Burden of proof
In plain English: the burden of proof decides who has to prove something and how convincingly. In a civil injury claim, you as the injured person usually have to show that your version is more likely true than not.
The standard: more likely than not
Civil claims don't use the criminal standard of "beyond reasonable doubt". In the US the test is usually called the preponderance of the evidence. In England and Wales, Scotland and Canada it is the balance of probabilities. Both mean the same thing in practice: if the scales tip even slightly in your favour on a point, you've proved it.
That is far lower than many people expect. You don't need certainty, a confession or an eyewitness. A consistent account backed by photos, medical records and a sensible explanation can be enough.
What you usually have to prove
- Duty. The other person owed you a duty of care. For drivers and businesses this is rarely disputed.
- Breach. They fell below the standard of a reasonably careful person.
- Causation. Their carelessness caused your injury.
- Loss. What that injury cost you, from bills and lost wages to pain and suffering.
Many claims are won on fault and then argued hard on causation and loss, so evidence for points 3 and 4 matters as much as proving the crash wasn't your fault.
What the other side has to prove
The burden shifts when the defendant raises certain defences. If the insurer says you were partly to blame, failed to wear a seatbelt, or didn't take reasonable steps to recover (failure to mitigate), it is usually up to them to prove it. This is worth knowing when an adjuster simply asserts that you share fault. Ask what evidence supports that.
In a rear-end collision, you show the other car hit you from behind while you were stopped. That usually satisfies breach. The insurer then claims your brake lights weren't working. Unless they can prove it, for instance through an inspection report, that argument shouldn't reduce your claim.
When the facts speak for themselves
Sometimes an accident couldn't normally happen without someone's negligence, and the cause was under the defendant's control, such as a load falling from a crane. Courts in the US and UK recognise a principle called res ipsa loquitur that can help you in these cases, although how much help it gives varies by place.
Because the burden starts with you, missing evidence usually counts against your claim. Late medical visits, lost photos and unexplained treatment gaps make it harder to tip the scales.
Next: causation · negligence · what to do after an accident.
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General information, not legal or medical advice. Rules differ between US states, the UK and Canadian provinces, so check the law where your accident happened. How we write and check · Legal disclaimer