Dealing with Evidentiary Deficiency in Tort Law

24 Pages Posted: 7 Mar 2019

See all articles by Wannes Vandenbussche

Wannes Vandenbussche

Institute for the Law Of Obligations, KU Leuven

Date Written: February 15, 2019


In continental-Europe, each party carries the burden of proof for those elements that constitute the basis of its claim. In tort law proceedings, this implies that an injured party must prove the factual elements underlying fault, damage and causation, whereas the alleged tortfeasor must demonstrate that he is not or only partly liable. Often, parties are not able to produce evidence of the facts they are relying on, while those parties are not to blame for these difficulties. In principle, if a judge still has doubts about the truth behind a factual allegation at the end of a legal procedure, he will decide against the party carrying the burden of proof. However, this outcome is often considered to be unjust in cases where a party did not contribute to this lack of evidence. Although trial courts have been endowed with – or have developed themselves - evidentiary techniques to confront these problems, they are still struggling with the question whether or not to intervene and in which way they should do so.

The thesis of this article is that a proper understanding of the concept of evidentiary deficiency, which goes beyond the singularities of one legal system, can serve as a useful means to explain and justify why courts could facilitate the burden of proof under certain conditions. Moreover, it is argued that an identification of different subtypes of evidentiary deficiency can provide guidance on which evidentiary technique is appropriate in a given case. Above all, this article creates an awareness that evidentiary deficiency constitutes a real problem and that remedying this predicament is a matter of significant importance.

Keywords: Burden of proof, evidentiary deficiency, standard of proof, presumptions, document discovery, reversal of the burden of proof, lowering the standard of proof

Suggested Citation

Vandenbussche, Wannes, Dealing with Evidentiary Deficiency in Tort Law (February 15, 2019). Available at SSRN: or

Wannes Vandenbussche (Contact Author)

Institute for the Law Of Obligations, KU Leuven ( email )

Tiensestraat 41
box 3445
Leuven, B-3000

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