The burden of proof: Proving losses and causation

Thank you to everyone who attended our Thomson Rogers Webinar Series “The Burden of Proof: Proving Losses and Causation” held September 25, 2020 conducted by Thomson Rogers’ personal injury lawyers Robert Ben, Deanna Gilbert and Lucy Jackson.

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Webinar Highlights:

 
• Standard burden of proof in a civil case (tort & AB): balance of probabilities.

• Lower than “beyond a reasonable doubt” or “100% medical certainty”
• Equivalent to a probability of 51% or higher

• Language:

• Words that do not satisfy the burden: possibly, maybe, may, could, might
• Word that do satisfy the burden: on a balance of probabilities, probably, likely, more likely than not, will, would.

• Exception:

• Lower burden than a balance of probabilities
• Only applicable to future losses/needs/risks
• “Real and substantial possibility” or “real and substantial risk”
• Must be more than fanciful, speculative, or remote possibility
• Signals lower level of confidence
• Consequences: expert for other side may be preferred or Plaintiff/insured may be given a lower reward

Summary:

• Plaintiff/insured generally has to prove on a balance of probabilities
• Words matter
• Where even a future risk/need/loss can be proved on a balance of probabilities, then say so. Only resort to the exception where must
• Point is to ensure that your words accurately reflect what you are actually trying to convey