus. I would think advances in technology raise our expectations, and raise the
standards for plaintiffs to prove their cases.
Not surprisingly, American lawyers have complained that juries who have watched the
television series “CSI” often view the evidence presented as falling far short of the
unrealistically high standards portrayed on this series. 4. Can you find a reference in previous cases we have read that deals with the issue of
remoteness of loss?
Two that come to mind:
M’Alister (or Donahue) v Stevenson. There was a concern expressed in this case that
using such an open-ended concept as the foreseeable plaintiff might cause a floodgate of
liability. The qualifying or limiting factor should be “proximity”, and this referred to causal
proximity or closeness. Another way of saying this would be to say the loss should not be
too remote from the conduct that has allegedly been its cause.
Palsgraph v Long Island Railway. This dissenting opinion conceded that foreseeability
should have some function in tort law, and it should be used to determine where to stop the