Woman who was raped by man acquitted in criminal court awarded over £100,000 in civil damages

About this case:

• Citation:
  [2022] SC EDIN 4
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

The pursuer, AB, averred that she had not consented to sexual intercourse with the defender, Sean Diamond, who had previously been acquitted in a criminal court. She sought damages in respect of solatium as well as loss of employability.

The case was heard by Sheriff Kenneth Campbell QC in the All-Scotland Sheriff Personal Injury Court in Edinburgh, with the pursuer being represented by Skinner, advocate, and the defender by M Jackson QC.

Let down by criminal court

On 14 July 2015, the pursuer travelled to Dundee for a night out with a friend, Stacey Robertson. After having drinks at her friend’s flat, they went to the Underground nightclub, where the defender and his friend Ashley Higgs approached them and invited them to join them at a table. Later, after the pursuer and defender had been dancing together, the four of them returned to Ms Robertson’s flat at around 2am, where the pursuer fell asleep on the sofa.

At some time between 3:30am and 4am, the pursuer awoke to find herself being sexually penetrated by the defender. She told him to stop and get off of her, but he did not. After she lost consciousness again, she awoke shortly after to pains in her vagina and anus. Evidence was led by the pursuer from an expert, Dr Tagg, suggesting that her loss of consciousness during the events was a form of disassociation. After the pursuer regained consciousness, the defender and Mr Higgs were asked to leave the flat and the police were called. After a trial at the High Court in Edinburgh in the autumn of 2017, the defender was acquitted by a jury of rape.

Following the incident, the pursuer developed symptoms of post-traumatic stress disorder and attempted to take her own life in March 2016. She was unable to work at the level she did previously and had an application to join the Police Service of Scotland rejected after she was not signed off as mentally fit. She later relocated to Morocco, where she married a local man and secured employment as a teaching assistant at a rate of 6,000 Moroccan Dirham (approximately £480) per annum.

In her evidence, the pursuer asserted she had been let down by the criminal court and wanted justice for what had happened to her. Counsel moved the court to award her £100,000 in respect of solatium, based on previous awards made in a number of English cases, in addition to an award for loss of employability. Counsel cited in support the English case of Griffith v Williams (1995) in which the Court of Appeal upheld a jury award of £50,000 to a claimant who had been raped, as well as more recent Scottish cases that assessed damages at £80,000 and £100,000, respectively.

It was accepted by the defender that sexual activity had taken place, but his position was that the pursuer had not done anything to indicate she did not consent and thus he had a reasonable belief in her consent from her conduct and actions. He maintained that the pursuer had not lost consciousness during intercourse and had not fallen asleep until after they had finished.

No discussion about sex

In his decision, Sheriff Campbell said of the credibility of the witnesses: “None of the four main witnesses in this case is wholly reliable. That is not surprising, as they were recalling events which took place six years ago, in a setting where all had been drinking alcohol over a period of several hours. Nonetheless, I formed the impression that the pursuer, Stacey Robertson and Ashley Higgs were generally doing their best to tell the truth, so far as they could recall events.”

In contrast, he said of the defender’s evidence: “I do not accept the defender’s version of what happened in the living room. It is a radically different account of events from that given by the pursuer. It does not account for the pursuer’s evidence of apparent loss of consciousness, now attributed to a dissociative state, which is something which the pursuer led evidence from Dr Tagg to explain in clinical terms.”

Turning to the issue of consent, the sheriff said: “The defender accepted there was no discussion between him and the pursuer about having sex. The defender’s case is that he had a reasonable belief that she consented to sexual intercourse. He said in evidence he thought they were going to sleep together because of the way they were together. I infer that to be a reference to their interactions in the club earlier in the evening. I do not accept that is sufficient to indicate consent to sexual intercourse.”

The sheriff was therefore satisfied on the balance of probabilities that the defender had raped the pursuer.

Clear and detailed claim

Addressing quantum of damages, Sheriff Campbell began: “There are tentative averments about loss of earnings, but it is far from clear whether that is intended to be a separate head of claim. While her averments about solatium are clear and detailed, it is fair to say that, even within the abbreviated model of pleading adopted in personal injuries claims, the pursuer’s averments about the other heads are not fully developed.”

On solatium, he continued: “I have found the older English cases to be of little assistance, given there are two recent Scottish cases which are more directly analogous, namely C v G (2018) and AR v Coxen (2018). In line with those, I will assess solatium at £100,000, of which 75 per cent is attributable to the past. Interest will run on the past element (£75,000) at four per cent per annum from 15 July 2015 to date. That brings out a figure of £19,250 for interest to date.”

Sheriff Campbell said of the loss of earnings: “I agree with the defender’s submission that on the evidence, the pursuer’s relocation to Morocco and her employment at a lower rate of pay were changes in her life that the pursuer made of her own volition. It appears they have been of benefit to her feeling of well-being, but in terms of loss of earnings, I consider no future loss of earnings arising directly from the events of 15 July 2015 has been established.”

Decree was therefore granted in favour of the pursuer for the amount of £119,250, plus expenses.