You Better Back That Up! The Briginshaw Principle

The Briginshaw principle is derived from comments made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336.

In civil proceedings, to be successful a plaintiff must lead evidence that establishes their claim on the ‘balance of probabilities’.

The Bringinshaw does not introduce a separate standard of proof into civil proceedings. The principle applies to require that more convincing evidence is required to establish an allegation on the balance of probabilities if the allegation is of a particularly serious nature. The principle cautions against adopting a purely mathematical analysis of the balance of probabilities and suggests that the decision maker should feel actual persuasion that the evidence establishes the allegation.

Background

Mr Briginshaw applied for a divorce from his wife and relied on allegations of adultery in support of his application. Mr Briginshaw alleged that his wife had attended dances with another man, who also drove her home and kissed her.

At first instance, Martin J of the Supreme Court of Victoria applied the criminal standard of proof to the matter. That is, His Honour considered that Mr Bringinshaw had to prove his allegations of adultery beyond a reasonable doubt. Mr Briginshaw appealed the decision on the basis that Martin J applied the wrong standard of proof (‘beyond reasonable doubt’ instead of ‘on the balance of probabilities) in deciding whether adultery had been proved.

The Appeal

The High Court dismissed Mr Briginshaw’s appeal. The Court found that the primary judge had applied the wrong standard of proof to the allegations. However, in dismissing the appeal the High Court found that the primary judge would not have found in Mr Briginshaw’s favour even if the lower standard of proof (on the balance of probabilities) had been applied to the allegations of adultery.

In his judgment, His Honour, Dixon J, commented that:

“…The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer… In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

Subsequent application

The Hight Court provided further comment on the principle in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at 2:

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to a civil litigation has been guilty of such conduct.”

Statutory Equivalent

The Briginshaw Principle has since been enshrined in statute. Section 140(2) of the Evidence Act 1995 (NSW) provides that when deciding if a case has been established on the balance of probabilities the Court may

take into account –

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

Takeaways

The Bringinshaw principle can impact various civil proceedings. For example, proceedings concerning allegations of:

• sexual abuse;
• gross medical negligence;
• serious and wilful misconduct.

If you have a civil claim that requires establishing a serious allegation, obtain legal advice about your evidentiary obligations.

Feel free to contact the Insurance and Dispute Resolution team at Chamberlains Law Firm.

 

*This article was prepared with the assistance of Elinore Rema.