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2.3.6 Standard of proof


In assessing the unclear or apparently contradictory evidence relating to liability, the Delegate's judgements must be based on the civil standard of proof, i.e. 'on the balance of probabilities'. Note that none of the compensation Acts (except MRCA) permit the VEA test of 'reasonable hypothesis' for any category of employment. The 'balance of probabilities' test, which applies in all military workers compensation cases in fact, excludes guesses, conjectures or hypotheses. On the contrary, the matter contended must be demonstrated to be 'more likely than not'.

Delegates should also be guided by the long-standing principle that the compensation Acts have been established for the benefit of the employee – i.e. it is 'beneficial legislation'. This means if, after the above 'probability test', the employee's case remains indeterminate (i.e. where issues are finely balanced and involve contradictory evidence of apparently equal weight) the employee may be given the benefit of the doubt.

This principle definitely does not operate in the absence of independent evidence supportive of the employee's case. Applications which founder upon the absence of (or inadequacy of) supporting evidence should be decided in the negative.