Citation: Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241
Court: District Court of New South Wales
Date: 30 September 2010
Judge(s): Gibson DCJ
Background
A Residential Support Worker employed by the Department of Community Services took a man with profound intellectual disabilities to visit a watch store on 10 June 2008. After the pair left the store, an employee pressed the hold-up button, signalling to police that a robbery had occurred or was in progress.
Police officers responded and detained both men. The plaintiffs were stopped, searched, and kept under police control. No robbery or attempted robbery had in fact taken place.
Both men sued the State of New South Wales (as the employer of the police) and the watch store (LVMH Watch and Jewellery Australia Pty Ltd) for defamation and false imprisonment. The State in turn brought a cross-claim against the watch store seeking full indemnity and contribution for any damages it was ordered to pay.
Legal Issues
- Whether the pressing of the hold-up button, and any accompanying communications to police, constituted a publication of defamatory matter about the plaintiffs
- Whether any such publication was protected by qualified privilege at common law or under section 30 of the Defamation Act 2005 (NSW)
- Whether qualified privilege, if established, was defeated by evidence of malice on the part of the store employee
- Whether the defence of unlikelihood of harm under section 33 of the Defamation Act 2005 (NSW) applied
- Whether the police continued to confine the plaintiffs after the circumstances of their detention had become unsustainable, amounting to false imprisonment
- Whether the watch store bore liability for the false imprisonment
- Whether aggravated or exemplary damages were warranted
- How damages should be allocated between defendants on the cross-claim
Decision
On defamation, the court found that a publication of defamatory matter had been established. The qualified privilege defences failed, including the statutory defence under section 30 of the Defamation Act 2005 (NSW). The court found evidence of malice on the part of the store employee that defeated any privilege that might otherwise have applied. The section 33 defence of unlikelihood of harm was also rejected.
On false imprisonment, the court found that the continued confinement of the plaintiffs by police, after circumstances had made it clear that no robbery or attempted robbery had occurred, was not lawful. The watch store was also held liable for the false imprisonment.
The court declined to award exemplary damages. Gibson DCJ found that there was no evidence the store employees acted in a high-handed, insolent, vindictive, or malicious manner in pressing the hold-up button sufficient to justify exemplary damages, and that the police themselves had acted within the bounds of ordinary human fallibility in difficult circumstances. However, aggravated compensatory damages of $5,000 were included in the award to the first plaintiff.
On the cross-claim, the State succeeded in full against the watch store, obtaining 100% indemnity and contribution, together with an indemnity for the costs of the proceedings.
Orders Made
- Judgment for the first plaintiff (carer) for defamation: $15,000 (including $5,000 aggravated compensatory damages)
- Judgment for the second plaintiff (person with intellectual disability) for defamation: $20,000
- Judgment for the first plaintiff for false imprisonment: $15,000
- Judgment for the second plaintiff for false imprisonment: $20,000
- The second plaintiff's judgment sums to be paid into court for investment pending orders of the Supreme Court or Guardianship Tribunal
- Liberty to bring in Short Minutes of Order reflecting agreed calculation of interest
- Judgment for the State (first defendant/cross-claimant) on the cross-claim for 100% indemnity and contribution against the watch store, including indemnity for the costs of the proceedings
- Both defendants to pay the plaintiffs' costs
- Watch store to pay the State's costs of the cross-claim
- Liberty to apply in relation to costs and interest
Key Takeaways
- The District Court found that pressing a hold-up button and communicating to police that individuals had attempted to rob a store constituted a defamatory publication, and that neither common law nor statutory qualified privilege shielded the store where malice by the store employee was established.
- Where police continued to detain individuals after it had become apparent that no robbery or attempted robbery had occurred, that ongoing confinement was held to constitute false imprisonment, not merely an excusable exercise of discretion.
- A retailer who triggers a false hold-up alert can be found liable both for defamation and for false imprisonment arising from the police response, not merely the initial act of pressing the button.
- Exemplary damages will not automatically follow findings of defamation or false imprisonment; the court required evidence of conduct that was high-handed, insolent, vindictive, or malicious to justify such an award, and found that threshold unmet here.
- Where both a State authority and a private party contribute to a plaintiff's loss, the court may apportion liability entirely to the private party on a cross-claim, leaving the State fully indemnified for both damages and costs.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), s 56
- Defamation Act 2005 (NSW), ss 20, 30 and 33
- Evidence Act 1995 (NSW), s 46
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 20 and 21
- Police Act 1990 (NSW), ss 6 and 213
Key Cases:
- Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
- Roberts v Bass (2002) 212 CLR 1 (malice and qualified privilege)
- Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 (qualified privilege)
- New South Wales v Delly [2007] NSWCA 303 (exemplary damages for police misconduct)
- Ruddock v Taylor [2005] HCA 48 (false imprisonment)
- Riley v New South Wales [2003] NSWCA 208 (aggravated and exemplary damages in false imprisonment)
- Lamb v Cotogno (1987) 164 CLR 1 (exemplary damages)
- Mann v O'Neill (1997) 191 CLR 204 (qualified privilege)
- Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44 (false imprisonment)
- Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 (defamation)
- Gray v Motor Accidents Commission (1998) 196 CLR 1 (damages)