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Burden of Proof
Civil Cases
Presented By
Mariette Peters

General Rule
Parties?
Plaintiff v Defendant

General Rule
What is the burden and
standard of proof on the
plaintiff in civil cases?

General Rule
What is the burden and
standard of proof on the
defendant in civil cases?

General Rule
What is the meaning of
balance of
probabilities?

Miller v Minister of
Pensions - Lord Denning
not as high as required in a
criminal case.. more probable
than not but if the probabilities
are equal, it is not discharged

Section 103
The burden of proof as to any
particular fact lies on that
person who wishes the court to
believe in its existence unless
it is provided by any law that
the proof of that fact shall lie
on any particular person
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Section 103
Negligence
What must the plaintiff prove?
Duty
Breach
Causation

Section 103

What must the defendant


prove?
No Duty
No Breach
No Causation
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Section 103

Any particular facts?


Contributory negligence
Volenti non fit injuria

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Section 103

What will be the burden


and standard on the
defendant when he raises
new issue?
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Section 103
Breach of Contract

What must the plaintiff prove?


Contract
Breach
Remedies

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Section 103

What must the defendant


prove?
No contract
No breach

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Section 103

What else can defendant raise?


Misrepresentation?
Non est factum

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Section 103

What will be the burden


and standard of proof on
the defendant?

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Section 103
If any party raise a particular
fact, he has the legal burden
to prove that particular fact on
a balance of probability

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Section 103
What if that particular fact has a
criminal element to it?
Using premises for immoral purpose
Adultery
Cruelty
Desertion
Forgery
Fraud
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Section 103
Eastern Enterprise v Ong Choo
Kim
Blyth v Blyth
Adorna Properties v Boonsom
Boonyanit
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Section 103
Standard of proving a criminal
allegation in a civil case is still
balance of probabilities though
the degree required may be
higher

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Section 103

What about fraud?

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Fraud
Fraud

Pre-1997

1997

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Post-1997

Pre-1997
Cases were inconsistent
Balance of probabilities
Lee You Sin v Chong Ngo Khoon

Beyond a reasonable doubt


Saminathan v Pappa
Chu Choon Moi v Ngan Siew Tin
Datuk Jaginder Singh v Tara Rajaratnam
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1997
Ang Hiok Seng v Yim Yut Kiu
Civil Fraud v Criminal Fraud
Balance of probabilities v Beyond
Reasonable Doubt

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Ang Hiok Seng v Yim Yut Kiu


Where the fraud in civil
proceedings is based on a
criminal offence, then the criminal
burden of proof beyond a
reasonable doubt is applicable
but where the fraud alleged is
purely civil in nature, there is no
reason why the civil burden
should not apply
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Ang Hiok Seng v Yim Yut Kiu


Ong Ban Chai v Seah Siang
Mong

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Post 1997

What is the difference


between civil fraud and
criminal fraud?

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Post 1997
Eric Chan Thiam Soon v
Sarawak Securities Sdn Bhd
H Ct

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Post 1997

Yong Tim v Hoo Kok


Cheong

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Post 1997

Lee Way Fay v Lee Seng


Ein

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Chong Song v Uma Devi Kandiah


2011, CA
As noted in the very quotation from the Adorna
Properties's case, as quoted by the learned trial
judge, such standard of proof is in respect of
forgery. It is a different kettle of fish from fraud.
Despite identifying the core issue of the case, the
learned trial judge unfortunately started off on a
wrong footing.

It is trite law, that has been held and upheld by the


apex courts in this country that the standard of proof
for fraud, in civil cases, is beyond reasonable doubt.
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Other criminal allegations


Assault and battery
Borhan Haji Daud v Abd Malek
Hussin [2010] CA
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Section 106
Burden of proving fact
especially within knowledge.
When any fact is especially within
the knowledge of any person, the
burden of proving that fact is
upon him.

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Section 106
Res Ipsa Loquitur
What are the basic facts
to establish before the
doctrine of res ipsa
loquitur may be invoked?
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Section 106
If the doctrine of res ipsa loquitur
is successfully pleaded, how does it
affect the burden and standard of
proof on the respective parties?
MA Clyde v Wong Ah Mei

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Section 106
Whats the connection
between section 106 and
Res Ipsa Loquitur?

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David Chelliah v Monorail Malaysia


Technology Sdn Bhd & Ors

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mariettepet@gmail.com
mariette.peters@zulrafique.com.my
www.twitter.com/mariettegoh

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