the standard of proof (balance of probabilities) and burden of proof in civil law

What this dot point is asking

QCAA wants you to know the standard and burden of proof in civil law, contrast them with the criminal standards, and apply the Briginshaw refinement. Expect a 3-5 mark short response.

The answer

The civil standard: balance of probabilities

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.

This is a lower standard than the criminal standard of beyond reasonable doubt because civil litigation does not engage the same protection of personal liberty.

The burden of proof

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).

The evidential burden is the obligation to adduce some evidence on a matter to put it in issue. The evidential burden may shift to the other party as the evidence develops. The legal burden generally does not shift.

The Briginshaw principle

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.

This is now codified in Queensland through the Evidence Act 1977 (Qld), and in Commonwealth proceedings through the Evidence Act 1995 (Cth) s 140, which requires the court to take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged.

The Briginshaw principle is commonly invoked in:

• defamation actions;
• professional misconduct proceedings;
• protection orders;
• workplace disciplinary matters.

Reverse onus

Some statutes reverse the ordinary burden. The defendant must prove an element on the balance of probabilities. Examples in Queensland include:

• defamation defences under the Defamation Act 2005 (Qld) (the defendant has the burden of proving justification, qualified privilege, contextual truth);
• contributory negligence under the Civil Liability Act 2003 (Qld);
• discrimination defences under the Anti-Discrimination Act 1991 (Qld) (some special measures defences).

Presumptions

Some legal rules create presumptions that shift the evidential burden:

• the presumption of survivorship (where two persons die in circumstances that make the order uncertain, the elder is presumed to have died first);
• the presumption of regularity (acts of public officials are presumed to have been done correctly until rebutted).

The contrast with criminal law

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.

Why the same fact pattern can produce different outcomes

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.

Why the lower civil standard is justified

The difference in standards reflects what is at stake. A criminal conviction can deprive a person of their liberty and carries the stigma of state condemnation, so the law demands the highest standard, beyond reasonable doubt, and places the burden squarely on the state. A civil claim resolves a private dispute and the worst outcome is usually an order to pay damages or to do or stop doing something, so the law balances the interests of two private parties evenly by asking only which version is more probable. This is why the same incident can be tested twice, under two standards, with different results, and why the civil system can still deliver a remedy to a wronged plaintiff even where a prosecution fails.

The Briginshaw principle softens any impression that the civil standard is a low bar. Because the standard is a single one (the balance of probabilities) but its practical application varies with the seriousness of the allegation, a court will require stronger and more cogent evidence before finding, for example, fraud or professional misconduct proved than before finding a minor contractual breach proved. The standard does not change; the quality of evidence needed to satisfy it does.