Member State, and sometimes outcome will be determined by which of the parties bears the burden of proof. If all of the facts are known, which party bears the burden of proof should not affect the outcome of the case. It will not matter whether it is for the claimant to prove fault, for example, or for the defendant to disprove it; the court will be able to make a determination as to whether there has been fault or not, based on the facts as they have been found. But where there is uncertainty as to a salient fact, the burden of proof may well determine outcome. Where, for example, a claimant claims damages for illness caused by food poisoning, it may be impossible to show what (s)he has eaten that has caused the illness. In such a situation, if (s)he bears the burden of proof, it will not be possible to satisfy the court that the defendant supplied the food and therefore that the claim should succeed; but if the defendant bears the burden of proof, it will not be possible to show that it was not the source of the illness. Similarly, where there is a lack of documentation as to – for example – inspection regimes, this may be a determinative feature of a case where a defendant bears the burden of proof. The law of England and Wales has developed an interesting method of dealing with this conundrum. It is for the party pleading a fact to prove it; thus a claimant must prove that his or her cause of action is made out, whereas a defendant must prove any defence it raises. In the context of a claim involving a trip and fall in a hotel, for example, it is for the claimant to prove a breach of the applicable standard local to the hotel, but if the defendant asserts that the accident was due to carelessness on the part of the claimant, it is for the defendant to show that the claimant was indeed negligent and that this caused or contributed to the accident. This legal rule is known to every English law student as ei incumbit probation qui dicit, non qui negat (‘he who asserts must prove’). Over time, the courts identified that this legal rule was capable of causing injustice in particular circumstances. Where for example a claimant had to prove a breach of an inspection regime, and a defendant asserted that the regime was adequate and properly implemented, but failed to disclose any documents in support of this assertion, the claimant might well fail to prove his or her case. In such a circumstance, the courts developed an evidential rule that where information resides solely within the custody of a party, it is for that party to satisfy an evidential (not a legal) burden to produce the evidence capable of proving the facts on which either party might rely. Conceptually the legal burden of proof remains with the party seeking to prove the fact, but 25 REVERSAL OF THE BURDEN OF PROOF IN PACKAGE TRAVEL CASES
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