What is the burden of proving non-pecuniary loss to a plaintiff in a motor vehicle accident case?

From an analytical and theoretical perspective, therefore, the question of whether the plaintiff has proven its non-pecuniary loss is a different situation than that facing MacDonald J. in McElroy v. Embleton. In that case, the burden was on the defendant to prove contributory negligence on the part of the plaintiff and it was decided by the jury that burden had been discharged. MacDonald J. held that there was no such evidence and the defendant simply could not have and did not discharge the burden upon it. It would have been quite a different situation if the jury had found that there was no contributory negligence and the trial judge was asked to reject that verdict on the basis that there was no evidence to support it.