M N v S M (Damages-Costs)

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.,Mr. Justice Geoghegan
Judgment Date05 May 2005
Neutral Citation[2005] IESC 17,[2005] IESC 30
Date05 May 2005
Docket Number[S.C. No. 157 of
NOLAN v MURPHY

BETWEEN

M.N.
PLAINTIFF/RESPONDENT

AND

S. M.
DEFENDANT/APPELLANT

[2005] IESC 17

DENHAM J.

GEOGHEGAN J.

McCRACKEN J.

RECORD NO. 157/2004

THE SUPREME COURT

DAMAGES

Assessment

Personal injuries - Sexual abuse - Generald amages - Review by appellate court -Principles to be applied - Damages reduced (157/2004 - SC - 18/3/2005) [2005] IESC 17

Nolan v Murphy

SINNOTT v QUINNSWORTH LTD 1984 ILRM 523

KEALY v MIN HEALTH 1999 2 IR 456

MCENEANEY v MONAGHAN CO COUNCIL & COILLTE TEORANTA UNREP O'SULLIVAN 26.7.2001 2003/40/9627

COMPENSATION ADVISORY COMMITTEE TOWARDS REDRESS & RECOVERY (RYAN REPORT) 2002

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 (SECTION 17) REGULATIONS 2002 SI 646/2002

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003

CIVIL LIABILITY & COURTS ACT 2004 S22(1)

CIVIL LIABILITY & COURTS ACT 2004 S22(2)

DPP v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155

JUDICIAL STUDIES BOARD FOR ENGLAND & WALES GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES

JUDICIAL STUDIES BOARD FOR NORTHERN IRELAND GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES IN NORTHERN IRELAND

COMMITTEE ON COURT PRACTICE & PROCEDURE 29TH REPORT INQUIRY TO EXAMINE ALL ASPECTS OF PRACTICE & PROCEDURE RELATING TO PERSONAL INJURIES LITIGATION

1

Judgment delivered on the 18th day of March, 2005 by Denham J.

2

1. This appeal raises, for the first time in this Court, the issue as to the appropriate level of damages to be awarded in civil proceedings for a continuum of sexual abuse, over five years, which culminated in rape, to a teenager.

3

2. M. N., the plaintiff/respondent, hereinafter referred to as the plaintiff, has brought civil proceedings against S. M., the defendant/appellant, hereinafter referred to as the defendant, for damages for sexual assault and for actions calculated and intended to cause emotional suffering.

4

3. On 27 th February, 2004, after hearing evidence and submissions from counsel for the plaintiff and the defendant, a jury assessed damages at €600,000 and the High Court ordered that the plaintiff do recover against the defendant the sum of €600,000 and the costs of the action. This is an appeal by the defendant from that award.

5

4. The defendant has appealed on the following grounds:

6

(i) that the jury erred in law and in fact and was wrong in awarding the plaintiff the sum of €600,000.00 in general damages;

7

(ii) that the jury's assessment of damages of €600,000.00 was excessive, went against the evidence, and against the weight of the evidence.

8

5. The case was heard in the High Court before Kearns J. and a jury on the 17 thFebruary, 2004. The defendant having admitted the abuse, the only issue for the jury was the amount of damages to award to the plaintiff.

6. Facts
9

2 6.1 The facts were not disputed. The events in issue took place between 1990 and 1995, when the plaintiff was between 12 and 17 years of age. The M. and N. families were friends. The N. family lived in Dublin, the M. family lived in the country, and the families would visit each other's homes.

10

3 6.2 The plaintiff was abused by the defendant in her own home and in the M's home and premises. Between 1990 and 1995 she was repeatedly and, in different ways, sexually assaulted. The defendant admitted that he so acted between 1990 and 1995.

11

4 6.3 The nature of the abuse developed over the years. The activity started with the defendant putting his hand on her breast, her buttocks, and generally acting improperly. He fondled her over and under her clothes and tried to kiss her. He pinched her nipples. He rubbed and touched her. Initially he was not violent to her. The sexual abuse developed in 1992. Late at night he would make her masturbate him and make her touch him inappropriately. He would kiss and bite her neck. He touched her improperly and inserted his fingers into her vagina. The plaintiff remembered Christmas 1992. She told the jury that the defendant would be asking "if it was nice?" He would say things such as "it is our secret". He became more insistent. She gave evidence of the defendant coming to her home when no one else was there and of his attempting to have intercourse with her and making her masturbate him. The plaintiff said the years 1994 and 1995 were the most painful. She was as resistant as she could be, kicking him and scratching him when he approached her. She said it was constantly happening. She gave evidence of instances of full penetrative sex.

12

5 6.4 The plaintiff gave evidence that it ended in 1995. She had been crying out for someone to "cop on". She had written an essay for her Junior Certificate and it included some references to this abuse. The teacher called her up and asked her if everything was alright. The abuse was in its fifth year. On the 14 th January of that year the defendant was staying in the plaintiff's family house. The plaintiff was washing her teeth. The defendant rubbed against her. She swore at him. His wife came in and asked what was her problem with the defendant. The abuse then stopped.

13

6 6.5 The plaintiff gave evidence that she would go off into her own world when the abuse was happening. She felt that if she had told about it, it would have caused a massive break up between the families. She said the families were intertwined. She said she did not think that she would be believed. She felt that if it was happening to her it would not happen to anyone else; she was concerned as there were other children in the family.

14

7 6.6 An event occurred in 1997 which made her talk about the assaults. Her sister came in, very distressed. Her sister was 15 years of age at the time. Her sister said:

"Did S. M. ever touch you?"

15

Bit by bit the plaintiff told what had happened to her. The day she got her Leaving Certificate results she told her mother the whole story.

16

8 6.7 The plaintiff said she did not have a happy, contented childhood. She said that once she came out in the open about the abuse she was branded all sorts of names and she was not believed. She gave evidence of her difficulty in coping with college - panic, anxiety, nightmares. The note of her evidence includes the following:

"Every night she had nightmares. She woke up screaming. She tore the sheets. She screamed. She got into bed with her parents. She was afraid to go back to sleep. She was sucking on a baby soother. She wanted to be small again. She wanted to be a baby. She had bad thoughts about herself. She felt cut off. ... She could not trust anyone. Everyone in college (her peers) were enjoying themselves, they had boyfriends and she, the witness, could not get out of bed in the mornings."

17

She gave evidence of difficulties in coping and of depression. Her evidence showed that the year 2003 was a particularly bad time.

18

9 6.8 The plaintiff's general practitioner gave evidence of the plaintiff being distressed, the family being distressed, consultations in relation to depression, gastrointestinal problems related to depression, and that while the plaintiff was coping she was upset and anxious. He gave evidence that the plaintiff had suffered flashbacks over a period and that the plaintiff had difficulty in engaging in treatment, which was very common for people who had been abused; she had attended a therapist and only lately engaged. The plaintiff had been and was on anti-depressants. He said that her attempts to withdraw had lessened, that there was a recent subtle change, and she was able to engage with her treatments. She had a very, very long way to go yet, he said. He said it was difficult to give an accurate prognosis. He agreed that this type of scenario might stay with a victim all their lives and that that could be the case for her. Principally she was suffering from depression, sleep disorder, hopelessness, loss of energy, and loss of motivation.

19

10 6.9 A consultant psychiatrist also gave evidence. He said that the abuse had left the plaintiff's life blighted. While her depression had responded to treatment, it was likely, he considered, that she would continue to need anti-depressant medication. He stated that she had feelings of self-loathing and low self-esteem. He gave evidence that the adolescent years are critical, especially for girls. In this case the plaintiff's development had been subverted by sexual abuse at the pre-pubertal stage. Her development had been altered and derailed. The effects were incalculable on a long-term basis. He would expect difficulties in emotional and physical intimacy, which would possibly be life long. He agreed that the plaintiff had benefited by confronting the defendant in the witness box in the criminal trial and by telling her story in this case.

20

11 6.10 When the defendant was confronted with the abuse, he admitted it. When first interviewed by the Gardaí, he admitted it. Counsel for the defendant said that he was instructed to apologise and to repeat the previous apology. The defendant pleaded guilty in the criminal prosecutions in both the District Court and the Circuit Court. He admitted that the plaintiff told the truth. The defendant has been sentenced to eight years imprisonment and is a prisoner in Wheatfield Prison. He has undertaken therapy. Mrs. M. is now rearing their children on her own. They had a share in a public house business.

7. High Court Judge
21

The learned trial judge addressed the jury. He told the jury to beware the tidal wave of emotion and not to adopt a punitive approach, as to do so would be an incorrect approach. He said that damages are compensatory, everything past, present and future is wrapped up in a single award. He explained that he could not give directions or...

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