Civil Cases
Introduction
Discussion of proof of civil cases comprises discussion of:
(1)
Rule 1. Starting Point. This is conventionally referred to as the onus of
proof or the burden of proof.
(2)
Rule 2. Finishing point. This is conventionally referred to as the
standard of proof.
Rule 1. Starting Point
Initiator’s Case
Under the general common law rule the starting point for civil cases (and also
criminal cases) is that the party who initiates proceedings must prove the case.
This represents a point of 0% on the initiator’s scale, which amounts to 100%
on the responder’s scale. Nothing is assumed to have happened so everything
has to be proved. This is expressed in the basic rule of law determining the
onus of proof. Generally, the party who brings the case, the plaintiff or
prosecutor, has to prove it.
For an initiator, the first significant step towards proof is to put forward some
probative evidence for each element of the cause of action or crime. This is
referred to as presenting a prima facie case.
Defences
The onus of proof of a defence in a civil case falls on the responder (who
must prove any defence on the balance of probabilities). Thus, for the
defences the needle starts at 0% on the responder’s scale, which means that
the needle is on 100% on the initiator’s scale.
Rule 2. Finishing Point
Initiator’s Case
Common law lays down the standard of proof for a plaintiff in a civil action. It
is framed in three ways that amount to the same thing. In civil matters the
standard of proof at common law is proof on the proof on the preponderance
of evidence or the preponderance of probabilities in the United States,
653
or
the balance of probabilities in the United Kingdom
654
and other
Commonwealth jurisdictions.
655
These formulas are taken to mean that the
plaintiff’s case is more likely to be true than not true or “more probable than
not”.
656
This means that the plaintiff must prove their case so that it is 51%
653
See, for example, Grogan v Garner 498 US 279 (1990), 286.
654
Re H [1996] AC 563, 586
655
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
656
Miller v Minister of Pensions per Lord Denning [1947] 2 All ER 372
 |
 |
 |