Legal Update July 2014


The various “burdens” of proof are:      

Legal Burden Of Proof

The legal burden of proof means the burden to satisfy the court of the existence of some fact in dispute and is placed on the party who asserts the existence of any fact. This burden does not shift. 

Evidential Burden

On the other hand, the evidential burden of proof is not an obligation to prove that a particular fact exists. Rather, the evidential burden of proof is a burden on a party to produce evidence to support or rebut an assertion. Unlike the legal burden of proof, the evidential burden of proof shifts between the parties. Technically, there is no obligation to discharge the evidential burden of proof but there may be consequences in not doing so.

Tactical Burden

Finally, there is the tactical burden which is closely linked to the evidential burden of proof. The tactical burden arises after a party has discharged his evidential burden because once a party has discharged the evidential burden, it is a tactical decision for the other party whether or not to produce rebuttal evidence. That party can call rebuttal evidence or take the consequences of not doing so, which may not necessarily adverse.

Pacific Marine & Shipbuilding v Xin Ming Hua Pte Ltd

The Singapore High Court recently considered the application of the burden of proof in the case of Pacific Marine & Shipbuilding v Xin Ming Hua Pte Ltd [2014] SGHC 102.[Note: At the date of this article, an appeal against the first instance decision is pending.]

In this case, the Plaintiff shipbuilders had entered into a contract with the Defendant for the supply of four marine propulsion units.  Two of the propulsion units were installed on a vessel being built by the Plaintiff. Subsequently, these two propulsion units were observed to display erratic and excessive movements when operated under certain conditions (the “jiggling problem”). 

The Plaintiff’s claim was for breach under the Sales of Goods Act and/or the contract for the defective propulsion units. The Defendant argued that the propulsion units were not defective and that the jiggling problem could be attributed to other external cause(s).

The case essentially turned on what was the cause of the jiggling problem. It was common ground that there were only three possible causes, one of which was that the two propulsion units themselves were defective.

The court firstly held that the legal burden lies with the Plaintiff to prove that the propulsion units were defective.  Moving on to the evidential burden, if the Plaintiff can raise a prima facie case that the propulsion units were defective then the evidential burden shifts to the Defendant to show that the propulsion units were not defective.

The next point the court held was that it is sufficient to establish a prima facie case if the Plaintiff can eliminate the other possible causes of the defect. The Plaintiff need not pinpoint or prove the specific faulty component within the propulsion units; it is sufficient if it can be logically proven by the process of elimination that the defect lies in the propulsion units.

On this basis, the court found that the Plaintiff, while not being able to prove directly the cause of the problem, did so indirectly by eliminating the other two possible causes of the jiggling problem.

Significance of the Case

The case shows the interplay amongst the various burdens of proof. It is also noteworthy that the Plaintiff was able to succeed in its claim without directly proving its primary allegation but rather, by a process of elimination. It highlights the importance of considering, at the outset of a case, the essential elements and the evidence needed to establish or defend a claim.


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This update is for general information only and is it not intended to constitute legal advice. JTJB has made all reasonable efforts to ensure the information provided is accurate at the time of publication.