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Unformatted text preview: ourt of Australia Transcripts, per Kirby J.
(1938) 61 C.L.R. 286; also Nexus Minerals NL v Brutus Constructions Pty Ltd & Anor  F C A 926
where the Federal Court has recently strongly reiterated the position that "arightto claim damages arises
on proof of the breach [or tort] itself, albeit only nominal damages if the claimant is unable to prove actual
loss or damage suffered by reason of the breach [or tort]." 198 T he burden of proof to be born by the plaintiff in civil litigation is "on the balance of
probabilities".14 A party in a civil action must convince the court that it was "more
probable than not" that each salient element of the plaintiffs case occurred in order to
satisfy the burden placed upon them by the courts. This burden is not static and may shift
back and forth. Where a plaintiff has raised an issue it must thereafter be answered by a
defendant. In rebuttal to a claim by a plaintiff, a defendant then bears a burden of proof.
Afterwards a plaintiff then has an opportunity to answer the defendant's rebuttal. Courts
must be convinced that each element in a civil action occurred on the balance of probability, and if a plaintiff fails, even slightly, s/he may fail altogether. The plainti
must, on this standard, prove: that a relationship exists (a contractual relationship or a
duty of care in tort); that the defendant breached this relationship, either by a breach of
contract, or breach of duty of care; that the breach caused an injury to the plaintiff; the
losses through the injury are not too remote to preclude recovery, and the nature or
quantum of the loss, in money terms. Any of these elements which the plaintiff fails to
prove to the requisite standard, with the possible exception of the quantum of damage,
will be fatal to the plaintiffs case. The fact that evidence is led which establishes a
possibility that the defendant's breach or tort 'caused' the loss is not enough.15 Chapter Five pointed out that the evidence which courts require essentially must be
concrete or tangible in nature, and must withstand ardent criticism from an adversary
seeking to destroy the legal credibility of any evidence adduced by a plaintiff. Although
the plaintiff may easily show that the defendant committed some culpable act, the
question of whether the defendant caused the loss to the plaintiff is more difficult to This statement is n ow entrenched in statute in s. 140 (1) of the Evidence Act 1995 (Cth). 199 a nswer. T h e issue of causation is not certain in law, and has undergone recent
restatement which may render discovery of any underlying principle more illusive. The
literature on the subject, which is extensive, will be examined in the next section. Proof of Causation "In order to succeed, it [is] necessary for the plaintiffs to show that, in the relevant sense
the defendants' breaches caused the loss that they claimed."16 In other words, there must
be a causal link between the act, breach, or omission of the defendant, and the loss suffered by the plaintiff in order for the court to consider that it would be unjust to fail t
award compensation.17 This causal link must be one which is recognised in law. Causal
links may be related to place, i.e., an event occurred, for instance, at the defendant's
place of work; related to time, for example a defendant's action prevented an executive
from executing a valuable contract by preventing timely attendance at a business meeting
drawn for the purpose of the contract execution whereby a competitor was then awarded
the contract because of the perceived lack of responsibility in the tardy attendance and,
finally, related to choice, where a defendant chooses one course of action over another,
resulting in injury and loss to a plaintiff. The issue of causation in law is a limiting mechanism. "Proximate cause is the
limitation which the courts have been compelled to place, as a practical necessity, upon 15 Seltsan Pty. Ltd. v McGuiness; James Hardie & Coy Pty. Ltd. v McGuiness  N S W C A 29 (7 March
2000), Files 40456/97 and 40463/97. St. George Club Ltd. v Hines (1961-62) 35 A.L.J.R. 106; Tubemakers
v Fernandez (1976) 50 A.L.J.R. 20.
Alexander v Cambridge Credit Corporation Ltd. (1987) 9 N.S.W.L.R. 310 at 319 per Mahoney JA.
S ome of the losses, even though caused by a defendant's culpable act, will never be recompensed.
Honore states it, "It is only exceptionally that the law transfers to a defendant the wholeriskof the loss,
whatever its cause, that would not have occurred but for the defendant's conduct. Honore, 1993, p. 3.
Treitel 1990, and Carter, Harland, and Lindgren 1990, also agree with this portrayal; also Alexander v
Cambridge Credit Corp. Ltd. (1987) 9 N.S.W.L.R. 310 at 331 per Mahoney JA. 200 the actor's responsibility for the consequences of his conduct." M e c h a n i s m s of limitation are not restricted to simple causation, and "the legal principles of certainty,
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