The Gazette 1988

JULY/AUGUST 1988

GAZETTE

St ray ing An ima l s: the Burden of Proof by: Gerald J. Needham, B.A., Barrister-at-Law

fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person; but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge w i th respect to the fact to be proved wh i ch may be pos ses sed by t he pa r t i es respectively." In District No. 3, District Justice Patrick J. Brennan sees Section 2(1) of the 1985 Act as creating a res ipsa loquitur presumption. He would say that where a plaintiff

exists or a prima facie case has been proved. The presumption of negligence, res ispa loquitur, would therefore shift the burden should it exist in a particular case. Reliance can be placed on this d o c t r i ne in place of f u r t h er evidence of negligence if a plaintiff suffers damage as a result of something, which is under the exclusive control of the defendant or his servants, getting out of such c on t r o l. This d o c t r i ne was explained by Erie, C . J., in Scott - v- The London Dock Co. (1865) 3 H. & C. 596 at 601 ". . . where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in t he absence of explanation by the defendants, that the accident arose from want of care". The burden would also shift to the defendant where one of the matters to be proved by the plaintiff lies peculiarly within the knowledge of the defendant - that is where, if a negative averment is made by a plaintiff which is peculiarly within the knowledge of the defendant, the burden of rebutting such averment lies upon the defendant. The operation of this "peculiar knowledge" maxim can be seen in The General Accident Fire & Life Assurance Corporation -v- Ftobertson [1909] A.C. 404, where the p l a i n t i ff alleged t hat the defendant Corporation had not registered him as a policyholder before a certain date. The Court held that the onus of proving such registration lay on the defendants, since the matter was one of internal organisation. In Stephen's Digest of the Law of Evidence, 9th ed. (Art. 96), the rule is stated as follows: " The burden of proof as to any particular

Section 2(1) of the Animals Act, 1985, states " So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road, is hereby abolished." This section is, I believe, causing problems of interpretation for District Justices in the absence of precedent case law. Prior to its enactment and following the maxim laid down in Sear/e -v- Wallbank [1947] A.C. 341, negligence did not attach to l a n d own e rs wh o se an ima ls wandered on to highways and caused damage thereon. Section 2(1) of the 1985 Act removes this immunity and makes l andowne rs liable for damage caused by their animals straying from their lands on to highways, but g r ounds t h at l i ab i l i ty in neg l i gence. The Law Re f o rm Commission (Working Paper No. 3 of 1977) r e c omme n d ed t he imposition of strict liability on landowners for straying animals; however, the legislature in its w i sdom decided not to impose strict liability, but dealt w i th the matter as set out in the section referred to. The burden of proof is the obligation upon a party to establish by evidence the facts which are in issue in a particular case. In civil cases the burden lies upon the plaintiff who would seek to affirm a particular issue unless the defendant raises another issue e.g. contributory negligence, when the onus of proving this defence would shift to him the defendant. The burden of adducing evidence rests upon the party who would fail if no ev i dence at all, or no more evidence, were given. This burden of adducing evidence shifts from the party who affirms to his opponent where a presumption

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