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Williams, CR --- "Burdens and Standards in Civil Litigation" [2003] SydLawRw 9; (2003) 25(2) Sydney Law Review 165

Burdens and Standards in Civil Litigation

C R WILLIAMS[*]


Abstract

This article provides an account of where the burden of proof lies in respect of some of the major issues that commonly arise in civil cases, and an account of the standard of proof that must be met in civil cases. Determining which party carries the burden of proof requires consideration of the substantial nature of the plaintiff’s cause of action and the defences available rather than merely having recourse to the form in which legal rules are stated or causes of action created by statute are expressed. The distinction must be drawn between the legal, evidential and tactical burdens, and regard had to considerations of practical convenience. In expressing the standard of proof the expression ‘balance of probabilities’, as interpreted by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, gives the court a degree of flexibility in applying the civil standard without requiring the development of intermediate standards between the normal civil standard and the criminal.

[*] Sir John Barry Chair of Law, Monash University.

1. Introduction

The aim of a trial is to reconstruct the facts of a past event so that the tribunal may then apply the law to those facts. This is a process that can be achieved with only a limited degree of success, and in consequence the question ‘how is the finder of fact to proceed in cases of uncertainty?’ assumes considerable significance. The questions ‘who has the burden of proof?’, or ‘who will fail if the tribunal is unable to determine what occurred?’ become important at two points of time in a trial.[1]

First, at the close of a party’s case the opposing party may submit that there is ‘no case to answer’, ie that the first party has not discharged the burden of proof on a particular issue to the extent of requiring the opponent to respond. If such submission is accepted, then in cases tried by judge alone the issue will not be further considered by the judge, and in cases tried with a jury will be withdrawn from the consideration of the jury. Where the burden of proof lies upon the plaintiff then, if that issue is an essential element of the cause of action pleaded, the case will be dismissed.

Secondly, the burden of proof becomes crucial if at the conclusion of the case the tribunal is unable to determine where the truth lies. In such situations each issue in respect of which the tribunal of fact is undecided is determined against the party who carried the burden of proof on that issue.

Belief is a matter of degree, and the tribunal requires a standard by which belief must be measured before being accepted as a basis for decision. The standard of proof is the degree or level to which the party carrying a burden of proof must meet that burden.

The present article is intended to provide an account of where the burden of proof lies in respect of some of the major issues which commonly arise in civil cases, an analysis of the factors which lead to the placing of the burden on one party rather than the other, and an account of the standard of proof which must be met in civil cases.

2. Terminology and the Shifting Burden of Proof

In both criminal and civil cases the phrase ‘burden of proof’ is commonly said to be used in two quite distinct senses. In one sense it means ‘The peculiar duty of him who has the risk of any given proposition on which the parties are at issue — who will lose the case if he does not make this proposition out, when all has been said and done.’[2] The burden of proof in this sense has variously been termed ‘the legal burden’[3] , ‘the risk of non-persuasion’,[4] ‘the fixed burden of proof’,[5] ‘the probative burden’,[6] and ‘the burden of persuasion’.[7] The phrase ‘the legal burden’ is the most commonly used, and is the one that will be adopted in this article.

Thayer defines the second sense in which the phrase ‘burden of proof’ is used as ‘the duty of going forward in argument or in producing evidence; whether at the beginning of a case or at any later moment throughout the trial or the discussion’.[8] Cross refers to this burden as:

[T]he obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation.[9]

There is a significant difference in the formulations adopted by Thayer and by Cross, and this will be considered presently. This burden has been referred to as ‘the evidential burden’,[10] ‘the duty of producing evidence satisfactory to the judge’,[11] and ‘the burden of proof in the sense of introducing evidence’.[12] The phrase ‘the evidential burden’ is the one that will be adopted in this article.

These two burdens are, of course, quite distinct and arise at different points in a trial. Where the question is whether a no case submission should be accepted, or whether a particular issue should be left to the jury or considered by the judge in a case tried by judge alone, it is the evidential burden which is in issue. Where the question is what should be done if, at the end of the day, the tribunal is unsure where the truth lies, it is the legal burden that is in issue. Wigmore summarises the distinction between the two burdens as follows:

The risk of non-persuasion operates when the case has come into the hands of the jury, while the duty of producing evidence implies a liability to a ruling by the judge disposing of the issue without leaving the question open to the jury’s deliberations.[13]

Considerable confusion has arisen from a failure to distinguish adequately between these two burdens. Thus, appeals have been allowed because the trial judge directed the jury that the legal burden rested on a party whereas in fact only the evidential burden rested upon that party.[14] On occasion appeal courts themselves discuss questions of burden of proof without making it clear whether they are talking about the legal burden or the evidential burden.[15]

A more subtle source of confusion, however, lies in the fact that the expression ‘evidential burden’ is commonly used to refer to two notions that are in fact quite distinct. In the first sense the evidential burden means the burden of adducing evidence on an issue on pain of having the trial judge determine that issue in favour of the opponent. This is the sense in which the expression ‘evidential burden’ is used in the passage quoted from Cross, above.

The second sense in which the expression ‘evidential burden’ is used includes the burden resting upon a party who appears to be at risk of losing on a given issue at a particular point in the trial. The party is under an evidential burden in the sense that if the party does not produce evidence or further evidence he or she runs the risk of ultimately losing on that issue. The passage from Thayer immediately preceding that from Cross incorporates this meaning into the concept of burden of proof.

Both judges[16] and academic commentators[17] commonly treat the evidential burden as incorporating both these notions. Yet they are clearly distinct. The former involves a question of law, while the latter involves merely a tactical evaluation of who is winning at a particular point in time. Among commentators who in fact distinguish between these two concepts, the expression ‘evidential burden’ is commonly reserved for the former notion and the expression ‘tactical burden’[18] or ‘provisional burden’[19] is used to refer to the latter notion. The expression ‘tactical burden’ is the one that will be used in this article.

It is commonly said that the burden of proof ‘shifts’ during the course of a trial. Sometimes it is asserted that the evidential burden but not the legal burden may shift.[20] Sometimes it is asserted that both burdens may shift.[21] Such assertions involve, it is submitted, an inadequate analysis of the concept of burden of proof.

Any case, whether civil or criminal, involves a finite number of potential issues; a number of elements comprise each cause of action and each criminal offence, and a number of potential defences are available to the defendant or the accused. In respect of each of these issues, rules of law determine upon which party the legal and the evidential burden lies. The only burden that does shift in the course of a trial is the tactical burden. A failure to distinguish between the evidential burden and the tactical burden would appear to be responsible for most of the suggestions that the burden of proof shifts. At any given point in time a party who has the legal burden in respect of a particular issue may appear more or less likely to be able to discharge that burden. If that party appears likely to be able to discharge the legal burden, then the tactical burden shifts to the other party; the other party must produce contradictory evidence or run the risk of losing on that issue. If that other party produces such evidence, then the tactical burden may shift back to the party bearing the legal burden. Such swings of the forensic pendulum as a case progresses involve, however, no shift in either the legal or the evidential burden.

It is sometimes suggested that the operation of presumptions is to shift the evidential and even the legal burden of proof.[22] However, this is not so. When one party establishes facts that give rise to a presumption, he or she merely shifts the tactical burden onto the other party in a particularly strong sense. The other party is faced not merely with the likelihood of losing on that issue unless contradictory evidence is produced, but is faced with the certainty of doing so. The operation of a presumption is that it is sufficient, unless rebutted, to satisfy the requirements of a burden. It is not to shift a burden.

3. The Incidence of the Burden of Proof in Civil Cases

A. The Legal Burden

(i) The Legal Burden is Decisive When the Evidence is Evenly Balanced

If the tribunal of fact is satisfied to the appropriate standard as to the existence or non-existence of the facts representing the issues in the case, then of course no question of burden of proof arises.[23] If the tribunal is not so satisfied in respect of any issue, then that issue must be determined against the party carrying the burden of proof. There is no power in the court to attempt to achieve a measure of rough justice by adopting an intermediate hypothesis.

In Nesterczuk v Mortimore[24] a head-on collision occurred between two vehicles being driven by the parties on a straight and level road. The plaintiff sued the defendant in negligence, and the defendant counter-claimed. Both claimed that they were on their correct side of the road, and that the accident had occurred when the other party had suddenly swerved onto his incorrect side. The trial judge dismissed both the claim and counter-claim.

On appeal to the High Court it was argued that if the trial judge was unable to decide that the accident was due to the negligence of one party rather than the other, then the judge was bound to take the view that both were to blame and apportion the damages recoverable accordingly. The court rejected the argument. Owen J, with whom Kitto and Windeyer JJ agreed, stated:

The learned trial judge was unable to determine whether the collision had occurred on the northern or the southern side or in the centre of the road and no good reason has been shown why, on the meagre evidence, an appellate court should take a different view. In the circumstances of the case, to say that the probabilities favour the view that both drivers were to blame rather than one or the other was wholly responsible would be a mere guess.[25]

A finding of negligence on the part of both drivers could only, his Honour held, be justifiable if there was evidence to suggest this was a probable cause of the accident, as for example if the accident had occurred in the centre of the road.[26]

(ii) The General Rule

A basic test for determining which party has the burden of proof is contained in the judgment of Walsh JA in Currie v Dempsey.[27] His Honour stated:

In my opinion [the legal burden of proof] lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, eg if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an “avoidance” of the claim which, prima facie, the plaintiff has.[28]

The difficulty with such a test is that most matters can be classified either as an ‘essential element’ in the establishment of a cause of action, or as a matter ‘avoiding’ the prima facie claim of the plaintiff. For example, a plaintiff sues a defendant for repayment of a loan, and the defendant claims either (a) that the money was given by way of gift, or (b) that the loan has been repaid. It may be argued that the elements of the plaintiff’s claim are (i) the plaintiff gave the defendant money, (ii) that it was given by way of loan, and (iii) that the money has not been repaid. If this is correct, the burden of proof is on the plaintiff. With equal logic however, it may be argued that items (ii) and (iii) operate to avoid liability, in which case the burden of disproving these items is on the defendant. In fact, it is established in Australia that the burden of proof is on the plaintiff in respect of item (ii) and on the defendant in respect of item (iii). In Joaquin v Hall[29] the Victorian Supreme Court held that the burden of proving that money was given by way of loan and not gift is on the plaintiff. In Young v Queensland Trustees Ltd[30] the High Court held that ‘the law has always been that it lies upon a defendant to make out a defence of payment by way of discharge’.[31]

Decisions such as these cannot be the result purely of logic. This point was made vividly by Professor Julius Stone in the following passage:

What is the difference in logic between a quality of a class as contained in the definition of the class, and a quality of a class as contained in an exception to the class? The answer appears to be — none at all. Every qualification of a class can equally be stated without any change of meaning, as an exception to a class not so qualified. Thus, the proposition “All animals have four legs except gorillas”, and the proposition “All animals which are not gorillas have four legs”, are, so far as their meanings are concerned, identical?....[32]

What then determines where the burden of proof lies? Often the question will turn on the form in which a legal rule is traditionally stated.[33] If an issue is commonly listed among the constituent elements of a cause of action, the burden of proof will be said to be on the plaintiff. If the issue is commonly referred to as a factor leading to the avoidance of liability, the burden of proof will be on the defendant. Thus, in torts law the burden of proving negligence rests on the plaintiff,[34] while the burden of proving contributory negligence is on the defendant.[35] In marine insurance, the burden of proving that the ship was lost by perils of the sea rests on the shipowners.[36] However, legal rules usually assume particular forms for reasons of clarity of exposition quite unrelated to questions of burden of proof. In one case, Sir Wilfred Greene MR remarked:

Nothing can be more dangerous when a question of burden of proof has to be considered, than to pick out the language of learned judges used in cases where neither they nor anybody else was thinking of the question of burden of proof.[37]

Where the form in which a legal rule is commonly stated is not decisive, the basic starting point is that the burden of proof should normally be on the plaintiff as to all issues. In the absence of reasons to the contrary, the party who invoked the judicial process and compelled the defendant’s involvement in that process, should run the risk of having decided against her or him any issue as to which the tribunal of fact is, at the end of the day, undecided.

In some cases a key factor, either re-enforcing the policy of placing the burden of proof on the plaintiff in cases of uncertainty or displacing that policy, may be the consideration that it is possible to predict that, if no evidence were given on a particular issue, the correct result would be reached in most cases by deciding in favour of one party rather than the other. If this is so then, of course, the percentage of correct decisions will be maximised by placing the burden of proof on the opponent.[38]

Illustrative is the decision of the House of Lords in Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd.[39] The defendants chartered a ship to the plaintiffs for a voyage from Port Pirie to Europe. While anchored at Port Pirie, an explosion caused such damage to the ship that it could not perform the charter party. The plaintiffs claimed damages, and the defendants raised the defence of frustration. The plaintiffs claimed that the defendants were entitled to rely on frustration only if they established that the explosion occurred without any fault on their part. The defendants claimed that once the frustrating event is established, the burden of proof is on the plaintiffs to establish such default on the part of the defendants as would deprive them of their right to rely upon it. The trial judge held that the burden was upon the plaintiffs to show the frustration occurred through negligence on the part of the defendants. The Court of Appeal reversed this decision. On appeal the House of Lords affirmed the decision of the trial judge. The decision of the House of Lords would appear correct. In the majority of cases in which the performance of a contract is frustrated, that frustration is, presumably, unlikely to be the result of negligence or other fault on the part of the defendant. If this is so, then placing the burden of proof on the plaintiff will maximise the percentage of correct decisions that will be reached.[40]

The House of Lords may have been influenced by similar considerations in Henderson v Henry E Jenkins & Sons.[41] A lorry owned by the defendants was descending a hill when the brakes failed. The lorry struck and killed a pedestrian. The failure was due to the sudden escape of brake fluid from a hole in a pipe in the hydraulic braking system resulting from corrosion of that pipe. The widow of the deceased claimed damages, alleging that the defendants had been negligent in failing to keep the braking system in efficient repair. The defendants pleaded that the accident had been caused by a latent defect in the braking system. The defence of latent defect applies only where all reasonable care has been taken. The defendants established that they had carried out routine maintenance, but failed to show that there were no special circumstances in the past use of the vehicle to indicate that the lorry might have been subjected to a corrosive agent resulting in the corrosion of the pipe. The House of Lords held, by a majority of three to two, that the burden of proving that all reasonable care had been taken rested on the defendant and that the plaintiff was therefore entitled to succeed.[42] As a matter of policy this decision also would seem correct. Since in most cases where injury is caused as a result of mechanical failure, the explanation is likely to be failure to keep the items in a sufficient state of good repair rather than the presence of a latent defect not discoverable by taking all reasonable steps, it follows that the percentage of correct results will be maximised by placing the burden of proof on the defendant rather than the plaintiff.

(iii) Agreement Between the Parties

In cases of disputes arising under agreements between the parties, the form of the agreement may affect the onus of proof. In Stateliner Pty Ltd v Legal and General Assurance Society Ltd?[43] a policy of insurance on a passenger bus provided that the policy did not cover damage caused while the vehicle was being used ‘in an unsafe or unroadworthy condition, unless such condition could not reasonably have been detected by the Insured’.[44] The Supreme Court of South Australia held that this agreement obliged the insurer to prove the bus had been used while in an unsafe or unroadworthy condition, but placed the obligation of establishing that such defective condition could not reasonably have been detected by the insured on the insured.[45]

(iv) Measure of Damages in Tort Cases

The issue of burden of proof in relation to damages in tort cases is of particular significance because of the difficulties involved in measuring damages. The plaintiff must, of course, prove the extent of her or his damages.[46] Where the plaintiff alleges a partial loss of earning capacity, the burden is upon the plaintiff to prove the extent of that partial loss.[47] Even where the plaintiff establishes that a certain figure represents the likely extent of her or his loss, the burden remains on the plaintiff to disprove any offsetting gains. In Stewart v Dillingham Constructions Pty Ltd?[48] an action was brought on behalf of infant plaintiffs in respect of the death of their father. The mother gave evidence on behalf of the plaintiffs, in the course of which she testified as to her intended re-marriage and the prospective adoption of the plaintiffs by her future husband. The trial judge directed the jury that the burden of proof in relation to the benefits the plaintiffs might obtain through their mother’s proposed marriage and their prospective adoption rested on the defendant. On appeal by the defendant, the Supreme Court of Victoria held that the direction of the judge was incorrect. The court held that it is for the plaintiff to prove her or his net loss, and that this includes the legal burden of disproving any offsetting gains.

Differing views have been adopted by the High Court in relation to burden of proof on the issue of whether a plaintiff’s damages ought to be reduced because a pre-existing condition would ultimately have led the plaintiff to her or his present state. In Watts v Rake[49] the High Court held that the burden of proof rested on the defendant. In Purkess v Crittenden[50] however, the court interpreted Watts v Rake as placing the evidential burden only on the defendant and held the legal burden to rest upon the plaintiff.[51] It would seem that on principle the decision in the earlier case is to be preferred. Cases in which the injuries resulting from a tort constitute no more than a hastening of the inevitable are comparatively rare. This being so, the method by which the percentage of correct decisions would be maximised would be to place the legal burden upon the defendant.

The one issue in respect of which it has been established that the legal burden of proof is upon the defendants is mitigation of damages. In Munce v Vinidex Tubemakers Pty Ltd?[52] the defendants alleged that an operation would alleviate the plaintiff’s condition and that it was unreasonable of him not to submit to the operation. On appeal the Supreme Court of New South Wales upheld the direction of the trial judge that the burden of proof on this issue rested on the defendant. Glass JA stated:

There is authority of long standing which establishes an exception to the principle that the plaintiff bears the onus of proving all matters relating to damages. The exception relates to any disputed question that is truly a matter of mitigation of damages. In relation to questions properly so classified, the defendant is subject to both burdens. He must not only introduce evidence that the plaintiff has failed to minimise his loss, but also persuade the jury that the balance of testimony favours this conclusion.[53]

It may be difficult to determine whether an issue is properly classified as one relating to the extent of the plaintiff’s damages or as a question of mitigation of damages. Thus, if the plaintiff fails to obtain employment following her or his accident, and alleges that this failure was the result of her or his incapacity to work as a consequence of the accident, then the burden of proof will be upon the plaintiff since this relates to the measure of damages. If, however, the reason assigned is that the plaintiff was unable to find suitable employment, this will be classified as being a question of mitigation of damages and the burden will be on the defendant to show that the plaintiff could have found such employment.[54]

B. The Evidential Burden

The general rule in civil cases is that the party who has the legal burden also has the evidential burden. In a negligence action, for example, the plaintiff has the legal burden of ultimately persuading the tribunal of fact that the defendant owed the plaintiff a duty of care, that the defendant was in breach of that duty, and that the breach caused damage to the plaintiff. If the plaintiff does not discharge this legal burden, then the plaintiff’s claim will fail. As the plaintiff carries the legal burden in respect of these matters, he or she also carries the evidential burden, and the plaintiff’s case will be withdrawn from the jury unless he or she discharges this burden.

Several exceptions to this general rule are to be found in the area of tort law. As stated above, while the legal burden on the issue of whether a pre-existing condition would in time have led to the plaintiff’s present state rests upon the plaintiff, the evidential burden is upon the defendant.[55] It is also established that, while the legal burden of disproving the existence of offsetting gains is upon the plaintiff, the evidential burden of showing the likelihood of such gains rests upon the defendant.[56]

In the tort of deceit the legal burden of establishing all the elements of the tort rests upon the plaintiff. However, where it is shown that a representation that was false and fraudulent was made, the defendant carries the evidential burden of showing the representation was not acted upon. In Gould v Vaggelas[57] the appellants claimed they had been induced to enter into a contract by the deceit of the respondents. The High Court held that the evidential burden of refuting causation was cast on the respondent, notwithstanding that the legal burden in respect of this issue rested with the appellant. Wilson J stated:

Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. Examples commonly given of such circumstances are that the plaintiff not only actually knew the true facts but also knew them to be the truth or that the plaintiff either by his words or conduct disavowed any reliance on the fraudulent representations. It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus — an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts.[58]

Exceptions are to be found in other fields also. In the area of wills, while the legal burden of proving testamentary capacity rests on the party seeking to take under the will, the evidential burden of showing lack of competence rests on the party who challenges the will.[59] In appeals against assessments by the Commissioner of Taxation, the taxpayer bears the legal burden of proof while the Commissioner bears the evidential burden of raising a particular matter in evidence so as to require the taxpayer to deal with that matter.[60]

4. The Burden of Proof in Causes of Action Created by Statute

Some statutes distinctly deal with the question of burden of proof, eg s 35(2) of the Bills of Exchange Act 1909 (Cth).[61] In most cases, however, statutes creating causes of action do not refer to the question of burden of proof. However, in such cases the statute nonetheless provides an authoritative formulation of the requirements of the cause of action and this formulation may be treated as carrying implications as to which party bears the burden of proof. The courts have thus been required to develop principles designed to aid in determining which party should be treated as bearing the burden of proof in respect of each issue in dispute.[62]

If the issue in dispute constitutes a necessary ingredient of the plaintiff’s cause of action, then the burden will be upon the plaintiff. If, however, it is classified as a matter exempting the defendant from liability in a certain event, then the burden will be upon the defendant. While the form and structure of the particular statute is significant, what is involved is often more than a mere question of construction. It is, rather, an attempt to determine the substantial nature of the cause of action created by the particular statute.

Illustrative is Darling Island Stevedoring and Lighterage Company Limited v Jacobsen.[63] The Workers Compensation Act 1926 (NSW) was expressed to cover cases where the employee ‘received injury without his own default or wilful act on any of the daily or other periodic journeys’ between the employee’s place of abode and place of employment. The plaintiff was injured in the course of such a journey. The High Court held that in spite of the fact that the form in which the clause was cast favoured ‘the view that the words in question express part of the description of the primary or general grounds of liability’,[64] the burden of proving that the injury occurred as a result of the plaintiff’s ‘own default or wilful act’ rested upon the defendant.[65] Rich J stated:

This seems to me to be but another case in which we should weigh the substantial meaning against the form of its expression. I am clearly of opinion that the substantial meaning of the provision is to lay down a general rule of liability arising from the nature of the journey on which the worker was engaged when he sustained the injury. That rule is simple and all embracing. Having adopted it as a principle of general application, the legislature proceeded to introduce by way of exclusion the case of such an injury so sustained having been caused by a special element, namely the default or wilful act of the worker. It is a special exemption, exception or exclusion from the operation of the rule on a new and additional factor, namely fault or wilfulness. These are things which, according to the sense of fairness and justice which inspires the common law, we usually require to be proved against not disproved by the worker, or in the case of his death, his representatives. The substantial nature of the provision is more demonstrative to my mind than the form of the draftsmanship, which was probably determined more by the craving for brevity than the consciousness of the niceties of the rules affecting the burden of proof.[66]

Similarly, considerations of substance governed the decision in Vines v Djordjevitch.[67] The plaintiff was attempting to cross a street when she was knocked down and injured by a motor vehicle. The identity of the driver was not ascertained. In an action against the nominal defendant brought under the Motor Car Act 1951 (Vic) the question arose whether the plaintiff carried the burden of proving that notice of his claim was given to the minister ‘as soon as possible after he knew that the identity of the motor car could not be established’. The requirement of notice was contained in a proviso, which favoured the view that the burden rested upon the defendant. The High Court held, however, that the form of the legislation was not decisive. The court stated:

In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications, exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally.[68]

The court held that since the proviso expressed a requirement that had to be fulfilled by all as a condition precedent to a cause of action being available, the burden of proof rested on the plaintiff.

In contrast to Vines v Djordjevitch may be placed Nominal Defendant v Dunstan.[69] An admittedly uninsured vehicle injured the plaintiff. In an action against the nominal defendant under the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) the question arose as to who had the burden of proof on the issue of whether the vehicle was exempt from the operation of the Act by regulations made pursuant to the Act. The High Court held that since such exemptions constituted ‘special grounds of exculpation’ which are capable of being established only by proof of ‘additional facts of a special nature’, the burden rested upon the defendant.[70]

In cases where the form or structure of the legislation does not give definite guidance on the question of burden of proof, the courts will have regard to considerations of policy and convenience. The fact that a matter is ‘peculiarly within the knowledge of one party’, or that it will be easier for that party to prove the matter than her or his opponent, may be significant. In Nimmo v Alexander Cowan and Sons Ltd?[71] the plaintiff brought an action against his employers for breach of statutory duty in respect of injuries sustained when he fell while unloading bales from a railway wagon. He claimed that his place of work had not been kept safe as required by the Factories Act 1961 (UK). Section 29(1) of that Act requires employers ‘so far as reasonably practicable’ to provide and maintain a safe place of work. The question arose whether it was for the plaintiff to prove that it had been reasonably practicable to provide a safe place of work, or for the defendant to show that it had not been so practicable. The House of Lords held that the burden rested upon the employers.[72] Lord Upjohn stated:

I cannot believe that Parliament intended to impose upon the injured workman or, if dead, his widow or other personal representative, the obligation to aver with the necessary particularity the manner in which the employer should have employed reasonably practicable means to make and keep the place safe for him. Although the pursuer can nowadays consult experts, he is at a great disadvantage compared to the employer. He may have little recollection of the accident, or, of course, he may have been killed, and his widow be in an even worse state. Then, on the other hand, it is the duty of the employer to make the place safe so far as is reasonably practicable. It is his duty with his experts to consider the state of the place of work in all its circumstances and to take whatever steps he can, so far as reasonably practicable, to make it safe. He must know and be able to give the reasons why he considered it was impracticable for him to make the place safe. If he cannot explain that, it can only be because he failed to give it proper consideration, in breach of his bounden duty to the safety of his workmen.[73]

5. Standard of Proof

At the trial the question of standard of proof may arise at two stages. First, the court must decide whether the party having the evidential burden has satisfied that burden to the required standard, that is, whether that party has established a prima facie case. Here the judge is required to consider whether it is reasonably open to the finder of fact to determine the issue in dispute in favour of the party carrying the evidential burden.[74] If so, then that issue will be left to the jury, or in cases tried by judge alone further considered by the judge. Secondly, where an issue is left to the jury, the judge must give a proper direction as to the standard that the jury must apply in determining whether the party having the legal burden has satisfied that burden. In cases tried without a jury the judge personally must apply the correct standard.

An appeal court may be concerned with the question of standard of proof in a number of different contexts. First, an appellant may argue that the judge should not have found that the respondent had established a prima facie case. Secondly, an appellant may argue that in the course of her or his summing up the judge misdirected the jury as to the standard of proof or, in cases tried by judge alone, that the judge applied an incorrect standard. Thirdly, an appellant may argue that, on the whole of the evidence, no reasonable jury could have been satisfied of the respondent’s case to the required standard.

A. The Nature of the Legal Standard

In civil cases the legal burden of proof resting on a party is said to be to the standard of ‘the balance of probabilities’ or ‘the preponderance of probabilities’.[75] This simple statement, however, conceals a significant ambiguity. Must the party carrying the burden of proof merely show that it is more likely than not that the conditions required to establish her or his case exist? Alternatively, must the finder of fact be satisfied that it is more likely than not that the conditions required to establish the party’s case exist? The difference may be crucial. Assume that a plaintiff is trying to show that the brakes of a particular car of a certain make and model were defective. If the plaintiff could establish statistically that 51% of cars of that make and model had defective brakes then, in the absence of other evidence, the plaintiff would have shown that it was more likely than not that the brakes of any particular car of that make and model were defective. If, however, the tribunal is required to be satisfied that the car’s brakes were defective, then the tribunal might regard such evidence as insufficient. A requirement of satisfaction involves something more than an estimate of probabilities; it requires a subjective belief in a state of facts on the part of the body charged with determining the facts.

The latter formulation represents the view that has been adopted in Australia. In Briginshaw v Briginshaw[76] a husband petitioned for dissolution of marriage on the ground of adultery. The trial Judge felt great difficulty in deciding whether adultery had occurred. He stated that were the case a civil one he might well consider the probabilities were in favour of the petitioner, but that he was not satisfied beyond reasonable doubt that adultery had taken place. The petitioner appealed to the High Court. The court held that the correct standard in divorce cases is the balance of probabilities but that the petitioner was not entitled to a re-trial.

The leading judgment was delivered by Dixon J. His Honour held that there exists no third standard of proof intermediate between the criminal and the ordinary civil standard. His Honour held, however, that the jury must be satisfied of those facts which a party must prove, and that what is required to satisfy a jury may vary having regard to the nature of the facts alleged. His Honour stated:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[77]

His Honour went on to say that the trial judge had found himself unable to arrive at any satisfactory or firm and definite conclusion that adultery had been committed, and that accordingly the petitioner’s appeal should be dismissed.[78]

The courts have had regard to ‘the nature and consequence of the fact or facts to be proved’ in determining whether they ‘feel an actual persuasion’ of those facts in a variety of circumstances. In Willcox v Sing[79] the Supreme Court of Queensland held a trial judge had been entitled to comment that the jury should not lightly find against a surgeon where negligence was alleged of such a character as to put his reputation and earning capacity at risk. In Re Jane[80] the Family Court took the view that a finding that it is in the best interests of a physically and mentally disabled woman to order sterilisation requires ‘something more than a mere tipping of the balance in favour of the proposal.’[81] In Shaw v Wolf?[82] Merkel J held the court should ‘not lightly make a finding on the balance of probabilities’[83] that persons were not aboriginals where such finding would result in their election to an ATSIC regional council being held invalid. In G v H?[84] however, the High Court held that in maintenance proceedings, where it was established that a particular person could be the father of a child, the question of actual paternity should not be approached on the basis that it involves a grave or serious allegation in the Briginshaw sense. In Clark v NZI Life Ltd?[85] Thomas J held that while a finding of suicide should not be made lightly, it was not so inherently unlikely or grave as to bring it to the top of the range of the Briginshaw test.

The Briginshaw approach to standard of proof was affirmed by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[86] The plaintiff sued the defendant for deceit, alleging the takings of a business purchased from the defendant had been exaggerated. The defendant claimed the plaintiff had deliberately minimised the takings of the business after acquisition. The trial judge dealt with the issue on the balance of probabilities, but made no express reference to any requirement of clear, cogent or strict proof. The judge found in favour of the plaintiff but that judgment was set aside on appeal to the Full Court of the Supreme Court of Western Australia on the ground that the judge had erred in relation to the standard of proof. On appeal the High Court reinstated the original judgment. In a joint judgment Mason CJ, Brennan, Deane and Gaudron JJ stated:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[87]

The High Court held, however that where both sides allege serious wrongdoing there is little scope to have regard to the seriousness of the allegations or the gravity of the consequences in reaching a decision. Mason CJ, Brennan, Deane and Gaudron stated:

When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion.[88]

The view of Dixon J in Briginshaw v Briginshaw is, it is submitted, correct in principle.[89] It gives the court a degree of flexibility in relation to the issue of standard of proof without requiring the development of intermediate standards between the normal civil standard and the criminal. The Briginshaw approach is taken up in the Evidence Act 1995 (Cth and NSW).[90]

It may be objected that injustice is done to a plaintiff who may be denied a decision in her or his favour where there is a 51% or more chance that the facts necessary to establish the plaintiff’s claim exist. It is, however, the plaintiff who has chosen to invoke the judicial process and involve the defendant in that process, and when this is remembered it does not seem unjust to require the plaintiff to ‘satisfy’ the tribunal of facts and not merely to demonstrate a statistical probability. A test of statistical probability would itself produce results that would appear unjust. L Jonothan Cohen takes the case of a rodeo at which a thousand seats were taken but only 499 persons have paid at the turnstiles.[91] Should the proprietor be able successfully to sue 501 patrons chosen at random on the basis that in the case of each person there were 501 chances in a thousand that that person had not paid? It is, it is submitted, correct for the law to require more than a finding of probability in favour of the person bearing the burden of proof in civil cases, and for that something more to vary having regard to the particular issue involved.[92]

Murphy J considered the issue of standard of proof in TNT Management Pty Ltd v Brooks.[93] The respondent’s husband was driving a semitrailer that collided with a pantechnicon on a curve in the highway in New South Wales. She sought damages from the employer of the pantechnicon driver. Both drivers were killed and there was no witness to the accident. Under New South Wales legislation the respondent was entitled to full recovery not only if the driver of the pantechnicon was wholly to blame, but also if he was partly to blame.[94] Gibbs J, with whom Stephen, Mason and Aickin JJ agreed, stated that a finding of negligence could not properly be based solely on general considerations as to the expectation or likelihood of negligence, but that a factual basis for such a decision must be found from the evidence in the case. Because the wreckage of the pantechnicon’s cab had been found on the wrong side of the road, his Honour was able to infer on the balance of probabilities that the pantechnicon’s driver had been guilty of some negligence.

Murphy J dismissed the implications from the wreckage as being too slight and based his decision on probability theory. His Honour reasoned that out of the three apparent possibilities — one driver wholly to blame, the other driver wholly to blame, and each driver partly to blame — two stood in favour of the respondent, so that she ought to succeed on the balance of probabilities. His Honour, however, gave no adequate reason for rejecting a fourth possibility, a true ‘accident’ which was the result of neither driver. Thus a proper application of Murphy J’s reasoning gives rise to four possibilities, only two of which favour recovery, with the consequence that the respondent ought to have failed. In any event, it is not legitimate to attempt to decide cases on the basis of general theories about probability unrelated to the circumstances of the particular case. In reality, Murphy J’s reasoning was an attempt to reverse the burden of proof in negligence actions in New South Wales, requiring the defendant to adduce evidence to defeat the probability argument. The view of Murphy J was rejected by the majority of the High Court in West v Government Insurance Office of New South Wales.[95] The court held that where there is insufficient evidence to establish whether the plaintiff or the defendant or both had been negligent, then there should be judgment for the defendant. The majority stated that inferences as to the conduct of either driver should not be drawn in the absence of evidence to support such inferences.

B. The Argument for a Higher Standard in Certain Civil Cases

In the United States a third standard of proof ‘by clear and convincing evidence’ is recognised, resting midway between proof on the balance of probabilities and proof beyond reasonable doubt.[96] A number of judicial statements have been made which might be taken as suggesting that such a third standard exists in English and Australian law. Thus it has been said that where an allegation of professional misconduct involving an element of deceit or moral turpitude is made, a higher standard of proof is called for.[97] Evidence in rebuttal of the presumption of the formal validity of a marriage must show to ‘a high degree of probability’ that the marriage was not valid.[98] An intention to change domicile must be ‘clearly and unequivocally proved’.[99]

It is submitted, however, that such statements mean no more than that the inherent unlikelihood of the allegation or proposition put by the party bearing the onus of proof is itself a factor to be placed in the balance scales. For example, it may be thought that a well-respected surgeon or counsel is unlikely to engage in misconduct involving deceit or moral turpitude in her or his professional capacity. Accordingly, a party who makes such an allegation must present comparatively weighty evidence to satisfy the tribunal on the balance of probabilities that such misconduct occurred.[100] The standard of proof does not change, but the quantum or quality of evidence required to meet the standard may. In Briginshaw v Briginshaw[101] Dixon J denied the existence of any third standard of proof. This view was affirmed by the High Court in Rejfek v McElroy[102] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[103]

In only one Australian case does the court appear clearly to have adopted a distinct and higher standard of proof for a certain class of civil matter. In Morrison v Jenkins[104] the applicants, Mr and Mrs Morrison, brought proceedings to obtain the custody of a child they alleged was theirs. They claimed there had been a confusion of babies at the time of birth, and that they had received the child of Mrs Jenkins while Mrs Jenkins had received their child. The children had been born in a country hospital between five and ten minutes of one another. Blood tests established that the child brought home by Mrs Morrison could not have been the child of Mr Morrison. Mrs Morrison testified that she had not had intercourse with anyone other than her husband and this testimony was not challenged. Mr and Mrs Jenkins refused to have blood tests made, although they were given the opportunity of doing so. At the time of trial the children were three-and-a-half years old.

The trial judge, Barry J, set himself a standard of proof depending not ‘upon a bare balance of probabilities, but as the result of the thorough conviction of my mind founded upon a careful and patient attention to all the evidence in the case.’[105] This test involved, it would seem, no more than the normal standard of the balance of probabilities, regard being had to ‘the nature and consequence of the fact or facts to be proved’.[106] His Honour found in favour of the Morrisons, and the Jenkins appealed successfully to the Full Supreme Court of Victoria. The Full Supreme Court took the view that the standard set by Barry J was not sufficiently strict. Fullagar J, with whom Herring CJ and Lowe J agreed, stated that no order should be made changing the child’s custody ‘unless it is established as a matter of practical certainty that [she] is the child of Mr and Mrs Morrison’.[107] Herring CJ set the standard of proof as ‘beyond all possible doubt’,[108] and Lowe J spoke of a ‘standard of practical certainty’.[109]

The Morrisons appealed to the High Court where, by a majority of three to two (Rich, Dixon and Webb JJ; Latham CJ and McTiernan J dissenting), the decision of the Full Supreme Court was affirmed. With the exception of Latham CJ, all members of the court set the standard of proof at an exceptionally high level. Rich J stated that the Morrisons must exclude ‘every other reasonable hypothesis’.[110] Dixon J expressed his agreement with the view of the Victorian Full Court.[111] McTiernan J stated that ‘all reasonable doubt’ must be excluded.[112] Webb J was not prepared to go so far. His Honour stated that while a court cannot change the standard of proof, ‘it can and should insist on exact or cogent proofs on issues of grave importance like that of parentage’.[113]

It is submitted that the view of Barry J was preferable to that taken by the Supreme Court and the High Court. The Supreme Court and the majority of the High Court appear to have been overly influenced by the consideration that a verdict in favour of the Morrisons, even if correct, would involve grave disruption to a young child’s life. Such a consideration does not appear legitimate. Whether it is more harmful to disrupt a young child’s life than to order the continued existence of a family situation that is, on the balance of probabilities, a factually unwarranted one, is pure conjecture.

C. Allegations of Crime in Civil Proceedings

Where a party to a civil case is required to establish the commission of a crime as part of her or his case, the standard of proof that must be met is the ordinary civil standard. In Helton v Allen[114] a testatrix died of strychnine poisoning. Helton, to whom the testatrix had left the greater part of her property, was tried and eventually acquitted of her murder. The testatrix’s next of kin, in order to prevent Helton from taking under the will, commenced an action seeking to show that Helton had in fact murdered the testatrix. The trial judge instructed the jury that if they thought the probabilities in favour of the opinion that Helton poisoned the testatrix outweighed in any degree, however slight, the probabilities against that opinion, they should find against him. The jury found against Helton, who appealed to the High Court. The High Court held that the standard of proof required to be met by the next of kin was the civil standard and not the criminal. The court, however, ordered a re-trial. Their Honours held that the trial judge had misdirected the jury by failing to instruct them that they had to be satisfied that Helton committed the murder, and that in deciding whether they were so satisfied regard must be had to the gravity of the allegations made against Helton. The rule that it is the civil standard that applies when an allegation of crime is made in civil proceedings has been adopted in numerous subsequent cases.[115]

6. Conclusion

Determining which party carries the burden of proof in civil cases may frequently be a difficult task. What is called for is consideration of the substantial nature of the plaintiff’s cause of action and the defences available rather than merely having recourse to the form in which legal rules are stated or causes of action created by statute are expressed. The distinction must be drawn between the legal, evidential and tactical burdens of proof, and in cases of uncertainty regard had to considerations of practical convenience. In expressing the standard of proof, the expression ‘balance of probabilities’, with the gloss placed upon that expression by Dixon J in Briginshaw v Briginshaw, is well understood and correct in principle. The Briginshaw interpretation of the civil standard gives the court a degree of flexibility in applying the civil standard without requiring the development of intermediate standards between the normal civil standard and the criminal.


[1] The burden of proof also determines which party has the right to begin calling evidence.

[2] James B Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) at 355.

[3] John Dyson Heydon, Cross on Evidence (6th Australian ed, 2000) at 198; Lord Denning, ‘Presumptions and Burdens’ (1945) 61 LQR 379; John Dyson Heydon, Evidence: Cases and Materials (2nd ed, 1984) at 13.

[4] John Henry Wigmore, Evidence in trials at common law, revised by John T McNaughten (c1961), volume IX at 283. Volume IX revised by James H Chadbourn, 1981. Previous editions known as Wigmore on Evidence and A treatise on the Anglo-American system of evidence in trials at common law.

[5] Nigel Bridge, ‘Presumptions and Burdens’ (1949) 12 MLR 273.

[6] DPP v Morgan [1975] UKHL 3; [1976] AC 182 at 209 (Lord Hailsham); at 217 (Lord Simon).

[7] Edward W Cleary, McCormick’s Handbook of the Law of Evidence (2nd ed, 1972) at 783; Sydney L Phipson, Phipson on Evidence (15th ed, 2000) at 55.

[8] Thayer, above n2.

[9] Heydon, Cross on Evidence, above n3 at 199.

[10] Ibid; Heydon, Evidence: Cases and Materials, above n3 at 13.

[11] Wigmore, above n4 at §2487; Cleary, above n7 at 783.

[12] Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto & Taylor JJ).

[13] Wigmore, above n4 at 299.

[14] Eg, Sutton v Sadler [1857] EngR 738; (1857) 3 CB (NS) 87; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; R v Guerin [1967] 1 NSWR 255; R v Joyce [1970] SASR 184; R v Hinz [1972] Qd R 272.

[15] Eg Redpath v Redpath and Milligan [1950] 1 All ER 600; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

[16] Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 167–168; Currie v Dempsey (1967) 69 SR (NSW) 116 at 125; Henderson v Henry E Jenkins & Sons & Anor [1970] AC 282 at 301; Stewart v Dillingham Constructions Pty Ltd [1974] VicRp 3; [1974] VR 24 at 28; Gould v Vaggelas (1985) 157 CLR 215 at 238; Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation [1985] 1 NSWLR 561.

[17] Thayer, above n2; Phipson, above n7 at 64–68.

[18] Heydon, Cross on Evidence, above n3 at 197; Peter K Waight & Charles Robert Williams, Evidence: Commentary and Materials (6th ed, 2002) at 57.

[19] Denning, above n3. Note also Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419.

[20] Thayer, above n2 at 355–370; Wigmore, above n4 at 300–301; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; R v Morgan [1975] UKHL 3; [1976] AC 182 at 217.

[21] Heydon, Cross on Evidence, above n3 at 224–230.

[22] Id at 228–229.

[23] Robins v National Trust Co [1927] AC 515 at 520.

[24] [1965] HCA 60; (1965) 115 CLR 140.

[25] Id at 155. See also Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470; Maher-Smith v Gaw [1969] VicRp 47; [1969] VR 371.

[26] As in Bray v Palmer [1953] 1 WLR 1455; Baker v Market Harborough Industrial Co-Operative Society Ltd [1953] 1 WLR 1472.

[27] (1967) 69 SR (NSW) 116.

[28] Id at 539.

[29] [1976] VicRp 84; [1976] VR 788. Following Heydon v Perpetual Executors Trustees and Agency Co (WA) Ltd (1930) 45 CLR111. See also Jenkins v Wynen [1992] 1 Qd R 40. Contra, Seldon v Davidson [1968] 1 WLR 1083.

[30] [1956] HCA 51; (1956) 99 CLR 560.

[31] Id at 562.

[32] Professor Julius Stone, ‘Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd’ (1944) 60 LQR 262 at 280.

[33] For this reason the rules relating to burden of proof are sometimes said to be the province of substantive law rather than the law of evidence, see Heydon, Cross on Evidence, above n2 at 196. The Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) do not deal with the question of determining which party carries the burden of proof in civil cases.

[34] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Goodwin v Nominal Defendant (1979) 54 ALJR 84; West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62; Pickford v Imperial Chemical Industries plc [1998] UKHL 25; [1998] 3 All ER 462.

[35] Lopes v Taylor (1970) 44 ALJR 412.

[36] Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948.

[37] Imperial Smelting Corporation Ltd v Joseph Constantine Steamship Line Ltd [1940] 2 KB 430 at 433 (Sir Wilfred Greene MR). Although the decision of the Court of Appeal was reversed on appeal to the House of Lords (Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154), nothing in their Lordships’ judgments reflected upon the accuracy of this dictum.

[38] For elaboration of the significance of this form of reasoning, see Stone, above n32.

[39] [1942] AC 154.

[40] Similar reasoning explains the rule that the burden of proof is on the bailee to show that bailed goods were lost without her or his default since no doubt in most cases fault on the part of the bailee is the correct explanation for the loss of such goods (Tozer Kemsley and Millbourn (Australasia) Pty Ltd v Collier’s Interstate Transport Service Ltd [1956] HCA 6; (1956) 94 CLR 384; Fankhauser v Mark Dykes Pty Ltd [1960] VicRp 61; [1960] VR 376).

[41] [1970] AC 282.

[42] Lord Reid, Lord Donovan & Lord Pearson; Lord Guest & Viscount Dilhorne dissenting.

[43] (1981) 29 SASR 16.

[44] Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16.

[45] See also The Glendarroch [1894] P 226; Munro Brice and Co v War Risks Association Ltd [1918] 2 KB 78; Craig v Associated National Insurance Co Ltd [1984] Qd R 209.

[46] Pastras v Commonwealth [1967] VicRp 18; [1967] VR 161 at 164.

[47] Beck v Cavaiuolo (1974) 8 SASR 288; Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751; Allan v Loadsman [1975] 2 NSWLR 789; Linsell v Robson [1976] 1 NSWLR 249.

[48] [1974] VicRp 3; [1974] VR 24.

[49] [1960] HCA 58; (1960) 108 CLR 158.

[50] [1965] HCA 34; (1965) 114 CLR 164.

[51] See also Pastras v Commonwealth [1967] VicRp 18; [1967] VR 161; Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561.

[52] [1974] 2 NSWLR 235.

[53] Id at 239. See also Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at 159 (Dixon CJ); Buczynski v McDonald (1971) 1 SASR 569; Plenty v Argus [1975] WAR 155; Craig v Garfit-Mottram (1977) ACTR 12; Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 38 ALR 424 at 427; Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VicRp 52; [1986] VR 507. A contrary view was adopted by the Privy Council in Selvanayagam v University of the West Indies [1983] 1 All ER 824.

[54] Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120; Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77.

[55] Purkess v Crittenden, above n50.

[56] Baker v Dalgleish Steam Shipping Co [1922] 1 KB 361; Curwen v James [1963] 1 WLR 748; Stewart v Dillingham Constructions Pty Ltd [1974] VicRp 3; [1974] VR 24.

[57] (1984) 157 CLR 215.

[58] Id at 238.

[59] Sutton v Sadler [1857] EngR 738; (1857) 3 CB (NS) 87; 140 ER 671.

[60] Coppleson v FCT [1928] ArgusLawRp 106; (1981) 34 ALR 377.

[61] For discussion of this provision, see Heydon, Cross on Evidence, above n3 at 213.

[62] For consideration of the principles governing burden of proof in relation to statutes creating criminal offences, see Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136; Samuels v Stokes [1973] HCA 62; (1973) 130 CLR 490; R v Edwards [1975] QB 27; Francis v Flood [1978] 1 NSWLR 113; R v Hunt [1987] AC 352; DPP v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249. Note, Williams, ‘Placing the Burden of Proof’ in Campbell & Waller (eds), Well and Truly Tried (1982) at 271, 291–296.

[63] [1945] HCA 22; (1945) 70 CLR 635.

[64] Id at 644 (Dixon J).

[65] Held by Rich, Dixon, McTiernan & Williams JJ, Starke J dissenting.

[66] [1945] HCA 22; (1945) 70 CLR 635, 639. See also Pye v Metropolitan Coal Company Ltd [1934] HCA 9; (1934) 50 CLR 614; (1936) 55 CLR 138.

[67] [1955] HCA 19; (1955) 91 CLR 512.

[68] Id at 519 (Dixon CJ, McTiernan, Webb, Fullagar & Kitto JJ). See also Neptune Oil Co Pty Ltd v Fowler (1963) 63 SR (NSW) 530; Currie v Dempsey [1967] 2 NSWR 532; Lynch v Attwood [1983] 3 NSWLR 1; Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88.

[69] [1963] HCA 5; (1963) 109 CLR 143.

[70] Id at 151. See also Romano v Foggo [1974] 2 NSWLR 336; Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 285; Attorney-General (ACT) v ACT Minister for Environment (1993) 43 FCR 329; Minister for Immigration and Ethnic Affairs v Tang (1993) 47 FCR 176, affirmed [1994] HCA 31; (1994) 69 ALJR 8; Emery v Spencer [1995] 1 Qd R 247; Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16.

[71] [1968] AC 107.

[72] Lord Guest, Lord Upjohn & Lord Pearson; Lord Reid & Lord Wilberforce dissenting.

[73] [1968] AC 107 at 125. Cf Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 at 196–197 (Barwick CJ); Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249.

[74] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Note, Morison, ‘The Quantum of Proof in relation to Motions for Non-suit and Verdicts by Direction’ in Harold Glass (ed), Seminars on Evidence (1970) at Ch 2; Glass, ‘The Insufficiency of Evidence to Raise a Case to Answer’ (1981) 55 ALJ 842.

[75] A different standard may, of course, be imposed by statute in civil cases, as with the Repatriation Act 1920 (Cth) which imposes the criminal standard on the Repatriation Commission. See Repatriation Commission v Law [1981] HCA 57; (1981) 36 ALR 411; Repatriation Commission v Byrne (1981) 40 ALR 296; Repatriation Commission v Perrot [1984] FCA 139; (1984) 53 ALR 690.

[76] [1938] HCA 34; (1938) 60 CLR 336.

[77] Id at 361–362. See also Hocking v Bell [1944] NSWStRp 31; (1944) 44 SR (NSW) 468; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517; Cuming Smith and Co Ltd v Westralian Farmers Co-Operative Ltd [1979] VicRp 15; [1979] VR 129 at 147; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 at 262; Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127; Hardcastle v Commissioner of Police (1984) 53 ALR 593; Wentworth v Rogers [No 5] (1986) 6 NSWLR 534; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; G v H [1994] HCA 48; (1994) 181 CLR 387; Bank of WA v Ocean Trawlers Pty Ltd (1995) 13 WAR 407; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 576; Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97; Employment Advocate v Williamson [2001] FCA 1164; (2001) 185 ALR 590 at 608–609. The Briginshaw approach has also been adopted in England, see In re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586–587.

[78] The establishment of irretrievable breakdown as the sole ground for dissolution under the Family Law Act 1975 (Cth) meant of course that the ordinary civil standard or proof applies in matrimonial proceedings without the necessity for any gloss on the expression of that standard: see In the Marriage of Pavey [1976] FamCA 36; (1976) 10 ALR 259.

[79] [1985] 2 Qd R 66.

[80] (1988) 85ALR 409.

[81]Id at 416. See also Re L and M: Director-General, Department of Family Services and Aboriginal and Islander Affairs [1993] FamCA 124; (1993) 17 Fam LR 357 at 373, 376.

[82] (1999) 163 ALR 205.

[83] Id at 216.

[84] [1994] HCA 48; (1994) 181 CLR 387. See also Murray v Kickmaier [1979] 1 NSWLR 414.

[85] [1991] Qd R 11.

[86] [1992] HCA 66; (1992) 67 ALJR 170.

[87] Id at 170–171.

[88] Id at 172.

[89] A contrary view is adopted by Richard Eggleston, Evidence, Proof and Probability (1983) at chs 3 & 10. On the subject of probability theory as a basis for legal decision-making generally, see also James, ‘Relevance, Probability and the Law’ (1941) Cal LR 689; Michael Finkelstein & William Fairley, ‘A Bayesian Approach to Identification Evidence’ (1970) 83 Harv LR 489; Laurence Tribe, ‘Trial by Mathematics: Precision and Ritual in the Legal Process’ (1971) 84 Harv LR 1329; L Jonathan Cohen, The Probable and the Provable (1977); Glanville Williams, ‘The Mathematics of Proof’ [1979] Crim LR 297 & 340; Richard Eggleston, ‘Letter: The Mathematics of Proof’ [1979] Crim LR 682; L. Jonathan Cohen, ‘The Logic of Proof’ [1980] Crim LR 91; Glanville Williams, ‘A Short Rejoinder’ [1980] Crim LR 103; Richard Eggleston, ‘The Probability Debate’ [1980] Crim LR 678 & correspondence at 743; Dennis Lindley & Richard Eggleston, ‘The Problem of Missing Evidence’ (1983) 99 LQR 86; Alan Tyree, ‘Probability Theory and the Law of Evidence’ (1984) 8 Crim LJ 224; David Hamer, ‘The Civil Standard of Proof: Uncertainty, Probability, Belief and Justice’ [1994] SydLawRw 37; (1994) 16 Syd LR 506; Andrew Ligertwood, Australian Evidence (1993) at 13–32; DH Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-Finding’ (1995) 69 ALJ 731.

[90] Section 140 of the Acts provides:

In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

See Employment Advocate v Williamson [2001] FCA 1164; (2001) 185 ALR 590 at 608; Stephen Odgers, Uniform Evidence Law (2000) at 379–380.

[91] Cohen, The Probable and the Provable, above n89 at 75.

[92] This is not to suggest that considerations of probability should not form part of the process by which a court reasons to a conclusion. In State Government Insurance Commission v Laube (1984) 37 SASR 31 the court found that it had not been proved that the defendant had been so much under the influence of intoxicating liquor as to be incapable of exercising effective control of his vehicle. It is suggested that in reaching this conclusion the court gave insufficient weight to evidence that the majority of persons with the blood alcohol content the defendant was shown to have had would have been incapable of exercising effective control of a motor vehicle.

[93] (1979) 53 ALJR 267.

[94] Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s10.

[95] [1981] HCA 38; (1981) 148 CLR 62. See also Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 255 at 262; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155; Kilgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600. Note Shane Simpson & Michael Orlov, ‘An Application of Logic to the Law’ [1980] UNSWLawJl 11; (1980) 3 UNSWLJ 415.

[96] McCormick on Evidence, above n7 at 796–798.

[97] Bhandari v Advocates Committee [1956] 3 All ER 742; Cuming Smith and Co v Westralian Farmers Co-Op Ltd [1979] VicRp 15; [1979] VR 129 at 147.

[98] Piers v Piers [1849] EngR 416; (1849) 2 HL Cas 331 at 380; [1849] EngR 416; 9 ER 1118 at 1136.

[99] Moorhouse v Lord [1863] EngR 375; (1863) 10 HL Cas 272 at 286; 11 ER 1031 at 1036.

[100] See New South Wales Bar Association v Livesey [1982] 2 NSWLR 231.

[101] Above n76.

[102] [1965] HCA 46; (1965) 112 CLR 517.

[103] Above n86. See also Murray v Murray (1959–60) 33 ALJR 521 at 524; Minister for Business and Consumer Affairs v Evans (1984) 54 ALR 128.

[104] [1949] VicLawRp 51; [1949] VLR 277; (1949) 80 CLR 626. For discussion of the case, see Peter Brett, ‘Law in a Scientific Age’ in Norval Morris & Mark Perlman (eds), Law and Crime (1972) at 80.

[105] [1949] VicLawRp 51; [1949] VLR 277 at 286 quoting Morris v Davies [1827] EngR 663; (1837) 5 Cl & F 163 at 221–222; [1827] EngR 663; 7 ER 365 at 388 (Lord Lyndhurst).

[106] Briginshaw v Briginshaw, above n76.

[107] [1949] VicLawRp 51; [1949] VLR 277 at 304.

[108] Id at 298.

[109] Id at 299.

[110] [1949] HCA 69; (1949) 80 CLR 626 at 640.

[111] Id at 642.

[112] Id at 648.

[113] Id at 654.

[114][1940] HCA 20; (1940) 63 CLR 691.

[115] Hocking v Bell [1944] NSWStRp 31; (1944) 44 SR (NSW) 468; (1945) 71 CLR 430; Exchange Hotel Ltd v Murphy [1947] SAStRp 20; [1947] SASR 112; McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157; Teaciuc v Broken Hill Pty Co Ltd [1962] NSWR 830; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517; Metropolitan Water Sewerage and Drainage Board v Tallow Products Pty Ltd (1970) 91 WN (NSW) 370; Lemmer v Berthams (1971) 2 SASR 397; Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156; In re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125.


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