21 VR 118LEEKS v XYCourt of AppealBuchanan, Vincent and Redlich JJA3 September 2007, 20 February 2008[2008] VSCA 21Evidence — Standard of proof — Burden of proof — Civil proceeding — Damages — Sexual assault — Claim by patient against psychiatrist — Gravity of allegations — Strength of evidence — Clear and cogent proof required — Defendant’s denials — Credibility of parties — Whether open to trial judge to find plaintiff had discharged burden.
XY sued a psychiatrist, L, in the County Court for damages alleging that he had sexually assaulted her in eight consultations which had occurred in 1979-80. In cross-examination, it was put to XY that she had concocted her claim for financial reasons, and that when she had read a newspaper article about L in 2002 she was in a state of impoverishment because of a firmly entrenched gambling habit. In response to the suggestion that she had told no-one about the allegations until she consulted her solicitor in 2002, XY repeated her evidence-in-chief that she had told her sister-in-law in 1982. When the sister-in-law was called to give evidence of her conversation with XY, it was objected that the evidence was inadmissible because it had not been suggested to XY that her evidence about the conversation was a recent invention. The trial judge ruled that the evidence was admissible. L gave evidence denying the plaintiff’s allegations. He said that he could not recall treating XY and that he no longer had any record or note of any consultation that may have occurred. In his reasons for judgment, the trial judge noted that L’s credit was not really impugned in any meaningful way and that XY’s denials of the suggestions that she had concocted her claim were credible and convincing. Having held that L had, for the purposes of sexual gratification, taken advantage of the vulnerability of a disturbed psychiatric patient, he awarded XY damages, including exemplary damages. L appealed.