Where two competing inferences of approximately equal probability are available to explain a plaintiff's injuries (motor vehicle accident vs assault), the plaintiff bears the burden of establishing the motor vehicle accident on the balance of probabilities and cannot succeed merely because one inference is marginally preferred. The requirement of 'due inquiry and search' under s 34(1) of the Motor Accidents Compensation Act 1999 (NSW) is not satisfied where prompt reporting to police was not shown to have been futile, even where the plaintiff's injuries may have impaired his capacity to act. The dissent raises an important question about whether the criminal standard for circumstantial evidence (requiring exclusion of all other reasonable hypotheses) was improperly imported into the civil standard.
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