The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be: (a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability; (b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed; (c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct. Common law favours fault liability : In civil law, common law liability for causing personal injury tends to be fault liability. Only two areas of liability are at all relevant, ie, the torts of negligence and battery. There are few industrial injury cases in which the allegation is that the defendant intended to attack the claimant; in practice therefore only the tort of negligence is relevant. The courts have discouraged plaintiffs from

doi:10.4324/9781843140504-59

Chapter

The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be: (a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability; (b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed; (c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct. Common law favours fault liability

Chapter

The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be: (a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability; (b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed; (c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct. Common law favours fault liability

ABSTRACT

The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be:

(a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability;

(b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed;

(c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct.