Bearing the burden

It is trite law that a claimant in a personal injury claim bears the burden of proof on most important issues, including those of duty, breach, damage and causation. This burden carries with it an obligation on the part of the claimant to adduce evidence from which the court can be convinced (on a balance of probabilities, of course) that the case he is advancing has been made out. As a general proposition, therefore, if evidence is simply not available then that is likely to represent a problem for the claimant rather more than for the defendant. That basic statement of principle can, however, be subject to a more nuanced approach in some cases. What, for example, of the position where the non-availability of evidence is, of itself, a consequence of the defendant’s breach of duty. That was an issue which the Court of Appeal needed to address in Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ