Soft factors eg effect on environment as in romeo

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Soft factors’ – e.g. effect on environment (as in Romeo ) – included in ‘(amongst other relevant things)’ in s 48(2) introductory clause. Used for things not in writing. Torts Lecture Notes 16
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BURDEN OF PROOF (a) Proof The onus is on the plaintiff to prove that, on the balance of probabilities (more than 50% likely, every element must be proven more likely than not to be correct), the defendant’s negligence caused his or her injuries. Proof by inference is acceptable proof. Can use all kinds of evidence: o Direct evidence (best kind of evidence) - (independent) witness who saw what happened. o Circumstantial evidence ( used if there’s no direct evidence (no witness)) - Evidence from which you draw an inference. However, often more than one way to interpret it. Where circ evidence giving rise to conflicting inferences, P must still prove case, their inference is the most probably (likely) and on the basis their explanation is more likely than not of is what happened. o Circumstantial evidence: evidence relevant because allows jury to draw an inference of what happened (Eg. Witness saw someone standing over a body with a smoking gun. Jury will infer that they shot the person on the floor). Circ ev is inadmissible but for information to be useful must show 2 things: 1. Info u want to be drawn is the most probable inference that can be drawn from the set up. 2. Must show more probable than not that that’s what happened, balance of probability (civil case). o If can prove this then can use circumstantial evidence. Proof using circumstantial evidence. o Holloway v McFeeters (1956) 94 CLR 470 (CB 279): (Old HC case) Woman suing because husband had been killed in a hit and run accident. No witnesses, man was dead and the driver drove off. Sue driver in negligence. Case dependent on circ evidence. Knew where body was on the rd and skid marks. From pos of those things, could tell man had been hit in the middle of the road, had been carried for a while by the car and then dropped off. Could tell that from physical evidence. But to find negligence by the driver need to draw inferences. Would p be allowed to do that? Jury said yes. This evidence shows this driver was negligent. Trial judge said no, ridiculous, not enough evidence and not allow judgment to go through, despite what jury said. P appealed to High Court: has she proven d negligently killed her hubby? Was driver negligent? If he was in the middle of the road dead, how was he killed otherwise? Driver negligent coz he shouldn’t have hit him. It was nighttime- visibility. Turn headlights on, if they’re not on then automatically negligent. How fast should d be driving? Not the speed limit but speed a reasonable person would be driving. Driver should be driving at a speed that gives them enough time to stop. Could’ve been playing chicken in the middle of the road.
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