The burden of proof: Proving losses and causation

Author(s): Robert M. Ben*, Deanna S. Gilbert, Lucy G. Jackson

September 28, 2020


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.


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

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