Evidence – Prove it or lose it


Evidence. Interrogatories. Factual Investigations. Expert Witness. Discovery.

These are things which sound tedious, expensive and maybe confusing. But if you want to succeed in a legal action, you may want to read this. Why?

Anybody who has ever read a law text book or a court decision, or who has watched a murder movie or listened to a true crime podcast, would be familiar with the word “evidence”. It is such a crucial element to anything which requires something to be proven, yet, when faced with a request to provide evidence, one might be puzzled. What is it? How do I go about getting it?

In this article, Hari Gupta and David Giacomantonio aim to shed some light on the various types of evidentiary issues one might encounter in an ordinary claim and how one might go about providing evidence.


By definition, “evidence” may be defined as the available body of facts or information indicating whether a belief or proposition is true or valid.

In a legal context, the concept of evidence, or proof of a fact, is understood to mean the things [yes, obscure word intentionally used] a party to a legal dispute must show, demonstrate or refer to which confirms the basis for making and proving the allegation.

So, if Little Johnny was to tell his teacher that his dog ate his homework, and his teacher required evidence; then Little Johnny may produce reliably clear video footage of a canine consuming documentation which undoubtedly was the completed homework. For good measure, Little Johnny may also produce a sworn affidavit from an independent witness.

Witnesses, especially expert witnesses, go a long way in shaping the outcome. As mentioned above, battles are won or lost before the battle commences. The recent cases detailed below explain why.

But first, let’s look at some other definitions.


Onus of proof – Also known as burden of proof. This means ‘which party must prove their case, or a certain element of their case’.

Standard of proof – Sometimes called ‘evidentiary threshold’. This means ‘the extent to which one must go to prove something’.

Beyond reasonable doubt – This is the standard of proof in criminal matters. In the infamous OJ Simpson trial, the defence illustrated it as, ‘if it (the glove) doesn’t fit, you must acquit.’

Balance of probabilities – This is the standard of proof in civil matters. In such matters, a party needs to show that ‘it is more likely than not’ that what it is saying is correct.

Reasonably arguable case – This is a phrase that most workers compensation lawyers in Tasmania will be familiar with. This standard of proof only requires a party to show that it has a case which has a reasonable chance of success. In other words, the party’s case only needs to be reasonably arguable and need not be strong or compelling.

We now turn to some recent, practical examples.

Practical examples

Four cases

In Townsville City Council v Hodges [2023] QCA 136, the Plaintiff tripped in a “hole”, causing her to fall, while she was walking through a Council park. She succeeded at trial but failed once the Council appealed.

In Carusi v St Mary’s Anglican Girls School Inc [2023] WADC 103, the Plaintiff was injured when she fell down a set of auditorium steps at a school. The Plaintiff’s legal team engaged an ergonomics expert. The Defendant succeeded.

In Tsiaras v SPI Management Pty Ltd [2023] VCC, the Plaintiff was injured when she fell while dancing on the dance floor at a function centre. The Defendant challenged the Plaintiff’s allegations that streamers on the dance floor caused her fall. The Defendant succeeded.

In Pringle v Tabloid Pty Ltd [2023] WADC 18, the Plaintiff experienced mental health issues after consuming hot chips, bought from the Defendant’s shop, which had been accidentally laced with caustic soda. The Defendant challenged the Plaintiff’s mental health issues at trial. The Plaintiff succeeded.


Other than four people sustained injuries, there is no obvious common thread which binds the abovementioned decisions, all handed down this year. However, when one reads the judgments, all four decisions turned somewhat on the evidence, or lack thereof, presented by a party at the hearing.

As far as the evidence is concerned, these decisions demonstrate that a party should thoroughly investigate, allege and prove the mechanism of the incident which brought about the incident. Only by undertaking such a process can a party determine what evidence is necessary, and then produce that evidence at trial.

We will not summarise the cases. Rather, we will leave the reader with the following thoughts:

  • How do you prove precisely how an incident occurred?
    • How large or identifiable was the hole into which the Plaintiff fell?
    • Did the Plaintiff slip on streamers or did the streamers tie up her legs?
    • Did the Plaintiff misjudge the steps because of the way they were built or due to inadequate lighting?
  • Have you ‘proofed’ the Plaintiff, thus ensuring that he/she will give evidence proving how the incident actually occurred?
  • How do you prove that the Plaintiff has suffered harm as a result of the incident?
  • What other evidence do you need to bolster the Plaintiff’s evidence?
  • Can a builder, engineer, building designer, party planner or event manager give evidence about the design and building of the site, or the slipperiness of streamers on a wooden dance floor?
  • What evidence will you present to the court to substantiate your allegation that a person cannot sustain a mental health injury after consuming hot chips laced with a toxic cleaning agent?

Also, the decisions confirm that it is risky to prosecute, or defend, a claim believing that a court will assume certain allegations. The four judges made findings based upon the evidence presented, rather than buying into a party’s allegations on “should haves” and “could haves”.

Finally, the decisions also confirm that it is necessary, in certain circumstances, to brief an appropriate expert about allegations. One decision caused the Judge to comment about finding an expert to give evidence about the slipperiness, or otherwise, of streamers, while another decision caused the Judge to wholly question the expert’s expertise.

Take aways

A lawyer handling a dispute must assess the liability and quantum risks flowing from the facts in order to understand what must be proven. That, in turn, allows the lawyer to determine what evidence must be called and tested to prove, or disprove, the key allegations and facts.

At Page Seager, our litigation lawyers have the experience and skills to work with our clients to ensure all claims have been carefully considered and the necessary evidence has been obtained. By doing so, we assist our clients to achieve sensible commercial resolutions or push matters to trial if need be.

After all, as Sun Tzu also stated – “If ignorant both of your enemy and yourself, you are certain to be in peril.”

More information

If you have any questions, please do not hesitate to contact us.

David Giacomantonio
M: 0418 154 138
E: dgiacomantonio@pageseager.com.au

Hari Gupta
Senior Associate
T: (03) 6235 5133
E: hgupta@pageseager.com.au

Published: 4 October 2023

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