To what extent is it accurate to speak of a reversal of the burden of proof?


 For the proper legal burden, we need to speak of a reversal of the burden of proof. But the fact is to what extent is it accurate to speak of a reversal of the burden of proof? There must be some reason behind the legal burden and the case run in its own way. First, we need to know “what is  burden of proof?” Burden of proof can characterize the duty located upon a group to establish or refute a doubtful fact, or it can define which group bears this load in criminal cases, the burden of proof is located on the tribunal who must show that the defendant is responsible before a jury may find guilty him or her. But in some jurisdiction, the defendant has the burden of establishing the continuation of certain facts that give augment to a defense, such as the madness appeal. In general cases, the plaintiff is normally expressive with the burden of proof, but the defendant can be requisite to establish certain defenses.[1]

 Burden of proof:

The most important rule of evidence in the test of civil (not criminal) cases. The  burden of proof is on the plaintiff (the group bringing the lawsuit) to demonstrate by a “preponderance of evidence” or “weight of evidence” that all the facts essential to win a judgment are most likely true. In a criminal trial the burden of proof is requisite of the prosecutor to confirm the guilt of the accused is “beyond a sensible doubt,” a much more tricky hurdle. Unless there is a absolute failure to present considerable evidence of a very important fact (usually called an “ingredient of the cause of action”), the final decision as to whether the plaintiff has met his/her burden of proof rests with the judges if there is no jury. However, the burden of proof is not constantly on the plaintiff. In some issues it may move to the defendant if he/she raises a truthful issue in protection, such as a assert that he/she was not the registered owner of the car that strike the plaintiff, so the defendant must show his/her claim. If at the close of the plaintiff’s appearance he/she has not presented any proof on a necessary fact, then the case may be dismissed without the defendant having to place on any evidence.[2] It is not to be puzzled with evidential burden, which is an compulsion that shifts between parties over the course of the hearing or assessment. It is not a burden of proof, but the burden to adduce enough evidence to correctly raise an issue at court[3].

 Reversal of the burden of proof:

In English criminal law, there has always been a opinion of innocence; that is, we assume that it is the job of the trial to prove all the facts of the offense against the defendant, to a high standard. The conjecture of innocence has a long and eminent history and is now enshrined in the European Convention on Human Rights (ECHR), Article 6(2) of which reads:

“Everyone charged with a criminal offense shall be assumed innocent until proven guilty according to law.”

However, there are both articulate and obscure constitutional exceptions to this standard. An utter exception is to be establishing in s.2 of the homicide act (1957)[4], which states that a person who wishes to rely on the protection of diminished accountability must show that he was acting under a trouble of mind which led to the fatal act. It is widely accepted that the  burden of proof lies with the defendant in such cases. In practice, Parliament has been very willing to impose a  burden of proof on a defendant in so far as the facts relate to a defense, rather than to the elements of the offence itself. For example, if the defendant is charged with carrying a knife in a public place, contrary to s.139 (4) criminal justice act (1988)[5], it is for the prosecution to prove that the defendant had the blade that its size and figure put it within the forward of the statute, and that the defendant was in a civic place. The defendant does not have to establish that he did not have a blade, or that it was too small to be banned, or that he was not in a public place[6]. However, if the defendant needs to rely on the defense of lawful power to defeat the accuse, he must show that he had legal authority.

It should be familiar that a ‘true’ reverse burden of proof is quite different from an ‘evidential burden’. The ordinary law has always conventional that sometimes it will be essential for the defendant to raise enough evidence to advantage from a defense. For example, to benefit himself of the common-law defense of lunacy, the defendant must guide some evidence to hold the defense. It remains the duty of the prosecution to show to be false the defendant’s evidence, beyond sensible doubt[7].

Indirect reverse burdens of proof sometimes occur where a statute criminalizes some conduct, but makes stipulation for certain facts that might undo the offence. Depending on the phrasing of the statute, the court may interpret such a stipulation as impressive the burden of proving these details on the defendant. For example, a defendant charged with selling alcoholic drinks without a license has the burden of proving that he had a license at the relevant time. It is not for the trial to show that he did not. This conclusion follows from s.101 of the Magistrates’ Courts Act (1980)[8], which states that where the definition of a criminal offence includes an exception, exemption, proviso, qualification or excuse, it is for the defendant to prove that his conduct falls within the exception, etc. Such a provision has become known by the jargon term ‘affirmative defense’. More controversial are statutes in which it is unclear whether the language defines the elements of the defendence, or a defense. For example, if a statute makes it an offence to carry out same action without, for example, a specific permit, it is not entirely clear whether the possession of the permit is a defense to the charge, or whether lack of a permit is an element of the offence. If it is a defense, then presumably s.101 will apply, and the  burden of proving that he had a permit will fall on the defendant.

If lack of a permit is an element of the defense, then most probably, it will be for the trial to prove. Following Wilmington we may wait for the courts to construe such statutes to the assistance of the defendant, but this has not always been the case. In R v Edwards (1975)[9], the Court of plea held that it was logical to impose on a motorist the burden of proving that he had a driving license. The offence was comparatively minor, the ‘defense’ easy to verify, and the interests of society very much in favor of prosecuting offenders. Edwards shows very clearly that the courts were geared up not only to accept the presence of a reversed burden of proof, but in fact to expand the situation giving rise to a reversed burden of proof outside the strict wording of the statute. Some commentators interpret Edwards as creating an omission to the presumption of innocence in definite cases, particularly minor, rigid offences where the facts could be proved more readily by the defendant than disproved by the prosecution. Instead, the finding in Edwards_ was to be taken as a ‘lead to construction’. In Hunt the middle issue was whether, in a case where possession of a forbidden drug in one form was lawful and in another form was not, the  burden of proving that the drug was in a exacting form was on the defendant or the prosecution. The House detained in that case that the form of the drug was one of the basics of the offence, and had to be proved by the prosecution; but the judgments also made it apparent that there would be circumstances when, having look upon to wording of the provision as a whole, and the nature of the mischief it sought to prevent, it would be justified to place the burden of proof on the defendant[10]. The judgment did point out, on the whole, that such circumstances should ‘exceedingly rare’, and that one should not readily assume that Parliament had intended to put a burden of proof on a defendant, and that in all the cases where this interpretation had been adopted, it would have been very easy for an innocent defendant to discharge the burden of proof.

In 2005, the European Group on Tort Law (EGTL), in a widely acclaimed effort to contribute

To the further harmonization of the law of tort in Europe, published its Principles of European

Tort Law (hereafter: the PETL or Principles).1 The PETL are meant to serve as common principles of ‘European tort law’ (if that already exists at all) and as the starting point for the future discussion on the possible harmonization or even unification of tort law in Europe.2

Under these Principles, especially in cases of liability based on fault, the  burden of proving Fault is in some instances ‘relaxed’ or even ‘mitigated’ through the acceptance of a reversal of

The burden of proof. For one thing, the mere possibility of such a reversal is already somewhat

Surprising since the PETL are predominantly devoted to substantive law issues; the PETL do,

However, also contain a number of specific provisions on the subject of the burden of proof even

Though this is quite generally regarded as a procedural law topic. Next, the inclusion in the PETL of such burden of proof rules is highly relevant since in practice a reversal of the burden of proof leads to a tightening of liability. Of course, such a rule might (still) be accepted but, given its effect on the substantive outcome of tort cases, this should only be the case if and when such a

Decision can be normatively justified. Hereafter, I will try to show that these issues as to the

 Burden of proof merit our full attention because the much needed normative justification for the

Choices made in the PETL are not always sufficiently forthcoming. I will do so by contrasting the Principles with the rules on the burden of proof in Dutch tort law.

In the following contribution I will thus analyze the burden of proof rules in the PETL not

Only from a more technical point of view, but also from the perspective of the possible influence

That might have on the substantive outcome of tort cases. To highlight their content, importance

And possible inspirational force for a future European tort law, I will contrast them with their

Counterparts under Dutch tort law. I will try to answer the question whether the choices made in the PETL are justifiable and whether the Dutch tort system can – or maybe even should – seek motivation from these PETL.

In the PETL two provisions have been constant to the subject of this paper, i.e. the reversal of the burden of proof in certain cases of responsibility arising from fault on the division of the person addressed. As we will afterward discern, these rules serve as an omission to the internationally self-evident and non-articulated general rule that the burden of proof in the case of fault is borne by the claimant. The provisions laid down in Section 2 of Chapter 4 PETL read as follows:

Article 4:201 Reversal of the burden of proving fault in general:

(1) The burden of proving fault may be reversed in the light of the gravity of the danger presented by the activity.

(2) The gravity of the danger is determined according to the seriousness of possible damage in such cases as well as the likelihood that such damage might actually occur[11].’

 Related Case:

(Reversal of burden of proof)

Dr. D. H. Farrell (Appellant)          v/s       Margaret Snell (Respondent)[12].

The appellant, an ophthalmologist, performed surgery on the respondent to remove a cataract from her right eye.  After injecting a local anesthetic into the retro bulbar muscles behind the eyeball, the appellant noticed a small discoloration, which he stated on discovery was a very small retro bulbar bleed.  On palpitating the eye, he found that it was not hard, and there were no other signs of retro bulbar hemorrhage.  After waiting thirty minutes he proceeded with the operation.  Following the surgery there was blood in the vitreous chamber of the eye.  When the chamber cleared some nine months later the appellant was able to see for the first time that the optic nerve had atrophied, resulting in a loss of sight in the respondent’s right eye[13].  One possible cause of optic nerve atrophy is pressure due to retro bulbar hemorrhage.  Neither of the expert witnesses was able to state with certainty what caused the atrophy in this case or when it occurred.  The trial judge accepted the expert evidence that where there is bleeding other than the obvious pinprick of the needle, the operation should not be continued.  Relying on the decision of the House of Lords in McGhee v. National Coal Board, he concluded that the respondent had prima facie proved that the appellant’s actions had caused her injury and that the appellant had not satisfied the onus that had shifted to him.  The trial judge accordingly found the appellant liable in negligence.  The Court of Appeal dismissed the appellant’s appeal[14].

Result/Held:  The appeal should be dismissed.

As proof of causation in medical misconduct cases is often hard for the patient, it is pointless to accept either of the alternatives arising out of the McGhee case ?? that is, that the plaintiff only prove that the defendant fashioned a risk that the injury which occurred would take place, or that the defendant has the burden of disproving causation ?? since, correctly applied, the traditional values relating to causation are sufficient to the task.  Adoption of either of the future alternatives would have the result of compensating plaintiffs where a considerable connection between the injury and the defendant’s behavior is absent.  A plaintiff should not be rewarded by reversing the burden of proof for an injury that may very well be due to factors separate to the defendant and not the fault of anyone[15].


So after the long discussion we can say that “where does this leave the law?” Well, it makes clear that a law that imposes a burden of proof on the defendant need not repeatedly be read down into an evidential obligation. In some cases, a reverse burden of proof is balanced and fair. However, there is still no ultimate guidance on the criteria for deciding whether a reverse burden of proof is balanced or not.


 1. Scheibe, Benjamin D. 2003. “Claim of Reverse Engineering Doesn’t Alter Burden of Proof.” The Los Angeles Daily Journal 116 (October 2).

2. Twining, William and Stein, Alex, eds. 1992. Evidence and Proof. New York: New York University Press.

3. European Group on Tort Law, Principles of European Tort Law. Text and Commentary, 2005, Article x: xxx, Comment x); J. Spier & O.A. Haazen, ‘The European Group on Tort Law (Tilburg Group) and the European

Principles of Tort Law’, 1999 ZEuP, pp. 469 or, <>.

 4. Cf. H. Koziol, ‘Die “Principles of European Tort Law” der “European Group of Tort Law”’, 2004 ZEuP, p. 234.

5. General rule on the apportionment of the burden of proof I. Giesen, Bewijs en aansprakelijkheid, 2001, particularly pp. 75-108,

and (for tort law in particular) pp. 112-130; W.D.H. Asser, Bewijslastverdeling, 2004, p. 59 et seq.; P. Widmer, ‘Comparative Report on Fault

 6. Basis of Liability and Criterion of Imputation (Attribution)’, in: P. Widmer (ed.), Unification of Tort Law: Fault, 2005, no. 66; R. Stürner,

7. ‘Beweislastverteilung und Beweisführungslast in einem harmonisierten Europäischen Zivilprozeß’, in: G. Hohloch et al. (eds.), FS für Hans

8. Stoll zum 75. Geburtstag, 2001, p. 692, and Giesen, supra note 4, nos 4-5.

9.Cross, Sir Rupert.  Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper.  London:  Butterworths, 1985.

 10. Fleming, John G.  “Probabilistic Causation in Tort Law” (1989), 68 Can. Bar Rev. 661.

 11. Great Britain.  Royal Commission on Civil Liability and Compensation for Personal Injury.  Report, vol. I.  London:  H. M. Stationery Off., 1978.

 12. Harvey, David M.  Medical Malpractice.  Indianapolis:  A. Smith, 1973.

 13. Louisell, David W.  Medical Malpractice, vol. 3.  By Charles Kramer.  New York:  Matthew Bender, 1977?1990.

 14. Posner, James R.  “Trends in Medical Malpractice Insurance, 1970?1985”, 49 Law & Contemp. Probs., Spring 1986, p. 37.

 15. Robinson, Glen O.  “The Medical Malpractice Crisis of the 1970’s:  A Retrospective”, 49 Law & Contemp. Probs., Spring 1986, p. 5.

 16.Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 9.  Revised by James H. Chadbourne.  Boston:  Little, Brown & Co., 1981.

[1] burden+of+proof

[2] burden+of+proof

[3] burden_of_proof

[4] See S.2 the homicide act (1957)

[5] See S.139 (4) criminal justice act (1988)

[6] burden_of_proof

[7] burden_of_proof

[8] See s.101 of the Magistrates’ Courts Act (1980)

[9] See case study R v Edwards (1975)

[10] burden of proof

[11] European Group on Tort Law, Principles of European Tort Law. Text and Commentary, 2005, Article x: xxx, Comment x); J. Spier & O.A. Haazen, ‘The European Group on Tort Law (Tilburg Group) and the European

Principles of Tort Law’, 1999 ZEuP, pp. 469 or, <>.

Cf. H. Koziol, ‘Die “Principles of European Tort Law” der “European Group of Tort Law”’, 2004 ZEuP, p. 234.

[12] See case study Dr. D. H. Farrell v/s Margaret Snell.