High Court of Justice in Northern Ireland Queen's Bench Division Decisions

1. The claim arises out of an incident which occurred on 4 August 1997 when the defendant, who was a 59 year old Chief Inspector in the Royal Ulster Constabulary and a stranger to the minor plaintiff, carried out an indecent assault on the minor plaintiff, then aged 12, on a beach at Newtownabbey by kissing her, inserting his tongue into her mouth and by attempting to put her hand inside his swimming trunks; he asked the minor plaintiff to return the next day for a picnic, but she did not go, having informed her parents who in turn reported the matter to the police.

2. On 16 April 1999 the defendant was convicted at Newtownabbey Magistrates' Court, after a three day hearing, of indecent assault on the plaintiff and was fined £750; he did not appeal against his conviction or sentence. He has since resigned from the police force.

3. The defendant delivered a defence denying liability in this action. On 27 September 1999 Master Kennedy, on an application made on behalf of the minor plaintiff, entered judgment against the defendant pursuant to Order 14(1) of the Rules of the Supreme Court (Northern Ireland) 1980, leaving the issue of damages to be assessed by this court. The defendant did not appeal against the order made by Master Kennedy.

4. The minor plaintiff claims damages for the indecent assaults on her and aggravated damages by reason of the trauma to which she was subjected by reason of the fact that the defendant pleaded not guilty to the charge. As a result, she herself had to give evidence at the Magistrates' Court; there was a long delay between the date of the incident and the actual hearing before that court, which did not help matters.

5. The court had the benefit of two reports from Dr Alice Swann dated 15 December 1997 and 5 November 1999, which were received in evidence by the court. The court also had the benefit of oral evidence from Dr Swann. The minor plaintiff's mother also gave evidence. The minor plaintiff, although present in the court building, did not give evidence before this court.

6. It is clear that the minor plaintiff found the incident very distressing but this was as nothing compared to the ordeal which she had to undergo by reason of the fact that the defendant pleaded not guilty. When the matter eventually came on for hearing it was put to the minor plaintiff by the defendant's counsel, on his instructions, that she was lying and that it was she who had initiated the sexual contact with him and that this was due to "the way she had been brought up". The criminal trial lasted for three days. The minor plaintiff gave evidence on the first day of the hearing for a period of four hours, during which she broke down and wept; she did not have to attend court on the second or third day. After the case was over she made a rapid recovery due to her own resilience and the help given to her by her parents and one of the school teachers who had counselled her from the outset. Although her name had not been published in the local newspapers, this was a high profile case as it involved a police officer and unfortunately her identity became well known in the neighbourhood, which resulted on occasions in inappropriate comments being made to her by other children. Fortunately Dr Swann does not anticipate any long term sequelae of significance.

7. I award the minor plaintiff the sum of £5,500 for general damages in respect of the incident itself.

8. While there is little authority on the point, I consider that this is an appropriate case in which to award a sum by way of aggravated damages by reason of the ordeal to which the defendant subjected the minor plaintiff by her having to give evidence and to be cross-examined during the course of the criminal trial. In Re S , Central London County Court, 12 October 1994, reported in Kemp & Kemp on the Quantum of Damages volume 2 as paragraph C4-101/1 which was a case of sexual abuse of a young boy by the headmaster of his school, Judge Cotran referred to a number of factors which had been raised by counsel for the plaintiff in support of his claim for aggravated damages, including "the not guilty pleas entered by the defendant at his trial on indictment, the causing of the plaintiff to give evidence at the trial, the nature of the cross-examination of the plaintiff when he gave evidence at the trial of the first defendant with the publicity attendant on the trial"; he went on to state that without enumerating those factors and other factors in relation to aggravated damages, he had no doubt that the case was one which required an award of aggravated damages which he took into account in the overall figure for general damages which he awarded.

9. In the present case, having regard to the order made by Master Kennedy pursuant to Order 14, the minor plaintiff was not subjected to a further ordeal in the course of this civil trial by having again to give evidence. She was however, as already mentioned, subjected to a considerable ordeal by having to give evidence and be cross-examined at the criminal trial.

10. What is the correct figure to award for aggravated damages? The award of aggravated damages is not intended to punish the defendant but to reflect the real ordeal to which the plaintiff was subjected by reason of the defendant's plea of "not guilty". Lord Woolf in Thompson v Commissioner of Police of the Metropolis stated at page 775H,

11. I consider on the facts of the present case that the award of aggravated damages should exceed the award for general damages, which in the present case is the fairly modest figure of £5,500. By way of aggravated damages I award the minor plaintiff an additional sum of £10,000, giving a total award of £15,500. I award interest at the rate of 2% per annum on the sum of £15,500 from the date of the service of the writ of summons until the date of trial.

12. Counsel for the plaintiff: Mr Campbell Dunn

13. Counsel for the defendant: Mr Andrew J McGuinness