In this section, we turn to the practical matter of proving whether defendant failed to do what was required to avoid breaching a duty of care.

It is a basic principle that the burden of proving facts lies on the person alleging those facts. So the plaintiff must normally produce evidence that the defendant failed to do what was required to prevent foreseeable harm.  This may not be easy to do.

In many cases, there is no direct evidence of what the defendant actually did or did not do. But it may be possible to draw the necessary conclusions indirectly, by inference.  The following pages explain the likely issues.

Swain v Waverley Municipal Council (2005) 220 CLR 517