A recent decision of His Honour Justice Levy in the District Court of New South Wales highlights the danger of making overbearing and unsubstantiated allegations.

Clarke v Coles Supermarkets Australia Pty Ltd [2012] NSWDC 107

Mr Clarke was shopping at his local supermarket in September 2009 when he was involved in a confrontation with the manager after being accused of stealing prawns. The manager alleged that Mr Clarke had purchased prawns from the seafood section, and had de-shelled and consumed them whilst completing his grocery shopping. The confrontation became public, with an estimated 30 bystanders witnessing the face off between the manager and Mr Clarke. Mr Clarke brought multiple causes of action against Coles Supermarkets in the form of defamation, injurious falsehood, assault, intimidation, harassment and wrongful imprisonment. The claims made by Mr Clarke were vigorously contested by Coles Supermarkets Australia Pty Ltd.

The Plaintiff’s Submissions

At the time, Mr Clarke was 46 years of age, an awarded artist and educated man with degrees in commerce and law. Mr Clarke submitted that prior to the incident, he had purchased a packet of prawns from the seafood section and placed them in his shopping trolley. He continued with his shopping, but whilst at the frozen food section, he opened the packet of prawns and decided that he would require an additional quantity. He then made his way back to the seafood counter where he handed the bag of prawns to the assistant and requested the amount be topped up to a total of one kilogram. Mr Clarke was then told by the assistant to wait until she had finished serving another customer.

The manager allegedly approached Mr Clarke, placed his face close to Mr Clarke’s and said words to the effect:

“You’ve been stealing prawns and you’ve been hiding the wrapper of those prawns”; “I want to see inside your pockets inside your jacket”; “Open your pockets, I want to see those prawns”.

Mr Clarke submitted that he had explained that the prawns were on the counter behind him. The manager replied to him:

“Until you show us those prawns you are not going anywhere. We're going to keep you - I will keep you here as long as it takes. You've been stealing prawns and we want to see them.”

A crowd of people gathered around the scene, including 15 staff members and some 30 customers in the vicinity.

Overview of the Evidence

Different accounts of the incident were provided by the Manager and a number of employees of Coles. Evidence was also provided by Mr Clarke and another customer, Mr Chapman who had witnessed the events and assisted the plaintiff. Each witness who gave evidence had a differing perception of the events in question.

His Honour Justice Levy rejected the evidence of the manager and Coles staff, choosing to accept the evidence of Mr Clarke and Mr Chapman.

The Judgment

His Honour found that the plaintiff had substantiated only the defamatory imputations that he was a thief, had stolen prawns and ordered the defendant to pay $40,000.00 for compensatory damages, $10,000.00 for aggravated general damages and interest upon the judgment.

His Honour found that the plaintiff failed to make out the assault, intimidation, wrongful imprisonment and other allegations raised by the Plaintiff.

Conclusion

In this case, the Court displayed a willingness to make an award in circumstances where a plaintiff experiences humiliation as a result of publicly made allegations. Whilst this case specifically relates to the customer service industry, it would be wise for all businesses and individuals to take note of the potential for a defamation claim as a result of involvement in a public dispute and implement procedures to address such situations.