LEGAL BURDEN OF PROOF AND EVIDENTIAL BURDEN OF PROOF, DISTINCTION BETWEEN

• Date: 06 February 2019

"The person who normally claims the existence of a thing which by the operation of law he claims to be his, is usually called plaintiff/claimant. The person against whom the claim is made and who normally denies is called the defendant. The above definitions postulate at least two distinct senses in which burden of proof is used: the legal burden and the evidential burden. The legal burden is the proof which remains constant throughout a trial. See: Emanuel v. Emanuel (1945) 2 All E.R. 494 at page 496. It is the burden of establishing the facts and contentions which will support a party’s case. If at the end of trial, he has failed to establish these to the appropriate standard, he will lose. Young v. Rank (1950) 2 K.B. 510. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends as the golden rule is that onus of proof is on the plaintiff. See: Chapman v. Oakleigh Animal Products Ltd. (1970) 8 K.I.R. 1063 at 1072. Thus, the burden rests upon the party desiring the Court to take action. He must satisfy the Court or Tribunal that the conditions which entitle him to an award have been satisfied. See: Dickinson v. Minster of Pensions (1953) 1 Q.B. 228 at 232. In respect of particular allegation, the burden lies upon the party for whom the substantiation of that particular allegation is an essential of his case. See Mills v. Barber (1836) 1 M & W 425 at 427. There may therefore be separate burdens in a case with separate issues. For instance, in a negligence action the burden of proof of duty, breach of duty and damage is upon the plaintiff and of contributory negligence upon the defendant...