Q&As

In tort claims, what is the burden of proof and what is the test of causation? Is the burden satisfied where damage is very unlikely to have been caused by the defendant’s actions, but it is a less unlikely cause of the damage than defendant’s alternative suggested cause?

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Published on LexisPSL on 16/11/2017

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • In tort claims, what is the burden of proof and what is the test of causation? Is the burden satisfied where damage is very unlikely to have been caused by the defendant’s actions, but it is a less unlikely cause of the damage than defendant’s alternative suggested cause?
  • Burden of proof
  • Causation in tort claims

Burden of proof

The claimant must prove that, on the balance of probabilities, the defendant has been negligent or has breached their statutory duties. Proof on the balance of probabilities means proof that it is more likely than not. If the claimant’s evidence is equally consistent with the presence or absence of negligence or breach of the duty then the claim will fail.

If the defendant has been convicted of an offence arising out of the alleged negligent act, this will create a rebuttable presumption that they committed that offence. In these circumstances, the burden of proof is reversed. It is then for the defendant to prove that, on the balance of probabilities, there was no negligence.

The court is able to draw reasonable inferences from the known facts. This is achieved by assessing the evidence in order to determine whether it amounts to evidence of negligence against the defendant. The court will take a common sense approach when assessing the evidence, the claimant will have less to establish where the e

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