What is meant by the “burden of proof” and the “standard of proof” in civil cases? How do the courts decide which party has the duty of proving a disputed fact?
The “burden of proof” (sometimes known as the “onus of proof”) is the duty of one party (or the other) to prove a disputed fact. The “standard of proof” is the degree (or weight) of proof required by a court of law to discharge the burden placed upon the party in question. In criminal cases the standard of proof is usually described as “proof beyond reasonable doubt”, whereas in civil cases the standard is usually described as “proof on the balance of probabilities”.
Burden of proof
The maxim of the law is that “the burden of proof rests upon he who alleges, not upon he who denies” or, to put it in a shorter form, “he who alleges must prove”. In civil litigation, as also in arbitration proceedings, this must not be taken to mean that the plaintiff always has the burden of proof. It is quite common for a defendant to bear the burden of proving at least some of the vital facts in a civil case and even, on occasions, for him to have the burden of proving all the vital facts in such a case. This is because the maxim “he who alleges must prove” inevitably has the effect of requiring the defendant not only to prove any counterclaim he may be bringing but also to prove any item in his defence which goes beyond a denial or non-admission of the plaintiff’s claim. Likewise the plaintiff will have the duty of proving any item in his defence to the defendant’s counterclaim which goes beyond a denial or non-admission of the facts alleged in that counterclaim.
Once a fact alleged in a claim or counterclaim has been admitted by the opposing party it ceases to be a fact in issue, and this may mean that the only facts which are left in issue are those which have to be proved by that opposing party. For example, if the employer of a building contractor pays that contractor by cheque and then stops the cheque before it has been paid, the contractor will have the right to bring an “action on the cheque”. It will only be necessary for the contractor, as plaintiff, to aver that the cheque was not honoured when he presented it for payment. Thereafter, the burden of proof will lie upon the employer, as defendant, to prove that he had a lawful reason for stopping the cheque (eg a subsequent discovery that the contractor had defrauded him). Since it is not likely that the employer will deny that he has stopped the cheque, this will mean that he has the entire burden of proof in the case, as pleaded, and that he will have the right (and duty) to open the case and to make the final speech to the court.
Another example of where the burden of proof moves away from the plaintiff and moves towards the defendant (or, at least, appears to do so) is where the plaintiff in a negligence action relies upon the doctrine of res ipsa loquitur. This doctrine was explained by Erle CJ in Scott v London and St Katherine Docks Co (1865) 3 H & C 596 as follows:
where the thing [which caused the accident] is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
Thus, in such a case, the plaintiff has only to prove that the incident which has injured him or has caused him loss or damage fairly comes within the category outlined by Erle CJ and then the burden will shift to the defendant, who will have the duty to give some plausible alternative explanation. In Ward v Tesco Stores Ltd [6] 1 WLR 810 the Court of Appeal, by a majority, held that, in conformity with the doctrine as explained by Erle CJ, a customer was entitled to succeed in an action for negligence after slipping on some yoghurt in a supermarket and suffering personal injuries. There was no direct evidence, one way or the other, about how long the yoghurt had remained on the floor. It was not suggested that any employee of the supermarket had spilt the yoghurt, but merely that there had been a negligent failure to discover the spillage and to clear it up. The plaintiff was able to give circumstantial evidence about the possible duration of the spillage on the floor, in that (about three weeks later) she had noticed that some orange juice had been allowed to remain on the floor of the same supermarket for more than 15 minutes. The majority of the Court of Appeal took the view that the plaintiff was entitled to judgment because the supermarket had failed to show how the accident could have happened otherwise than by lack of care on their part.
It should not be thought that the doctrine of res ipsa loquitur goes so far as to require more than a plausible explanation from the defendant. He does not have to prove that his hypothesis (if credible) is the most probable explanation of disputed events. Thus in Ng Chun Pu v Lee Chuen Tat [8] RTR 298 the plaintiff in a motorway collision relied upon the doctrine of res ipsa loquitur after the defendant’s vehicle (a coach) crossed the central reservation of the motorway and collided with the bus in which the plaintiff was travelling. The Privy Council held that, although this situation correctly gave rise to the doctrine of res ipsa loquitur, the defendant’s explanation (that an untraced motorcar had swerved in front of him and had caused him to cross the central reservation) was a sufficient discharge of the burden placed upon him by the doctrine. Accordingly, because the plaintiff had called no other evidence (except evidence of the collision itself) the defendant, and not the plaintiff, was entitled to judgment. The plaintiff had failed to discharge the legal burden of proof which had started with him, had only ostensibly left him and had manifestly returned to him after the defendant gave a credible (albeit an inconclusive) version of events.
This case illustrates why the legal burden of proof is sometimes called the “persuasive burden” — it is the duty to persuade the court on the balance of probabilities. It may be contrasted with the so-called “evidential burden”, which is merely the duty to call some evidence to neutralise the harmful effects of an otherwise adverse inference. In Ng v Lee the defendant had an evidential burden to put forward an alternative explanation once the presumption of negligence had arisen, but he did not have a persuasive burden to show that his explanation of events was more probable than the plaintiff’s original assertion of negligence. The legal (or persuasive) burden lay with the plaintiff, in reality, from first to last.
Contracts and leases
Contracts and leases (as well as statutes) may have an effect on the burden of proof, depending upon how they are worded and upon how they allocate duties, risks and exemptions from liability. Although the maxim “he who asserts must prove” usually involves a duty to prove a positive fact rather than to prove a negative state of affairs, this will not always be the case. Thus as long ago as 1836 it was held that a party to a lease who alleges breach of a repairing covenant must prove his assertion of “failure to repair” — he cannot put the other party to strict proof of the repairs he has carried out (Soward v Leggatt (1836) 7 C and P 613). In substance, if not in form, this is a positive assertion of fact by the beneficiary of the repairing covenant — namely, a breach of that repairing covenant by the other party.
There are a number of conflicting cases as to which party bears the burden of proof if a contract contains an exemption clause or any other type of clause restricting liability in certain circumstances but not in others. For example, in Hurst v Evans [7] 1 KB 352 a contract of insurance contained a clause that the insurers would not be liable on the policy if any theft of the property, insured by them, was committed by any servant of the insured party. It was held, in that case, that the burden of proof rested upon the plaintiff to prove that none of his servants had committed the theft in question (a theft of jewellery). However, in Munro Brice & Co v War Risks Association [1918] 2 KB 78 the opposite conclusion was reached in a case of marine insurance, where the policy excluded “loss by capture or in consequence of hostilities”. When the insured ship and its cargo disappeared without trace (during the first world war) it was held that the insurers had to prove that they were entitled to the benefit of this clause. As in this case there was no evidence one way or the other, the insured parties were entitled to succeed in their claim against the insurers. It is this case (rather than Hurst v Evans) which is usually regarded as the more reliable decision.
Two other cases are of interest. In Medawar v Grand Hotel [1] 2 QB 11 the plaintiff went to Liverpool to see the Grand National. He arrived at six in the morning and went to the defendants’ hotel. He was allowed to use one room for washing and dressing before the guests arrived later that day. He went away leaving some valuable trinkets on a stand in the room. Subsequently a porter moved the stand into a hallway. When the plaintiff returned to recover his trinkets he found that they had been stolen. He did not know (nor did any other witness in the case) whether they had been stolen from inside the room or from outside in the hallway. It was held that it was for the hotel owners to prove that the trinkets had been stolen from inside the room, not for the plaintiff to prove that they had been stolen in the hallway. This was because there was no real doubt about the fact of the theft, and it was to the advantage of the hotel owners to prove (if they could) that the plaintiff had been partly to blame by leaving the door of his room unlocked. If, therefore, they wanted to make this allegation of negligence against the plaintiff, they had the burden of proving it.
Since the hotel owners could not prove that the plaintiff’s negligence had contributed to the theft, they were fully liable up to the value laid down by an Act of Parliament then in force (£30, under 26 and 27 Victoria [7] chapter 41). Above this value, the plaintiff was not allowed to succeed under the Act of Parliament unless he could show “wilful default or neglect”. Since he could not prove any such default or negligence against the hotel owners, the plaintiff was able to recover only £30, not the full value of the trinkets. Thus, in a case where there was a complete absence of evidence on every important point in the case, the legal allocation of the burden of proof (first one way and then the other) entirely decided the outcome of the plaintiff’s claim.
In The Glendarroch [4] P 226 the plaintiffs made a claim under a bill of lading for sea-water damage to certain goods contracted to be carried by sea. The bill of lading exempted liability for the “perils of the sea”, provided that there had been no negligence on the part of the defendants. It was held by the Court of Appeal that it was for the defendants to prove that the damage to the goods had been caused by the “perils of the sea”. If they succeeded in doing this, it was then for the plaintiffs to prove that the defendants had been negligent.
The outcome of this case is very similar to the decision of the House of Lords in Joseph Constantine SS Line v Imperial Smelting Corporation [2] AC 154. In that case a ship failed to arrive at the time and place which had been agreed for its charter to the plaintiffs. This, in turn, was due to the fact that one of the ship’s boilers had exploded, for reasons which could not afterwards be discovered. The defendants claimed that the explosion had frustrated the contract and the plaintiffs replied that this defence was not open to the defendants because frustration of contract, by its very nature, meant an extraneous event which was not the fault of either party — a fact which could not be presumed in this case and which neither party was in a position to prove or disprove. The House of Lords, however, held that, once the defendants had proved the fact of the explosion and its extent, the burden of proof then shifted to the plaintiffs to establish (if they could) that the explosion was not what it appeared to be (frustration of contract) but was in fact an event which was caused by the negligence of the defendants. Thus, in the final result, the defence of frustration could not be disproved by the plaintiffs.
The Joseph Constantine case is a vivid illustration of the fact that the maxim “he who asserts must prove” is not always a helpful explanation of who has the burden of proof in a particular case.
It is sometimes necessary to enter upon a very precise analysis of exactly what it is that each party is asserting against the other. It should be noted that many of these problems can be avoided if the parties stipulate in their contractual documents where the various burdens of proof are intended to lie.
There is nothing against this practice at common law, although nowadays the provisions of the Unfair Contract Terms Act 1977 would have to be taken into account.
Statutes
It goes without saying that Parliament may distribute or alter burdens of proof or even (as is the case in section 57, Employment Protection (Consolidation) Act 1978, as amended by the Employment Act 1980) make it clear that a particular issue is to be “determined in accordance with equity and the substantial merits of the case” — an apparent attempt to create a neutral burden of proof.
What is, perhaps, less clear to students is the fact that Parliament may, by implication, reverse a burden of proof by using such statutory words as “except”, “provided that”, “otherwise than”, or any other vehicle for creating an exception, exemption, proviso, excuse or qualification to a statutory duty or a statutory liability.
A common form of words to be found in statutes and statutory instruments relating to safety at various places of work is the phrase “so far as is reasonably practicable”. In Nimmo v Alexander Cowan & Sons [8] AC 107 the House of Lords held that a statutory duty placed upon an employer to keep his factory safe “so far as [was] reasonably practicable” carried with it a duty to bear the burden of proof if he wished to argue that it was not “reasonably practicable” for him to have avoided a certain accident or to have guarded against a particular risk. It was not for the injured employee to prove what better precautions his employer should have taken.(*) The advantage to an employee of such an action against an employer (for “breach of statutory duty”) is therefore very clear if the statute is worded in this way (or in any similar way). A common law action for negligence would almost invariably place the entire burden of proof on the plaintiff, unless the doctrine of res ipsa loquitur was open to him.
Standard of proof
The standard of proof in civil cases is “proof on the balance of probabilities” even if it happens to be the case that one party is alleging criminal conduct against the other, eg fraudulent misrepresentation, as in Hornal v Neuberger Products Ltd [7] 1 QB 247. If criminal allegations in civil cases had to be established to the criminal standard of proof this would mean that every claim for damages arising out of a motorcar collision would have to be proved beyond reasonable doubt, by reason only of the fact that careless driving is a criminal offence under the Road Traffic Act 1988.
In Post Office v Estuary Radio Ltd [7] 1 WLR 1396 the Court of Appeal (Civil Division) held that the Post Office did not have to prove beyond reasonable doubt that a disused anti-aircraft fort in the Thames estuary lay within territorial waters, even though the defendants were using that fort for the illegal transmission of radio broadcasts. This was because the Post Office was pursuing a civil action for an injunction rather than bringing a criminal prosecution under the Wireless Telegraphy Act 1949. Accordingly, the divergence of opinion between the expert witnesses called for the Post Office, on the one hand, and for Estuary Radio Ltd, on the other hand, did not have to be resolved as if a criminal standard of proof was incumbent upon the Post office. (The precise point in dispute related to the “natural entrance points of the Thames”, and it was held that the conflicting cartographical and land surveying evidence needed only to be resolved on the balance of probabilities — hence the Post Office succeeded in its claim.)
Although the standard of proof when applying for an injunction in a civil court is the “balance of probabilities”, if the injunction is granted, the consequences of breaking the obligations contained in it will be penal consequences (a fine and/or imprisonment for contempt of court). For this reason it is now clear that, in any proceedings for contempt of court the party alleging that an injunction has been broken must prove this allegation beyond reasonable doubt; Dean v Dean, The Times, November 13 1986.
There are two other special cases relating to the standard of proof in civil cases which deserve mention here. The first relates to “rectification” of documents — the equitable remedy which can be granted by a court if it is satisfied that a contractual document fails to set out the true agreement of the parties. (It is the document which is rectified by the court, not the actual agreement of the parties.) In Shelburne v Inchiquin (1784) 1 Bro CC 338 Lord Thurlow LC stated that this equitable remedy will be granted only if the party applying for it shows “strong irrefragable evidence”. Subsequent cases have confirmed this view and it appears that the standard of proof required here approaches proof “beyond reasonable doubt” (see Snell’s Principles of Equity, 28th ed, p 616). This is both predictable and understandable. The world of commerce would quickly come to a state of confusion if the commercial community could not give full faith and credit to apparently complete and duly signed contractual documents.
The second special case relates to those civil proceedings where one party elects to make an allegation of fraud against the other. In Jonesco v Beard [0] AC 298 the House of Lords emphasised that an allegation of fraud must be pleaded with special particularity and that it must be “strictly proved”.
This does not imply that the allegation must be proved beyond reasonable doubt (see Hornal v Neuberger Products, supra), but it does, perhaps, illustrate the rule of human nature that criminality is a less probable state of affairs than ordinary civil wrongs which have been committed carelessly or in good faith.
(*) A similar result was achieved by the Court of Appeal in the case of a building site governed by the Construction (Working Places) Regulations 1966: see Bowes v Sedgefield District Council [1] ICR 234.
