Citation: Clarke v Coles Supermarkets Australia Pty Limited [2012] NSWDC 107
Court: District Court of New South Wales
Date: 31 July 2012
Judge(s): Levy SC DCJ
Background
The plaintiff was a 46-year-old exhibited artist who visited a Coles supermarket at Lane Cove on 4 September 2009. He had gone to the store to purchase raw prawns for a Father's Day barbecue. A dispute arose at the seafood counter, leading to a confrontation with the store manager.
The store manager publicly accused the plaintiff of having consumed raw prawns from the seafood section without paying for them, in effect accusing him of theft. The plaintiff emphatically denied this and felt deeply humiliated by the public nature of the accusation, which occurred in front of other staff and customers for a period of at least ten minutes.
The plaintiff brought proceedings against Coles on multiple grounds: defamation, injurious falsehood, assault, intimidation, harassment, and wrongful imprisonment. He sought general compensatory damages, aggravated damages, and exemplary damages.
Legal Issues
- Whether the store manager's words gave rise to defamatory imputations against the plaintiff.
- Whether those imputations were defeated by common law qualified privilege or statutory qualified privilege under the Defamation Act 2005.
- Whether the plaintiff established the additional tort claims of assault, intimidation, harassment, and wrongful imprisonment.
- What quantum of damages was appropriate, including whether exemplary damages were warranted.
Decision
Defamation: Levy SC DCJ found that the store manager did utter the words complained of and that those words were defamatory of the plaintiff. The court rejected both the common law and statutory qualified privilege defences raised by Coles under the Defamation Act 2005. The defamation claim therefore succeeded.
Additional tort claims: The court did not accept the plaintiff's claims in assault, intimidation, harassment, or wrongful imprisonment. On each of those causes of action, the facts as found did not support the legal elements required to establish liability.
Damages: General compensatory damages were assessed at $40,000, reflecting the humiliating and embarrassing nature of the public accusation. Aggravated damages of $10,000 were awarded, kept at modest proportions consistent with the level of general damages. The court declined to award exemplary damages, finding no evidence of malice on the part of any Coles employee. The confrontation had escalated into an unnecessarily heated exchange, but that fell short of the conduct required to justify exemplary damages.
Exemplary damages: The court was not satisfied that the defendant's conduct rose to the level of malice or calculated wrongdoing that would support an award of exemplary damages, so that component of the claim was dismissed.
Orders Made
- Verdict and judgment for the plaintiff in the sum of $52,900, inclusive of pre-judgment interest.
- The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered.
- Exhibits may be returned.
- Liberty to apply on 7 days' notice if further orders are required.
Key Takeaways
- The District Court found that a supermarket manager's public accusation that a customer had consumed and stolen goods was defamatory, and that neither common law nor statutory qualified privilege under the Defamation Act 2005 provided a complete defence on the facts of this case.
- Aggravated damages in defamation claims are available where a plaintiff is subjected to embarrassing and humiliating conduct in a public setting, but their quantum should reflect a proportionate relationship to the general compensatory damages awarded.
- Exemplary damages require proof of malice or sufficiently egregious conduct; an argument that escalated into an unnecessarily heated confrontation was not, of itself, sufficient to meet that threshold.
- A plaintiff who succeeds on one cause of action in a multi-claim proceeding will not automatically succeed on all others. Each additional tort claim requires independent factual and legal analysis, and the court here dismissed the claims in assault, harassment, intimidation, and wrongful imprisonment on their individual merits.
- Pre-judgment interest is available on defamation damages where no disentitling factors exist; the court applied a rate of 2 per cent over the period from the date of the incident to the date of judgment.
Legislation and Cases Referenced
Legislation:
- Defamation Act 2005 (NSW), ss 30(1), 30(2), 30(3)
Cases:
- Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1
- Bristow v Adams [2012] NSWCA 166
- Mirror Newspapers Limited v Fitzpatrick (1984) 1 NSWLR 643
- Rookes v Barnard (No 1) [1964] UKHL 1; [1964] AC 1129
- Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147
- Watson v Marshall & Anor [1971] HCA 33; (1971) 124 CLR 621