ABSTRACT
We may suggest two general propositions: (a) the legal burden lies on the party who asserts a proposition; and (b) the party bearing the legal burden on an issue generally bears the evidential burden on that issue as well. What is the relevant proposition that a party must assert to be successful in the proceedings depends on the substantive law, in which policy may play a role. Thus, if a plaintiff sues a defendant in negligence, before the plaintiff can succeed, the plaintiff will have to assert and establish that the defendant owed the plaintiff a duty of care, that the defendant acted in breach of that duty, and that as a consequence of that breach, the plaintiff suffered loss. The plaintiff has the evidential and legal burdens in relation to those assertions, and the defendant has no evidential or legal burden to establish the negative merely because the defendant asserts a denial of the plaintiff’s propositions. The plaintiff cannot succeed if he or she does not discharge the burdens of proof resting on the plaintiff, while the defendant does not necessarily lose merely by leading no evidence to answer the plaintiff’s evidence.
