Terminology III

Burden of Proof

In any tort action, it is the plaintiff who must provide the supporting evidence and prove the case against the defendant based on the above elements: duty of care, breach and causation. The plaintiff is said to carry the burden of proof and must normally demonstrate 'on the balance of probabilities' that their version of the facts is the most acceptable to the court. The exception to this is where there is obvious negligence on the part of the defendant – 'the facts speak for themselves' – and the burden of proof then shifts from the plaintiff to the defendant.

Contributory Negligence

Should both the plaintiff and the defendant be found partially at fault, it is common practice to apportion the degree of fault and in turn any liabilities and damages. This is common practice with automobile accidents.

Joint and Severable

In addition, under 'joint and several liability' a plaintiff may recover all the damages from any of the defendants, regardless of their individual share of the liability. For example, a contractor may be found to be 90 percent liable but if they are no longer in business or declare bankruptcy, the other party or parties would be responsible to pay the full damages.

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