Page 68 - Liability Insurance IC74

The Insurance Times

Ans: (a) The onus of proof - under the common law, the
burden of proving negligence rests with the person
who has suffered the injury or damage. In other
words, he has to establish that the defendant owed
him a duty of care, and that this duty was breached
and the breach was the proximate cause of the injury
or damage.

However, circumstances surrounding the accident
may be such as to lead to a presumption of
negligence on the part of the wrong doer. For e.g,
if a passerby is injured by a flowerpot falling from
the balcony of the private residence, it is not
necessary for him to prove negligence on the part
of the owner of the private residence so long as he
can prove the occurrence of the accident itself.

The burden is shifted to the negligent person than
to prove that he was not negligent. This is according
to the common law rule that the 'thing speaks for
itself'. According to this rule the mere fact of the
accident constitutes prime of his evidence of
negligence. The role is applicable whether accident
is more probably due to negligence than any other
course and the circumstances leading to the accident
are well within the control and management of the

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