Plaintiff v Defendant

Plaintiff v Defendant - [2011] VSC 429 - VSC 2011 case summary — Zoe

[126]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: 'No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct'. In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: 'I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall'. It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty'. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.[17]

[162]

[The plaintiff] explored multiple areas of personal history and personal history thought his treatment with me. From the beginning, specific relationships with family, friends and intimate partners were sources of discord for him. Tensions with his father were a constant theme in his psychotherapy. He felt unloved and unappreciated by his father. His relationship with his mother was clearly more a source of support for him. He felt her love and acceptance. [The plaintiff] was frequently enraged with his father, many session[s] were focused on his anger towards his father for his leaving little in his will and testament for [the plaintiff] and his siblings. Frequently, [the plaintiff] described upsetting phone calls with his father, often ending in cut offs in communication for weeks or months.

[The plaintiff] clearly identified problems arising from the series of sexual abuse events perpetrated by his uncle. He mentioned this series of abuses several times in the course of our treatment. [The plaintiff] was clearly angry about this history and also felt shame. [The plaintiff] often hesitantly addressed the topic. Attempts to further deepen the dialogue on this topic were stifled. Sexuality became a difficult topic to explore. [The plaintiff] often felt ashamed of his sexual self. He reported ejaculatory issues, which were particularly painful for the plaintiff to explore in therapy and often were a source of embarrassment when engaging in sexual activities. This source of shame became [an] evident obstacle in many aspects of his relationships. [The plaintiff] longed for a romantic relationship, but never felt it was realised. Themes of control and inadequacy were core struggles that recurrently interfered with close intimate relationships with men.

Intimate relationships were a recurrent topic in his therapy. He had one very close previous relationship while in Los Angeles, which predated our therapy. [The plaintiff] continued to feel affection and romance with this man, and recurrent desire for reunion with him was explored. No other man seemed to meet the expectations that [the plaintiff] had for his potential partners. He had difficulty feeling close to other men, often feeling an outsider or disconnected from men romantically and socially. He reported having close friends, but also often felt the need to find new friendships that met his standards. Dissatisfaction with his gay circle of friends was a repeated theme in therapy.

[The plaintiff's] therapy sessions began to display a pattern: he would spend much of his session on superficial accomplishments or activities and only at the end of the session would he begin to discuss emotionally relevant material. We observed this pattern for many of his session[s]. His fear of emotional vulnerability became apparent. He was easily capable of displaying anger for situations and people in his life. It was much more difficult for [the plaintiff] to express sadness and insecurity. He felt comfortable taking control of situations, including psychotherapy sessions. The need for control was evident in many aspects of his life: relationships, career, and recreational activities. Vulnerability and lack of control easily angered [the plaintiff], it was however very difficult for [the plaintiff] to acknowledge sadness, depression or insecurity in the context of vulnerability.

[The plaintiff] made significant progress throughout the course of his psychotherapy. After years of treatment, he had more access to his vulnerable aspects of his personality. He became less defended and less focused on external success. His rage and racing thoughts diminished. [The plaintiff's] most recent struggles with unemployment became a turning point in his ability to quickly acknowledge his suffering and his vulnerability. This allowed him to quickly connect in therapy and turn to critical issues early in each treatment session. These same issues that exposes his vulnerability also ultimately led to his return to Australia for the support of his family. He left for Australia in December of 2009 and his final session with me was on December 7th of 2009. The therapy relationship is still active and [the plaintiff] expressed interest in returning to therapy upon his return [to] the United States.

[187]

[The plaintiff] is a middle-aged man, who is unmarried and has had a number of homosexual partners. He is from a privileged background, but his life ahs been disrupted by his father's leaving the family, marrying another woman and distancing himself from his children. A more serious factor has been the alleged systematic and frequent sexual abuse by an uncle over about five years. [The plaintiff] became disturbed at the time of the sexual abuse, and now suffers from post-traumatic stress disorder (PTSD), which had its onset some seven or eight years ago. This condition is present every day, and is moderately severe. A secondary condition is panic disorder with agoraphobia. He has some unstable moods, which may be caused by a form of bipolar disorder; the diagnosis has yet to be clarified. He is chronically angry; this has been present since he was a child, and was exacerbated by a rupture in his relationship with his father, and more so as a symptom of his PTSD...

If one accepts that [the plaintiff's] account of having been sexually abused by his uncle is correct, the diagnosis of PTSD is consistent with that, as is the content of the recollections which occur in his waking and sleeping states. He is moderately severely affected, and his life would have been much better at the time, and ever since, if the alleged offences had not occurred. PTSD is the basis of his panic disorder and agoraphobia, and his unstable mood and his tendency to become depressed, although this may be partly related to bipolar disorder. If he does have bipolar disorder, this condition cannot be considered a consequence of the sexual abuse or PTSD, although PTSD would very probably make bipolar disorder less stable, and exacerbate the severity of the episodes.

Concerning treatment, he needs further psychiatric examination, which is a difficult matter and not always a fulfilling exercise, in order to clarify the diagnosis, specifically concerning whether or not he has bipolar disorder. If he does have the condition, it would be likely to respond at least to a reasonable extent, if optimally treated. This would improve his psychiatric state in all respects...

The prognosis must be guarded. Specific psychological treatment techniques for PTSD could improve [the plaintiff's] condition, to a major extent, but as he is at present, it would be hard to implement such treatment. It would be more likely to succeed if he could be made calmer at first.

Treatment would involve psychiatric management of his medication, and psychological treatment, employing methods such as exposure therapy, cognitive behavioural therapy and EMDR, which have been shown to be frequently effective in treating PTSD. Treatment could occupy one to two years, and involve perhaps twenty sessions of psychotherapy.

The least likely even would be for [the plaintiff] to experience a complete remission of all his psychiatric symptoms.

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