The burden of proof in insurance claims

Abstract

The litmus test of any insurance contract is in the administration and eventual settlement of a claim upon it. When entering into any type of insurance contract the policyholder would not be buying a tangible commodity) the quality of which he can test immediately. In the event of a contingency insured against, the insured would have a right to make a claim under the terms of the insurance policy. From the time of lodging the claim till the date of its settlement, the policyholder would have to satisfy his insurers in respect of several obligations that generally arise from the contract. It is a basic legal principle that any person who contends that he has a valid claim against another must prove such a claim. From the Latin maxim onus probandi incumbit ei qui dicit non ei qui negat arises what is commonly referred to as the legal burden of proof. In making a claim the insured has to prove his claim to the satisfaction of his insurers, or ultimately the court. We find this principle clearly endorsed in Section 562 of the Code of Organisation and Civil Procedure which states that 'Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it. The rule is primarily adopted on the basis that he who seeks the aid of the law should be expected to be the first to substantiate his case. It is probably for this reason that this principle is sometimes wrongly interpreted to mean that the burden of proof must always rest on the plaintiff, but the real effect of the rule is that even should the defendant allege a fact, the onus would rest on him to prove that particular fact. The onus of proof may therefore be on one party to the cause in respect of one issue, and may shift on to the other party in respect of a different issue. In order to fmd where the legal burden of proof lies one would have to revert to what each party will be alleging at a particular point in the cause.