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QLDLegal StudiesQuick questions
Unit 2: Balance of probabilities
Quick questions on The standard of proof and burden of proof in civil law: QCE Legal Studies
7short Q&A pairs drawn directly from our worked dot-point answer. For full context and worked exam questions, read the parent dot-point page.
What is the civil standard?Show answer
The plaintiff in a civil claim must prove their case on the balance of probabilities. This means more likely than not, or more than a 50 percent likelihood.
What is the burden of proof?Show answer
The general rule is that "he who asserts must prove". The plaintiff bears the legal burden of proving the elements of the cause of action. The defendant bears the legal burden of proving any affirmative defence (e.g. contributory negligence under the Civil Liability Act 2003 (Qld) Part 1 Division 2).
What is the Briginshaw principle?Show answer
In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J observed that the strength of the evidence required to meet the balance of probabilities varies with the gravity of the matter alleged. The more serious the allegation, the more cogent the evidence must be to satisfy the court that the matter is more likely than not. The standard remains the balance of probabilities; the practical operation is more demanding for serious allegations.
What is reverse onus?Show answer
Some statutes reverse the ordinary burden. The defendant must prove an element on the balance of probabilities. Examples in Queensland include:
What is presumptions?Show answer
Some legal rules create presumptions that shift the evidential burden:
What is the contrast with criminal law?Show answer
The two standards reflect different protections. Criminal law engages the loss of liberty, so the higher standard is justified. Civil law balances private interests, so the lower standard is appropriate.
What is why the same fact pattern can produce different outcomes?Show answer
A defendant may be acquitted of a criminal charge (the prosecution failing to prove beyond reasonable doubt) but be found liable in a related civil claim (the plaintiff proving on the balance of probabilities). The classic illustration in the United States is the OJ Simpson case (acquitted of murder, then found liable in the wrongful death suit). The same principle operates in Queensland: a criminal acquittal does not preclude a civil claim arising from the same facts.
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