Clarke v Coles Supermarkets Australia Pty Limited

Issues 5The factual issues concern the details of what was said and done by the manager and by the plaintiff at the time the events in question occurred. The resolution of those issues requires a consideration of credibility and reliability of the conflicting testimony given by the various witnesses who were called to give evidence. All the witnesses gave evidence of their differing perceptions of what had actually occurred during the events in question. 6In respect of the claim in defamation, the legal issues are whether the claimed imputations arise, and if so, are they defamatory of the plaintiff, and in that event, are such imputations defeated by the defences of either common law qualified privilege or statutory qualified privilege. The Defamation Act 2005 applies to these proceedings. The other legal issues concerning liability in tort involve a conventional analysis as to whether the facts as found, support the claims made by the plaintiff.

Evidence overview 7In the case for the plaintiff, the only oral evidence was called from the plaintiff and Mr Graeme Chapman, another customer in the supermarket who had witnessed some of the events, and who had gone to the assistance of the plaintiff. 8The documentary evidence tendered in the case for the plaintiff principally comprised a portfolio or personal collection of copies of his published artistic works in the form of a scrapbook, Exhibit "B", and a colourfully written short story he wrote to express his feelings on the events, entitled "The Coles [Lane Cove] Case (I Never Got My Prawns)", Exhibit "C". 9In the case for the defendant, oral evidence was called from Mr Shant Tatosian, the supermarket store manager, Mr Senkata Velaga, the delicatessen manager at the store, and Ms Cherryl Sternbeck, who was serving customers at the Catch of the Day seafood counter at the time the incident occurred, Ms Katrina Elward, an assistant store support manager, and Mr Naval Naidu, another Coles employee. 10The documentary evidence tendered in the case for the defendant comprised various floor plans of the store. In my view, little, if anything, turned on those plans.

Summary of findings 11For the reasons I have stated, my findings of fact are to the effect that Mr Tatosian uttered the words complained of by the plaintiff and that the plaintiff was defamed by the defendant in the course of those events. I have rejected the claimed defamation defences. I have not accepted the plaintiff's additional claims made in tort for assault, intimidation, harassment and wrongful imprisonment. I have assessed the plaintiff's entitlement to damages in the total sum of $52,900 including interest up to the time of judgment.

Undisputed facts 12On 4 September 2009, the day in question in these proceedings, the plaintiff was aged 46 years. He was aged 49 years at the time of the trial. He is an exhibited artist. When giving his evidence, he presented somewhat eccentrically in his appearance, and at times, with flourishes in his manner of speech. He identified his heritage as being Spanish, Irish and Aboriginal. 13The plaintiff's background was that during his secondary education he had excelled in art and was awarded art prizes in the last three successive years of his private schooling in Sydney. He then went on to graduate from the University of Sydney in 1975 with degrees in commerce and law. He then travelled through Asia and Europe for a number of years, eventually taking up residence in Spain. There, he became a friend and apprentice to Salvador Dali, the master of the art form of Surrealism. After becoming an artist in his own right, he had significant exhibitions in various cities throughout Asia and Europe, including in Sydney, where his work has been exhibited in competition for the Archibald Prize. 14Years before the events in question, the plaintiff had sustained a debilitating spinal injury, which meant that he frequently experienced pain, and required the assistance of a walking cane for support and mobility. 15The plaintiff had a residence in Greenwich, in Sydney. His elderly parents lived in those premises. In September 2009, he had been visiting his parents and had been staying at those premises in anticipation of celebrating Father's Day with his family. 16In preparation for those celebrations, the plaintiff had travelled to the Coles store in Lane Cove in order to purchase some raw prawns to barbeque them for his father. In those events he found himself in an altercation, which involved a voluble argument and disagreement with the manager of the Coles store at Lane Cove. 17The events comprising the detail of that alteration were hotly disputed by the differing accounts of the respective witnesses. Before arriving at my findings of fact concerning those events, I will review the array of evidence that touched upon those matters of disputed fact.

Disputed facts 18Each of the witnesses who gave oral evidence had differing perceptions of the events in question. In the paragraphs that follow I set out a summary of the effect of that differing testimony before stating my findings on the disputed factual matters.

The plaintiff's version 19The plaintiff said he obtained 500 grams of large green uncooked and possibly frozen prawns from the seafood counter at the premises. He was served by a Coles employee whom he believed was named Shurly, who wrapped the prawns in a packet. Subsequent evidence revealed that it was Ms Cherryl Sternbeck had served him. In my view, nothing turns upon the discrepancy in the misspelling, pronunciation or incorrect recollection of her name by the plaintiff. 20The plaintiff said he then placed the packet of prawns, which were wrapped in white paper, into a shopping trolley. He said he intended to take the packet to the check out counter where he was in due course intending to pay the price that was marked on the wrapping paper label. He said that in the meantime he then proceeded to collect some other displayed goods from other areas of the supermarket and placed them in the trolley with the intention of, in due course, also purchasing those items. 21The plaintiff claimed that when he was at the frozen food section he opened the packet of prawns and determined he needed an additional quantity of such prawns. He claimed that at this point he went back to the seafood counter where he had obtained these prawns and proceeded to hand the opened bag of prawns and the wrapper to the same sales assistant whom he believed had earlier served him. At this time he said he requested the sales assistant to top-up the quantity of the packet to a total of one kilogram of such prawns, at which time she asked him to wait until she had finished serving another customer. He claimed that whilst the sales assistant was finishing attending to that other customer, he found himself being confronted with the store manager, Mr Tatosian. 22In these events the plaintiff described the approach and the presence of three Coles employees in his immediate vicinity. In the conversation that then ensued, he described Mr Tatosian as having then said to him 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". 23The plaintiff described this conversation as having occurred whilst Mr Tatosian's face was in a position that was very close to his own glasses, namely about 10 inches from the plaintiff's face. 24The plaintiff said he responded to Mr Tatosian by saying something to the effect that the prawns were on the counter behind him, at which time he claimed Mr Tatosian then replied by saying "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". The plaintiff claimed these words were repeated to him by Mr Tatosian on about three occasions. 25The plaintiff also claimed that Mr Tatosian had also said something to the effect "Well if they're not in your pocket you must have eaten them and that's the same as stealing. So you've eater (sic for eaten) these raw prawns." 26The plaintiff described the events of this confrontation in the Coles premises as having taken place over a period of some 10 minutes. During this time the plaintiff said he had told Mr Tatosian that the prawns were behind him, meaning on the counter of the seafood section. He said Mr Tatosian's response was to completely ignore what he had to say. He said Mr Tatosian was speaking loudly. The plaintiff also stated that during these events about 15 staff members had surrounded him. He said he saw other people aggregating around the scene. 27The plaintiff estimated there to be at least some 30 customers in the vicinity. He said that Mr Tatosian was speaking loudly and he felt frightened at the time. He said he also felt imprisoned and intimidated at the time. When asked who was in the vicinity of these events, at T22.35, he gave the following evidence: "Q. But apart from staff, were there any other persons within hearing distance? A. Yes. Q. Who? A. There would have been 30 people. After ten minutes there would have been at least 30 shoppers who because it formed a natural bottleneck in that area of the shop. If you look at an - the layout of the shop there, you go through to the back of the shop and these people were just stopping and watching in disbelief as I was dragged over the coals and made to look like a complete fool. And these people know me. They're my neighbours and they're my, you know, some I say hello to, others I know by sight. I live there. Q. These shoppers, that's not staff; shoppers? A. 30 customers Q. Customers? A. At least 30 shoppers." 28The plaintiff stated that in these events he saw Coles customers speaking amongst themselves and watching the events. He heard some of them say something to the effect they thought he had been stealing prawns. 29The plaintiff appeared to be visibly upset when he gave his evidence in which he recounted these matters. He also said he felt dispirited when he had to recount these matters. 30The plaintiff stated that during the period he was being confronted and accused of stealing raw prawns by eating them, he eventually stood his ground, turned to take a raw prawn from the counter behind him, bit into it demonstratively and then proceeded to let that piece of prawn drop out of his mouth and onto the floor, apparently to indicate the he could not eat a raw prawn. He disputed the assertion that he spat that prawn out onto the floor. 31The plaintiff also described the later appearance of a person onto the scene whom he referred to as the good Samaritan. The plaintiff said that person had assisted him with a chair and a glass of water. This person turned out to be Mr Chapman. 32By this time the police had arrived. After making their inquiries the police laid no charges against the plaintiff. It was suggested to the plaintiff that he should go home. The plaintiff took that advice and went home where he obtained the assistance of his wife to lay down to rest because of his chronic pain and because he felt extremely upset at the events that had earlier unfolded, and which he had described as outlined above. 33When the plaintiff was at home he felt he could not tell his parents of the events that had occurred at the Coles store because he did not want to spoil the Father's Day plans of the family. He said that nevertheless, he felt quite tearful, emotional and depressed following those events. 34The plaintiff said that at the time he felt a good deal of angst about the events, and that this had interfered with his artistic endeavours for a time, and had affected the execution of commissions he had received. There was no claim for consequential economic loss. In this regard, at T30.40-T30.50, the plaintiff gave evidence as follows: "Q. So, what effect do you say this incident at Coles had on your life in the months after it happened? A. I dropped everything as far as my painting was concerned and I just went battened down the hatches, and went to what was absolutely essential for survival, which was looking after my mum and dad, taking care of my son, getting him to school, and you know keeping a bright face on things for my family. I couldn't let my son know that I was depressed, although he asked why I wasn't selling any paintings, because he knows where his money comes from. And so I just concentrated on keeping my life on an even keel and not doing anything silly. I did see a psychiatrist called Tony Diamond, he's a -" 35The plaintiff was cross-examined on a variety of matters. The principal topics included: (a)His practice of sampling some items of produce whilst shopping at the defendant's store: T40.30-T42.20; (b)Whether he had opened the wrapped packet of prawns and consumed some of them before paying for them, a proposition he denied: T45.7; (c)Whether he had placed a packet containing some half-eaten prawns in the freezer section of the supermarket and then went back to the seafood counter and obtained another packet of prawns, a proposition he denied: T45.9-T46.13; T47.5; (d)Whether he was exaggerating when he described Mr Tatosian as coming at him like a pitbull, an allegation which provoked the plaintiff's colourful response to the effect that Mr Tatosian had "attacked [him] as if he had a rabid desire to nail [him] to the wall": T46.39; (e)The repeated suggestion that Mr Tatosian had not used the word "stealing" in addressing the plaintiff, a proposition the plaintiff denied: T47.15; T48.9; T48.42; T49; T49.30; T50.7; (f)The suggestion that Mr Tatosian had not requested the plaintiff to open his leather jacket in order to be able to see what was inside, a proposition the plaintiff denied: T48.40; (g)The suggestion that Mr Tatosian had not stated the plaintiff would be kept in the store until the prawns were seen, a proposition the plaintiff denied: T49.46; (h)The suggestion that Mr Tatosian had not requested the plaintiff to empty his pockets, a proposition the plaintiff denied: T50.29; (i)The suggestion that it was the plaintiff, and not Mr Tatosian, who had raised his voice in the events in question, a proposition the plaintiff denied: T51.9; (j)The suggestion that the plaintiff had taken his walking cane and had waived it in the air in an aggressive fashion after being confronted by Mr Tatosian, and had then prodded Mr Tatosian in the chest with it, propositions which the plaintiff denied, and considered to be outrageous: T52.20-T53.10; (k)The suggestion that the plaintiff had become aggressive towards Mr Tatosian in order to cover up his own embarrassment at being "caught", a proposition that the plaintiff denied: T58.10-T58.27. He also denied swearing: T62.30 - T62.43. However, the plaintiff admitted he had become aggressive with Mr Tatosian when he was approached in the manner described: T53.37. That said, the plaintiff denied that he was the aggressor throughout the whole episode: T71.46. 36The plaintiff also denied that Mr Tatosian had approached him in what was suggested to be a normal conversational tone in his voice: T54.23. He stated that he was only allowed to leave the area of the store where the confrontation had occurred after what he described as some "20 minutes of imprisonment" having passed: T49.50; T50.19. The plaintiff stated that the words and events he had complained of as having come from Mr Tatosian had occurred in front of a large group of onlookers in the Coles premises (T50.25) whilst Mr Tatosian spoke in a raised voice (T50.36). 37The plaintiff described having felt himself to be in a state of fear during the events, and of him being under Mr Tatosian's control completely (T55.16), adding that it was his perception that Mr Tatosian was present at the scene with a number of back-up personnel whom he felt were ready to jump him if he moved: T55.36; T56.11. He said he felt surrounded in the circumstances and unable to leave: T64.14. The plaintiff described his feelings at the time as feeling shocked, humiliated, disbelief and great sadness at these events: T58.6. 38The plaintiff became visibly upset when he was cross-examined as to his disability and concerning his use of a walking cane, and he appeared to me to convey an attitude of being affronted by the contrary matters that had been put to him generally in cross-examination: T52; T59.10; T60.32; T74.20. He considered parts of the cross-examination that had been directed at him to be outrageous (T53.9) and to be of a badgering nature (T53.45). When giving his evidence he was in physical discomfort from his back condition and needed to have a break during cross-examination. 39The plaintiff also denied the following propositions that were put to him in cross-examination: (a)The suggestion that the plaintiff had first bought half a dozen cooked prawns when he first entered the store: T60.6; (b)The suggestion that the plaintiff had eaten some prawns and had then dumped the rest in the freezer: T60.25; (c)The suggestion that he was exaggerating in saying there were some 45 persons including members of staff and members of the public standing around during the time when the interchanges between Mr Tatosian and himself were unfolding: T62.28; (d)That he had been belligerent with Mr Tatosian at the scene, and at the outset of their interchanges: T72.7; 40The suggestion that he had bitten into a green prawn and had then spat it out at the feet of Mr Tatosian was vehemently denied by the plaintiff. His evidence on this issue at T60.10-T60.18 was to a slightly different effect, as follows: "Q. Can I suggest to you that whether you grabbed a handful of prawns from the counter or that you had a green prawn from somewhere else and bit into it, that you then spat it at the feet of Mr Tatosian, didn't you? A. I didn't spit it at his feet. I dropped it out of my mouth at my feet because it tasted so disgusting and I had not been given any kind of assistance by the Coles people, whether it was to sit down, have a glass of water, have a tissue or whatever. I was stuck there under their control and that was simply a rhetorical way of showing how nonsensical it was for them to accuse me of having eaten a green prawn, or 500 grams of green prawns." 41The plaintiff stated that Mr Tatosian had asked a Coles employee to call for the police to attend, but when the police arrived some time later, Mr Tatosian had by then left the scene, and was unavailable. The plaintiff said that the police did not appear to him to have been interested in speaking to him about the events. 42The plaintiff acknowledged that he had become aggressive and agitated with the attending police but denied he had been aggressive with Coles staff during the incident: T66. He explained that his aggression towards the police was as a result of what he took to be a refusal by the attending police officers to tell him their names: T67.10. 43The plaintiff summed up the events in question by saying that he was at the time "trying to survive a very, very unpleasant attack from the general staff of Coles over the last half an hour which seemed more like two hours": T68.37. At T68.7-T68.14 the plaintiff also described the aftermath of those events as follows: "Q. You came back to the delicatessen? A. No, let's get this in perspective. After the accumulative stressful situation I am almost unable to walk, let alone run and that is the real reason why I as agitated in front of the police because I was at the end of my physical endurance and they understood that and that is why, you could say, they probably were fairly gentle with me because they saw that I was in great physical distress, walking with my cane with a dry mouth and unable to carry myself upright properly." 44Later, at T69.25-T69.29, the plaintiff explained his distress as follows: "Q. ... A. Well, police deal with aggressive people all the time, they saw I was in distress, maybe when they got back they made a report that was fairly haphazard because they obviously didn't really care about it, and it's even said here no one really cared about it, it was no big fuss, and so they just put that word in there. But I was not aggressive I was in great pain, I was in extremis if that's the correct medical term. I was extremely stressed, I had been imprisoned in effectively by a group of 15 Coles employees who I had never seen before, and I'd been surrounded by people, I was in a pretty extreme state of stress, and I was just trying to survive." 45The plaintiff gave evidence that the pleaded imputations as set out in paragraph 5(a) to (e) in the Further Amended Statement of Claim were all false and had caused him to be very much upset: T79.47. The plaintiff said that at the time the underlying events had occurred at the Coles Supermarket, his day had gone from "normal to horrendous", causing him to become very upset, and to experience a state of shock and despair: T80.21-T80.26. 46Some time after the events the plaintiff had written what seemed to me to be a dramatisation of the events in the form of a short story in the form of Exhibit "C", entitled "The Coles [Lane Cove] Case (I Never Got My Prawns)". He said he had written this document to try and rid his mind of the sense of outrage that he was experiencing following the incident, and in order to help him sleep: T81.15-T81.26. On examining the document in detail I did not take it to be a factual statement in the strict sense, as it has obviously been framed in colourful terms, with some allegorical flourishes and licence, and because it has been the subject of amendments made at times which were uncertain. 47On analysis, it was plain that the document was not a factual statement. Instead, it was a stream of consciousness purging of the plaintiff's thoughts on the unpleasantness of the events, written in emotive terms, probably as a therapeutic exercise and no more.

Mr Chapman's version 48Mr Chapman was called as an independent witness to the events. He said he had not met the plaintiff either before or after the occurrence of the events in question. He said that earlier in his working life he had a management background of training in customer service. At the time in question he was in the supermarket with a friend doing some shopping. His attention was drawn to the plaintiff having a discussion, which he characterised as a miscommunication, with a person behind the counter, about a bag of prawns: T84.36; T85.8. 49He said he continued with his shopping and went around the corner of some aisles within the store but he then heard yelling and this led him to make his way back to where the plaintiff was located. He said that in these events he heard a lot of yelling and noticed a man in front of the plaintiff, and a number of staff members who had "attached themselves" to nearby cooling fridges, and some customers who were also standing around: T85.40-T85.50. In my view, nothing turns on the distances and layout within the premises as it is not seriously contested that raised voices could not have been heard by Mr Chapman, or indeed other customers, at the time. 50Mr Chapman said he approached the plaintiff and tried to get him to calm down and he told the staff member who had been addressing the plaintiff to go away. It appears that staff member was the store manager, Mr Tatosian. It seemed to me that Mr Chapman was attempting to convey the impression that at the time, he was trying to defuse a situation that had become heated between the plaintiff and the person who had been addressing him, namely Mr Tatosian. 51Mr Chapman described the plaintiff as having been "held up" whilst trying to get some more prawns, and that miscommunication was occurring in the events, which he thought were getting out of hand. He described the scene, which he saw as one where both parties were yelling and talking loudly: T86.36. At T 86.38-T87.2, Mr Chapman gave the following evidence: "Q. Loud talking? A. Loud talking, yes. Q. You said there were about 15 staff, you also mentioned customers, about how many customers were there watching? A. Lots and lots of staff members, I mean customers, and so look it was a bad situation, you know, I just said to - I told - I just stood there and said, "Look, all you staff members go away, excuse me you come here", I went and talked to Mr Clarke, I asked him, "just look, just calm down, there's nothing to worry about we'll work it out". I went back to the gentleman who was the manager, I basically said to him, "Look, this is not the right way to do it, you know, you've got to treat people with dignity, you've got to look after people who are your customers", you know, and then I - then I went back to the gentleman and then the police came and I went off to do my shopping. As I was leaving the police, you know, he said thank you as we went past the gentleman, one of the policeman. I also heard another lady bail up the manager later on around the corner." 52Mr Chapman described his attempts to speak with the manager of the supermarket to try and calm the plaintiff down in the circumstances. Mr Chapman described the scene that led him to believe that calm was required in the following terms, extracted from T88.14-T88.18: "Q. Well, what was the manager doing? A. The manager was right up close to this gentleman and he was like face to face with him, the other staff members had surrounded the area and there was customers in the middle of all of this, and I could see that he was not - he was upset and stressed and worried about his - what was happening to him." 53Mr Chapman described both the plaintiff and the manager as being very distressed at the time, to the point that he thought intervention was needed. This was because there was an apparent impasse between them, and because there were staff members surrounding the scene: T89.22. He was concerned that the circumstances could lead to harm: T90.14. He said he felt he had to step in immediately: T90.40. 54It was repeatedly put to Mr Chapman in cross-examination that before the events in question, contrary to his earlier evidence in which he said that he had never met the plaintiff before, he had in fact regularly shopped at the Coles Supermarket premises in company with Mr Clarke. Mr Chapman repeatedly denied this assertion: T91.10-T91.13; T91.35: T94.45-T94.50; T95.5-T95.12; T96.26; T96.50-T97.10; T97.37. No contrary evidence was called on behalf of the defendant to make good the assertion put to Mr Chapman in cross-examination to the effect that he had a pre-incident familiarity or acquaintance with the plaintiff. 55Mr Chapman described his intervention at the scene in the following terms, at T95.44-T96.17: "Q. When you got back to the area, can I suggest to you that what you saw was Mr Clarke in a very agitated state? A. Well he was agitated but all I saw when I first came around the corner was all these staff members surrounding a gentleman and another gentleman right in front of him. I walked straight into the middle of the situation, I pointed to all the staff members and said, "Look, all of you go away now", that's exactly how I said it sir. And I said to the manager, "Could you please come over here". I walked up to this gentleman I've never met before in my life. I said, "Look you calm down please because you are you're in a bad situation here. There are people around you, you could be in trouble". Then I walked back to the manager and said, "This is not the way you do this. Please wait here. If you call the police, you wait here til they came", and that's how I did it. And that was how it ended sir. Q. Well is it the case then Mr Chapman that you assumed immediately on appearing on the scene that there was something that was being done wrongly by Coles and not by Mr Clarke? A. I thought it was a bad customer service situation,. Q. Did you bother to make any inquiry as to what had made Mr Clarke upset? A. I wasn't worried about the situation then, I was worrying about was that one person basically being surrounded by these at least 15 staff members. As you said it could be less, but all I saw was a situation that was not right, and I stopped it. And that's all I could do sir."

Mr Tatosian's version 56There was a conflict of some essential details within the evidence of the plaintiff and that of the store manager, Mr Tatosian. 57Mr Tatosian described being called to observe the plaintiff by Mr Naidu. He gave the following account of those events at T101.18-T102.9: "Q. Is that the person you have identified as being Mr Clarke? A. Yes, Mr Clarke yes. He was by himself with the trolley and then I've seen that he is consuming something and obviously dropping bits on the floor and then in the middle of the aisle stopped to open one of the freezer doors and placed a bag of something in the freezer. Then once he left we went down and opened the door and I found there was a bag of wrapped prawns with a deli ticket on it that was ripped. There was a few shells in that bag with half eaten and half untouched. I have picked the bag up and went. Q. Half eaten and untouched what? A. Some of the prawns were obviously eaten, consumed and the shells were still in the bag and some of them were still in the bag. So it wasn't all eaten, it was some eaten and we picked those shells off the floor as well. Q. What did you do then? A. Then I went down and I've seen Mr Clarke near the deli counter near the seafood section. I've greeted him and I told Mr Clarke, "Hello sir, have you forgotten those prawns." Q. What did you mean by those prawns? A. I had the bag in my hand. Q. So these prawns? A. These prawns, yes. Q. When you said that to Mr Clarke what was his response? A. His response was, from memory, "They are not mine" and I said, "Sir, I've seen you putting those prawns in the freezer" and that is when Mr Clarke starts yelling and screaming and shouting at me straight away. Q. Do you recall what he shouted at you? A. Yes, "You are accusing me, I'm not a thief" and he started swearing, using the F word. "Where you come from, were you born here?" Things like that, "You little man" and also "How much they pay you" and things like that, so. Q. Did he at any stage refer you to another packet of prawns that may have been in the area? A. No. Q. Did he tell you at any stage to speak to one of the delicatessen assistants regarding any other prawns? A. No." 58In answer to a leading question, which was not objected to, Mr Tatosian said the plaintiff used the cited words to him in a very loud voice (T101.33) which developed into screaming when other team members attended the scene: T102.38. 59Mr Tatosian denied the key propositions alleged against him by the plaintiff, namely, that he had accused the plaintiff of stealing prawns: T103.19; that he had accused the plaintiff of hiding the wrapper for the prawns: T103.22; that he had asked the plaintiff to open his leather jacket and allow an inspection of his pockets: T101.28-T103.40; that he had told the plaintiff he would be kept in the store until the prawns in question were seen: T103.47; T104.31-T104.40; that he had pushed out his chest towards the plaintiff in an aggressive gesture: T105.45; and that he had been loud and aggressive to the plaintiff: T105.18. 60Mr Tatosian claimed that the plaintiff had tapped him on the chest with his walking stick: T105.24. 61Mr Tatosian stated the plaintiff had taken his jacket off and handed it to him. He said he did not take the jacket and did not see the plaintiff take anything out of his pockets and place the items on the ground: T104.46-T105.1. 62In his evidence in chief, Mr Tatosian agreed that he might have said to the plaintiff words to the effect that he had eaten "the rest of those prawns in my store and that is stealing": T103.49-T104.1. That was in contrast to other evidence he had given in cross-examination where he said "I didn't accuse him of stealing at any stage": T110.27-T110.33; T117.12; T117.30. 63Mr Tatosian claimed that the plaintiff opened the front of the delicatessen counter window, "took a bunch of raw prawns and [had] bitten on one or two and spat them on [him] and then thrown the rest on the floor": T105.10. He later described that incident as the plaintiff having bitten on one prawn and then having spat it out: T137.20. This differential description raised a doubt in my mind as to whether Mr Tatosian was a careful and reliable witness. 64Mr Tatosian said the whole incident took place over about 15-20 minutes: T106.17; T107.33; T109.7. He claimed that an employee named Sanjay had picked up the prawns from the floor after those events: T106.26. No evidence was called from the person named Sonjay. 65Mr Tatosian said he had left the area in order to defuse the situation that had developed between himself and the plaintiff (T138.11), and that he had been concentrating on trying to stay calm throughout the events. He described himself as having been abused by the plaintiff: T107.35-T107.44. In my view this leads to the implication that Mr Tatosian had said something to the plaintiff that had agitated him. Mr Tatosian said he did not recall the conversation in which Mr Chapman had expressed the view that he had handled the situation badly, and that he had picked on the plaintiff: T108.3. 66I formed the impression that some parts of Mr Tatosian's evidence was based on hearsay and reconstruction rather than direct observations he had personally made. This was apparent from the following passage at T110.35-T110.42: "Q. What did you accuse him of, if anything? A. Looking, my initial thoughts were of, there's two customers complaining about food hygiene and obviously the initial complaint was around Mr Clarke consuming dates around the produce and throwing the - the shells on the floor. So again this is a public safety issue. The other one is obviously bitten on the passionfruit and all the juice all - all over the, you know, the customers and on the product. They were my main concerns around - around Mr Clarke, we had that day." 67The hearsay or assumption-based nature of Mr Tatosian's evidence on this topic was plain from the following extract of the evidence he gave at T112.21-T112.26: "Q. I don't think you mentioned the passionfruit before, where did the passionfruit get into it? A. That's the report I received from my produce manager when he came down and advised me that there's a customer eating a date and he'd bitten on a passionfruit which ended up on the other customer's clothing and also ended up on the - on top of the products." 68That evidence was in contrast with other evidence he gave in which he had conceded that he had not seen the plaintiff eat a passionfruit or a date: T112.48. 69Mr Tatosian gave the impression that he had seen the plaintiff eating prawns near the freezer. When clarification was sought for the basis of that evidence, he gave the following evidence, at T113.36-T115.20: 'Q. When you say you saw Mr Clarke consuming the prawns, was it more than one, or just one? A. They - the shells your Honour, I think I picked up three off the floor and there was a few in the - in the bag, the open bag. Q. So did you do the sum that there was three prawns? A. Well the ones I picked up from the floor, there were three. There was more in the bag, so I'm not sure how many your Honour, sorry. Q. So do I take it from this that you saw Mr Clarke eating shelled prawns? A. Well when you eat the prawns that you get the shells out and throw them. Q. So you're motioning with two hands as if he's shelling the prawn and then eating the contents of the flesh? A. I didn't see the two hands to be 100% honest. It was just something, like he's consuming in his mouth and just throwing the shells on the floor and then - which I didn't see him peel the prawn shells. EVATT Q. You need both hands to unshell a prawn don't you? A. Yeah, but I didn't see him with - doing it with two hands. Q. You didn't see him unshell it? A. No. Q. You didn't see him unshelling a prawn with two hands, or even one hand? A. I've seen him in the one hand, yes Q. Unshelling a prawn? A. Seeing one hand moving up and I've seen shells thrown on the floor. Q. And holding a bag in the other hand? A. The bag was on the trolley. Sitting on the trolley. There's a trolley, you can have that baby seat out the front, like a baby part for the kids and it was placed on there. Q. Can I suggest to you your eyesight's defective and you didn't see any such thing? A. What was the question, sorry? HIS HONOUR: There were two questions there Mr Evatt. EVATT: All right. Q. Can I suggest to you, you didn't see Mr Clarke unshell a prawn with one hand or at all? A. I didn't see Mr Clarke unshelling any prawns. I've seen him eating the prawns. I don't - I don't - I haven't seen him because he was moving that way, so his back was, you know, facing me. Q. You didn't see him unshelling the prawn but you saw him eating a prawn? A. Yes. Q. But it might have had a shell on it for all you know? The prawn he was eating may have had a shell on it? A. I've seen Mr Clarke consuming something of that bag and throwing the shells on the floor cause he was - walking that way and I was at the other end. Not in the front of that part of the aisle. Q. He might have eaten the prawn, retained the shells in his mouth and then thrown them on the floor after he'd eaten the prawn? A. Yeah, might have, but I've seen him throwing the shells on the floor and clearly it was some leftover shells in the bag. Q. When he was eating the shell did he have a happy look on his face, you know, as though he's enjoying it? A. I didn't see his face. Again cause he was the other - facing the other way. HIS HONOUR Q. When you say you saw these things, I get the impression from what you said that he was walking while this was happening, is that a correct impression? A. That's correct. Q. Now walking away from you? A. He was - he was pushing the trolley walking around the - along the freezer case. Q. Towards you or away from you? A. Sorry? No. Away from me, yeah. Q. What was the distance between you and him? A. 5 metres." 70Notwithstanding the evidence cited in the preceding paragraph, which does not support an acceptance of Mr Tatosian's claimed observation of the plaintiff eating a prawn, Mr Tatosian said to the plaintiff "Look sir, I've seen you eating those prawns": T116.33. 71Mr Tatosian explained his stance of not confronting the plaintiff at T117.4-T117.43: "Q. Did you say to him, "I saw you hide the wrapper"? A. Yes. Q. This is suspicious criminal conduct, isn't it? Eating prawns, failing to pay for them, hiding wrappers? A. Yes. Q. Well, is that not accusing him of stealing, of being a thief? A. No, I didn't accuse him. Q. Well you said that? A. Yes, I provided service for Mr Clarke. Sometimes customers do forget things around and the professional way to approach those matters is just go and provide service. Q. When you said he hadn't paid for eating prawns you were implying that he was a thief and stealing the prawns? A. I haven't said he hadn't paid for them. I offered him to pay for the prawns. I didn't accuse him at any time. Q. No, but you said in effect, "You have eaten the prawns and you haven't paid for them" you said that? A. Yes, I said that. Q. That implies, does it not, to your mind that he has done something wrong and he is a thief? A. I didn't say he was a thief. Q. I know you didn't say it but in your mind did it imply to you that he was a thief? A. I was more conscious around the food hygiene practices and food safety in the store than three or four prawns eaten. Q. But I don't think you are quite answering the question. When you said to him, "You have eaten prawns and you haven't paid for them" did you think in your mind, although you didn't say to anyone, "This man is a thief"? A. No. Q. Why not? A. Again my job is to provide service, not to accuse customers." [Emphasis added] 72Mr Tatosian said that he made a statement about the incident about 16 months after the events occurred. He said that he "had a brief view of that statement about 2 years before the hearing, and had not looked at it since": T119.10-T119.42. He later said he had looked at the statement before Christmas, which was some eight weeks before the trial. On that basis, Mr Evatt sought that the statement referred to by Mr Tatosian be produced for inspection. Mr Weaver objected to the production of that document on the ground of legal professional privilege. I over-ruled that objection. Mr Weaver requested that reasons be provided for that ruling in my reasons for judgment: T122.20-T122.27. My reasons for that ruling are set out in the paragraph that follows. 73When Mr Tatosian's statement was called for, it became apparent that it was dated 29 October 2010, which was almost 14 months after the incident in question. It was also plain from Mr Tatosian's evidence that he had referred to his statement before he gave his evidence in these proceedings. On the evidence, it seemed to me that there was no other purpose for him doing so other than to seek to ensure that his evidence would be accurate. It was plain from those circumstances that he had refreshed his memory from the document. Although the dominant purpose of the document was that it had been prepared for this litigation, that privilege was no longer retained when Mr Tatosian referred to the document in order to refresh his memory, albeit some eight weeks before the trial. 74During the course of the cross-examination of Mr Tatosian that continued after the statement had been produced for inspection, it became apparent that Mr Tatosian's earlier evidence had included matters that were not included in his statement. It was later submitted that such matters adversely affected the reliability of the evidence given by Mr Tatosian. 75The first such matter concerned paragraphs 6 and 7 of Mr Tatosian's statement, which led to the following evidence, at T127.39-T128.22: "Q. We'll call him Mr Naval, and you and he saw the plaintiff pushing a Coles trolley, this is paragraph 6, in the area near the freezers, is that right? A. That's correct. Q. Then seven, you observed him, that's Mr Clarke as you observed him several items fell from his trolley and yet you couldn't see what those items were. A. No. Q. He stopped in front of a freezer and he spoke to a lady, a customer, right. What were those items that fell from his trolley? A. The prawn shells. Q. What? A. The prawn shells, the empty prawn shells. Q. No, look, you say in paragraph 7, "I observed several items fell from his trolley"? A. Yeah. Q. They wouldn't be prawn shells? A. Yeah, when I got close to the shop floor they were prawn shells. Q. But you wouldn't see prawn shells falling from a trolley. A. Yeah, from five metre distance. Q. Didn't you mean other items, goods? A. No, I meant those ones. Q. Well, you don't say you notice several scales falling from his trolley? A. No, I didn't know they were scales. Q. Well, what did you think they were? A. So, from five metre distance you wouldn't know what those things are unless you get closer to them." 76The second such matter concerned whether Mr Tatosian had actually seen the plaintiff eating prawns as was earlier alleged. In cross-examination Mr Tatosian agreed there was nothing mentioned in his statement about the plaintiff with one hand at the freezer eating a prawn or removing a shell: T130.10. In that regard, at T129.13-T129.19, his evidence was as follows: "Q. There is nothing about him eating the prawn or unshelling it with one hand. You don't mention any of that? A. I didn't mention that because I didn't see his hands. Q. But you said in evidence this morning you saw him do that? A. Yes, I saw him lifting his hand but I didn't see him unshelling the prawns. His back was facing me." 77It became plain from the evidence of Mr Tatosian at T130.15-T131.16, that he had not actually seen the plaintiff shelling and eating prawns, but had in fact made an assumption or deduction to that effect: "Q. That is because it never happened? A. It did happen sir because when you see shells falling from the trolley and the bag in place in the freezer, the bag ripped open and the same shells in the bag, you would think that has happened wouldn't you? Q. No, you might deduce that but you never saw the plaintiff eat a prawn with one hand or try and de shell it with one hand, did you? A. No. Q. No, but he put things in his mouth, I couldn't see it from the front. I keep saying he lifted his hand and started to obviously eating or something, which I didn't know they were the prawns until I got to the shop floor closer to the freezer. Q. But you didn't see him put anything in his mouth, did you? A. No. Q. When you said this morning you saw him put a prawn in his mouth, that was just imagination or surmise on your part, wasn't it? A. Well, I didn't see him from the front, as I said, putting stuff in his mouth but I've seen him from the back lifting his hand and putting something into his mouth. Q. It could have been a cigarette? A. Well you're not allowed to smoke in the shopping centre. EVATT: Well it could have been anything. HIS HONOUR Q. If you were observing him from behind, does it not follow that you couldn't see his mouth? A. That's correct. Q. So then on what basis do you say he was putting something into his mouth and eating it? A. Because your Honour I've seen his hand moving up and then obviously I've got shells dropped on the floor and it was like, you know, not in one area, they were scattered as well, so. Q. Were these the same shells that were dropping from the trolley were they? A. They were the shells dropping from the trolley, or from his hand I should say. Q. Which was it? A. Sorry? Q. Hand or trolley? A. Hand. So they were the same shells in the open bag in the freezer. Q. You mean shells of the same type? A. Yes, same type of prawn." 78Mr Tatosian agreed that as he was observing the plaintiff from behind near the freezers, he had not seen the plaintiff put anything in his mouth: T131.34. That conversation raised a doubt as to the reliability of his testimony to the effect that, from a position from behind the plaintiff with the plaintiff's back facing him, he had claimed to have observed the plaintiff eating prawns. 79The third such matter was whether the plaintiff had actually eaten and consumed green prawns in front of the Coles staff, as distinct from biting into them and spitting them out. In that regard, Mr Tatosian's evidence at T129.33-T129.38 was as follows: "Q. ... A. Yes, maybe if you look yes, I don't recall what the prawns were but certainly when he got to the deli case, that is when he opened the window which normally no one knows that opens from the front, and consumed those raw prawns. I presumed they were the green prawns which he'd eaten in front of the team." 80That evidence was in contrast to the evidence given by the plaintiff. Ultimately, Mr Tatosian could not remember whether the prawns in question were either cooked or green: T130.1-T130.6. 81At T131.43-T132.6, Mr Tatosian explained his position in which he denied he had accused the plaintiff of theft, as follows: "Q. Well that is an accusation of theft, is it not? A. Well not really because, you know, sometimes you try to help a customer to pay the purchase and get on with life. I think that is the best way to handle it instead of calling loss prevention and police. So with the way we deal with our customers, we trust our customers and at the end of the day we have a business to run. Also if something goes wrong we try to highlight that to a customer and, potentially, if they are willing to recognise their mistake, or whatever they have done, they generally cooperate. Q. Yes, but he wasn't leaving the store, it wasn't as though he'd gone through the checkout and was leaving the store with the prawns on him and you saying he'd forgotten to pay for these? A. Yeah, because the pack was purchased by him or not purchased, asked by him from the deli, he obtained the bag and he put it in the freezer and the bag was open, and some of the prawns were consumed." 82Mr Tatosian agreed that some matters of which he had given evidence had not appeared in his statement. Those matters included his assertions that the plaintiff had called him a "little man", "stupid", and had asked him questions as to where he was born: T133-T133.20. It seemed to me that Mr Tatosian's evidence on these matters arose from reconstruction rather than actual memory, because if the plaintiff had said such things to him, from the context, it was likely he would have included reference to them in his statement. I gained that impression in view of his evidence at T133.22-T133.32, as follows: "Q. Where's that? It doesn't say that in your statement? Where is that in your statement? A. Well, I remember it now clearly that's what the words he used. Q. You remember it now but not when you made your statement? A. Well, the statement was made after a year and a bit after the incident, so I can't remember everything, you know, especially when you deal with thousands of customers every day, you have a busy job to do, so. Q. Well, what made you suddenly remember another year and a half on later? A. Well, things come to mind over time." 83In my view, the last cited comment by Mr Tatosian confirmed that his evidence was founded upon a significant degree of reconstruction of events over time rather than being based on an actual recollection. 84It seemed to me that Mr Tatosian's reference to the plaintiff having made racial remarks to him was unlikely to be correct. I consider that if such remarks had been made, it was highly likely that Mr Tatosian would have included reference to such remarks in his statement as being a matter of some significance and relevance to the dynamics of the events at the time. In the absence of such mention of such a remark in his statement, I consider that Mr Tatosian's reference to such remarks in his oral evidence indicates he was recounting an unreliable and reconstructed recollection. 85When questioned about the omission from his statement of any reference to the plaintiff having made racial remarks about him, he said that he "might have missed it on the day when we had the interview with the investigator": T135.15. At the time, I considered his explanation to be convenient, but not credible. 86There were other aspects of Mr Tatosian's evidence that gave me concern as to the reliability of his testimony. These included his statement that during the time when he said there was "noise" from the plaintiff, he had remained calm "the whole time" and "didn't say a word": T135.30-T135.35. That evidence was slightly different to his later evidence at T140.25 where he said "I didn't say many words", which appeared to me to be an understatement, which suggested to me that there had been some significant words spoken by him to the plaintiff. That impression is confirmed to me by Mr Tatosian's evidence at T141.10-T141.26, which suggested that there were words and actions that hinted at restraint: "Q. "We will not let you leave until we've seen inside your jacket and find those prawns"? A. No. Q. Well, you didn't let him leave anyhow. A. Yeah, but I didn't say those words. Q. Why didn't you let him leave? A. Well, I didn't stop him, he could have left and paid for the prawns. Q. If he paid for the prawns? A. I didn't say if, I just said my words were, "You forgot to pay for those prawns", after a while we had a - after he got upset and start abusing. Q. You were prepared to let him leave after he paid for the prawns, is that right? A. Yes." [Emphasis added] 87The last cited answer suggested for threshold consideration that there was some force to the plaintiff's evidence that he felt he had been detained against his will, but that impression has to be viewed against the evidence as a whole. 88As to whether Mr Tatosian had been pushed by the plaintiff with his walking stick, at T135.37-T135.46, Mr Tatosian's evidence was as follows: "Q. Now, 11, you say that the customer pushed you with his stick, is that right? A. He didn't push me with a stick, he put the stick on my chest trying to push me. He put his hand on my shoulder and that's when I asked Mr Clarke to remove his hand, which he did. Q. Where is anything about touching you with a stick, it is not there is it? A. Perhaps not. Q. No, because he didn't do it? A. He didn't put his hand? Put that there? Q. Probably to retain his balance, is that right? A. No." 89Mr Tatosian gave conflicting evidence as to whether or not the plaintiff had been encircled by people at the scene, as the following extract from T136.10-T136.49 shows: "Q. Is that right? A. No, he moved around, he took his jacket off, he approached me, tried to push me. Q. But he didn't move from that spot? A. Well, he did move around. Q. Move around where? A. Around me. Q. But within the circle? A. That's correct. Q. Like a prisoner in the prison cell? A. There was no circle. HIS HONOUR Q. Didn't you just agree with Mr Evatt's proposition "within the circle". Didn't you say yes to that? A. I thought he was talking like the area, not meaning a circle surrounded by people. Q. Can you help me with this. Which action came first. Was it the plaintiff, as you say, putting his right hand on to your left shoulder or the action of placing his stick against your chest? A. The stick first. He didn't push me, he just touched the chest and just dropped it down, but I remember exactly when he put his hand on my chest and that is when I thought I'd end the situation after that. EVATT Q. Well, you certainly don't mention that he touched you with his cane, do you? A. No, it's not in this statement. Q. No, because it didn't happen, did it? A. It did happen." 90There was an internal discrepancy in the evidence of Mr Tatosian where at one point he claimed the plaintiff had placed his hand on Mr Tatosian's shoulder, and in this last cited evidence, where it was claimed the plaintiff had put his hand on Mr Tatosian's chest. 91Mr Tatosian denied saying to the plaintiff that he had hid the wrapping for the prawns, that he had been stealing prawns, that he should open his leather jacket and his pockets, or words to that effect: T140.25-T141.15; T142. 92Mr Tatosian stated that the plaintiff had become upset and was abusive to him in the course of their verbal altercation: T141.22. He conceded the plaintiff had denied the accusation that he had eaten prawns: T141.39. He agreed that the plaintiff could not have been taken to have stolen prawns as he had not at that stage left the premises: T142.35. He agreed with the proposition that he "intended to convey or impute" that the plaintiff had eaten prawns in the supermarket so he would not have to pay for them: T143.9. The foundation of that view was dependent upon whether the plaintiff had firstly, eaten some of the prawns, and secondly, had secreted the wrapping in the freezer as was alleged against him. 93The assumptions made by Coles staff which led to the confrontation with the plaintiff were evident from the following passage from Mr Tatosian's evidence at T142.25-T143.1, as follows: "Q. You intended, when you spoke to the plaintiff, to convey that he was a thief? A. I didn't say that. Q. Did you intend to allege or convey that he was a thief? A. No. Q. Did you intend to convey or allege that he stole prawns from the supermarket? A. He didn't steal prawns because he didn't leave the premises. Q. Say that again? A. He didn't leave the premises, so it wasn't technically stolen prawns. Q. So you didn't intend to convey that he stole prawns from the supermarket? A. No. Q. Did you intend to convey or impute that he hid the wrapper in order to conceal the prawns he stole? A. I've seen him hiding the wrapper, yes. Q. So you meant to convey that he hid the wrapper in order to conceal the prawns he stole? A. Not really. I think what happened is he tried to help himself with those prawns and hidden the wrapper in the freezer. That's where the whole thing started." 94After the plaintiff had the confrontation with Mr Tatosian he contacted the defendant and asked for access to the CCTV footage of the incident. At the time of making the request it was unlikely he would have known there was no such footage. In my view, this suggests the plaintiff had a genuine sense of grievance he was seeking to have addressed, and that he was correct in his account of the events. T143.50. 95Mr Tatosian's statement indicated that he could not tell at the time of the events in question, whether the plaintiff was under the influence of drugs or alcohol. His explanation for including that reference in his statement was the plaintiff's actions in that he "kept going", this being a reference to him remonstrating to Mr Tatosian in the course of the events: T145.1-T145.18. 96Mr Tatosian said that as manager of the store, he had not spoken to the police who attended on the day in question: T146.5; T147.1-T147.12. He could not explain the reference in the police report to the manager having been spoken to and having indicated that he was happy with the outcome of the plaintiff having left the store and wished no further police action: T147.10.

Mr Velaga's version 97The evidence of Mr Velaga did not advance any analysis of the issues to be decided in the proceedings. Mr Velaga was the delicatessen section manager on duty at the time of the events in question. 98He had seen the plaintiff in the store on many occasions before the date in question. The defendant sought to call evidence from Mr Velaga concerning the actions of the plaintiff in connection with the front of the delicatessen counter on an earlier date. After hearing submissions from the parties I determined that the proposed evidence as adverted to during submissions on the point had no probative value and it was not advanced on the basis of alleged similar facts. Mr Velaga was then excused as no further questions were directed to him.

Ms Sternbeck's version 99The defendant called Ms Sternbeck to give evidence. She was a service assistant member of the defendant's delicatessen staff working behind the seafood counter on the day in question. 100Ms Sternbeck said that she had served the plaintiff only once on the day in question, and in that transaction, she had wrapped, priced and weighed a 500 gram parcel of prawns for him, and had placed the parcel on the counter in those events. She said she recalled seeing the plaintiff with the parcel in both hands. There was no accompanying description from Ms Sternbeck as to whether at that time, the plaintiff was using his walking stick, or whether he was also holding onto or leaning on a shopping trolley for support. 101Ms Sternbeck described an interchange between the plaintiff and Mr Tatosian in which she recounted her recollection to the effect that Mr Tatosian had approached the plaintiff and used words to the effect "they had been watching him walking around the store sampling the produce". The observers to which those words related were not identified by Ms Sternbeck as at the time, the words were said to have been directed to the plaintiff by Mr Tatosian. 102Ms Sternbeck described the plaintiff's response to being spoken to by Mr Tatosian as involving a loss of temper on the plaintiff's part, followed by him throwing the parcel of prawns down towards the manager's feet in a manner that was verbally aggressive, following which the plaintiff started to swear and scream at Mr Tatosian at the top of his voice. She could not recall whether the parcel of prawns had been opened at that time. She described these events as having occurred in the presence of the manager who was second in charge, Ms Katrina Elward. She could not recall how many staff and customers were standing by in the vicinity of the events. 103Immediately following these events, Ms Sternbeck said she had been called away to serve a customer. She said she later saw Mr Tatosian and the plaintiff leave the area in opposite directions, following which she said she described the plaintiff as having "ran to the deli" counter to seek her assistance as a witness to the events: T157.27. In cross-examination she said "I just agreed with him because I didn't trust his temperament after witnessing his behaviour, so I just agreed. I thought it best to agree with him": T167.14. Ms Sternbeck's evidence in this regard raised a doubt in my mind as to the reliability of her evidence as it was difficult to envision the plaintiff having "ran" to the delicatessen counter, given the plaintiff's physical condition and his reliance on the use of a walking cane. 104Ms Sternbeck was unable to describe the interval of time over which the interchanges between Mr Tatosian and the plaintiff continued before ceasing. She did not see any physical contact between the plaintiff and Mr Tatosian, including any contact with a walking cane. 105In cross-examination, Ms Sternbeck variously denied, or did not agree, with a series of propositions that had been put to her in cross-examination because she did not recall the suggested occurrences, namely, that she had served the plaintiff two bags of prawns on separate occasions on the day in question: T158.40; that the plaintiff had been encircled when speaking with Mr Tatosian: T161.39; that Mr Tatosian had used the word stealing to the plaintiff: T163.13; that the plaintiff had been accused of hiding the wrapper of the prawns or that he had been asked to take off his jacket or even whether he had been wearing a jacket: T163.15-T163.26; whether the manager had identified to the plaintiff the names or types of any produce he had been seen to have been sampling in the supermarket: T163.40. 106Ms Sternbeck specifically stated that she had not seen the plaintiff eat a prawn, or bite into one, or spit out a prawn in the presence of Mr Tatosian: T165.25-T164.42. 107Ms Sternbeck said she was horrified at the plaintiff's conduct in screaming at the top of his voice as she had never witnessed such behaviour before, and she described it as more like a tantrum, describing Mr Tatosian's tone in contrast as being modulated, and a quite normal manner of speaking T164.5-T164.22. Ms Sternbeck's evidence left me with the firm impression she had disapproved of the plaintiff's behaviour as she perceived it. 108Ms Sternbeck's observations appeared to be influenced by four relevant factors. First, she was short-sighted in her vision, and had to wear glasses for reading, and was not wearing glasses at the time of the events: T164.40-T164.48; secondly, as a consequence of Ms Sternbeck's need to attend to customers, she was not paying particular attention to the unfolding events during their entirety: T156.47; T 156.33; T161.32; thirdly, she did not recall all the events: T159.9; T165.42; and fourthly, she said she was horrified by the events: T164.5, which had the potential to influence her recall of the events at the time. I formed the view that on significant matters of factual dispute, Ms Sternbeck's evidence was a reconstructed account rather than an accurate recollection based upon observations made at the time.

Ms Elward's version 109The defendant called Ms Katrina Elward as a witness. At the time, she was a store support manager at the defendant's Lane Cove store, which meant that she was the person who was second in charge to Mr Tatosian at that store. 110The perspective starting point of Ms Elward's involvement in the incident was that she had been told about a customer eating fruit and spitting bits onto the floor. T171.34. That person who had allegedly told her this, was later identified in her evidence as being Mr Naidu: T178.47. There was no evidence called which supported that latter assertion that the plaintiff had been spitting bits of fruit onto the floor of the supermarket. 111Ms Elward said she was with Mr Tatosian at the time when he took a package from a freezer that looked like the package that Mr Tatosian had later described as having been opened. She stated that the package contained some prawns and some shells of prawns that had apparently been eaten: T171.35-T171.44; T172.15. 112Ms Elward said she then followed Mr Tatosian to another section of the store near the delicatessen section where she had seen him speaking to the plaintiff: T172.16-T172.47. 113Ms Elward could not recall the actual words of the conversation between the plaintiff and Mr Tatosian, but she believed the plaintiff was getting angry, louder and aggressive whilst speaking with Mr Tatosian: T173.3. She also claimed that the plaintiff was swearing and waving his walking stick around in what she took to have been in a threatening manner: T173.23. She claimed to have observed the plaintiff actually tap Mr Tatosian on the chest with his walking stick a few times, describing that contact as being "quite ... a few sharp.": T173.49-T174.8. She also described the contact as having "a bit of force behind it" and that the contact occurred "several times", being at least twice, if not more, and with aggression on the part of the plaintiff: T174.14-T174.29. 114Ms Elward recounted her observation to the effect of the plaintiff taking a prawn from either a package or from the delicatessen counter, and biting it and then spitting it onto the floor towards Mr Tatosian: T175.13. 115Ms Elward said that she was some 4 metres away from Mr Tatosian at the time, and she said that she had not heard Mr Tatosian say to the plaintiff, variously that he had been stealing prawns, that he had been hiding the wrapper, that he should open his leather jacket to permit inspection inside, that he should open his pockets, that he would not be allowed to leave until the remainder of the prawns were seen; and that he was not free to leave until he admitted to stealing prawns T175.40-T176.41. 116Ms Elward explained that she had only been present for a couple of minutes and no more than 5 minutes of the interchanges between the plaintiff and Mr Tatosian: T177.26-T178.11. 117Ms Elward said she had not seen an incident whereby the plaintiff was seen to throw a packet, presumably containing prawns, onto the floor at the feet of Mr Tatosian: T180.50-T181.4. She described the plaintiff as at one stage being about 12 inches away from Mr Tatosian, whom she said had kept a conversational tone in his voice the whole time: T181-23-T181.38. 118Ms Elward said that Mr Tatosian had not become aggressive to the plaintiff, and she denied suggestions that he had said to the plaintiff, variously, that he had been stealing prawns, instead, she said Mr Tatosian had said words to the effect that the plaintiff might have forgotten to pay for something: T181.40-T182.1. 119At that time Ms Elward said she was not sure whether Mr Tatosian was holding the parcel or not: T178.23. In that regard, she referred to a package that had earlier been retrieved from the door of a freezer, and she said that she was with Mr Tatosian when he opened it, and it appeared that the package in question had already been ripped open by some unknown person: T184.46-T185.46. She described that package as having contained some prawns and some prawn shells: T191.4. 120Ms Elward gave her evidence after refreshing her memory from a statement on the Monday before the hearing: T188.33; T189.28. 121Ms Elward could not recall whether Mr Tatosian had variously said to the plaintiff; that he had hidden the wrapping paper of the parcel of prawns or; that the plaintiff had been eating prawns so he would not have to pay for them: T191.40-T191.49. 122When Ms Elwards's attention had been specifically drawn to the question of whether the parcel she described as having been found in the freezer had any Coles stickers or barcodes that would have operated as seals to the package, she said she could not picture the exact label, but she did recall that the label had been torn, but she had assumed it was a Coles label: T193.26-T196.41. In that regard, she gave the following evidence, at T193.43-T194.4: "Q. What had been torn? A. The label because that's how you open the package. Q. What lead you to think that it was a Coles label? A. It looked Q. I don't want you to speculate. I just want you to tell me what you remember? A. I remember a label being torn, like it had been opened, but Q. You're shaking your head, what does that mean? A. I'm not sure, like -"

Mr Wilson's version 123Mr Wilson, another Coles employee, who was second in charge at the Lane Cove Store at the time of the events in question, gave limited factual evidence because of his limited recollection of the events. 124His attention was directed to the events because he was working in a nearby aisle in the supermarket when he heard shouting, from about a distance of 40 metres, which he did not recognise: T195.45-T196.10. He said he came to the scene and observed the plaintiff and Mr Tatosian in conversation, but could not remember in detail the terms of the conversation, other than to say the plaintiff "was very agitated" and that Mr Tatosian was "Very calm, he was trying to calm the situation down": T196.29-T196.36. 125In answer to a question asked of him in evidence in chief, Mr Wilson said he arrived at the scene about one or two minutes after he had first heard "raised voices": T197.32. I took this evidence to mean that both the plaintiff and Mr Tatosian were speaking with raised voices. 126Mr Wilson said he remained in the vicinity of the scene of the raised voices for about 5 minutes, and said the conversation just "petred out just like a lull ": T198.1-T198.7. 127Mr Wilson gave some apparently conflicting evidence concerning the plaintiff's use of his cane towards Mr Tatosian. At T198.29-TT198.41, he said he "got the impression [the plaintiff] might have hit him [Mr Tatosian] with it". In contrast, at T202.1-T202.3, when cross-examined on this topic, he could not remember the plaintiff striking or touching Mr Tatosian with his cane. This evidence persuaded me that Mr Wilson's evidence on this point was based upon speculative assumption rather than direct observation. 128In answer to a leading question asked in evidence in chief, and which was not objected to, Mr Wilson agreed with Mr Weaver that the plaintiff was acting in a belligerent way, or in an aggressive way, towards Mr Tatosian: T199.30. From the terms of the question, I considered the leading nature of that evidence, along with Mr Wilson's limited recall of the detail concerning the interchanges between the two, that I should attach only very limited weight to that part of the evidence of Mr Wilson. I take a similar view of the leading double question and single negative answer concerning Mr Wilson's state of knowledge as to whether a circle of persons had been formed around the plaintiff by staff members at the time of the incident complained of by the plaintiff: T200.7. 129As is apparent from his evidence at T201, Mr Wilson did not know what was actually being said in the interchanges between the plaintiff and Mr Tatosian. It appears to me that he had simply assumed from the fact that there were prawns on the floor that the discussion was "about prawns": T201.25-T201.33. This is also apparent from Mr Wilson's evidence at T202.20-T203.10, as follows: "Q. How far away were you from the store manager and Mr Clarke? A. Five or 10 metres. Q. When this was going on? A. Yes. Q. Closer than that? A. No. Q. Could you hear what they were saying? A. Not really, no. Q. You couldn't hear what they were saying? A. Not from what I remember, no. Q. Well, not a question of what you remember, were you too far away to hear what they were saying? A. Probably not, no, but I can't recall what was said. Q. But you must remember something about what it was about? You say you thought it was about prawns? A. It was about prawns. Q. Well, many people are spoken to in Coles about possible stealing aren't they? A. Yes. Q. Well, was it about possible stealing? A. Yes. Q. What did you think was stolen, the prawns? A. The prawns, yes. Q. You got that from what the store manager said? A. Yes. Q. Was Mr Clarke denying it? A. From what I remember yes he was. EVATT: Yes, thank you." 130The evidence given by Mr Wilson left me with concerns over the reliability and probative value of aspects of his evidence, a matter to which I shall return when considering the reliability of testimony and when identifying my findings on the disputed matters of fact that call for decision.

Mr Naidu's version 131The defendant called Mr Naval Naidu to give evidence. At the time the events in question occurred, he was the fresh produce manager at the Coles store at Lane Cove. 132It appeared that Mr Naidu held a negative view of the plaintiff, as was evident from his introductory evidence as to the events, in which he stated that on the day in question, the plaintiff went around "as usual" trying the goods before he bought them: T206.50; T208.9. In my view the tone of that evidence contained a criticism and was disapproving of the plaintiff. 133Mr Naidu described the plaintiff as having taste-tested produce: T207.45. He specifically described the plaintiff as having taste-tested a date and a passionfruit, during which he bit into a passionfruit and some of it splattered. He said nothing to the plaintiff about this: T207.48-T208.25. This may have been because it was the policy of Coles to let the customers try produce before buying. 134Mr Naidu said he next saw the plaintiff at the delicatessen counter where he had opened the window and with a hand, had taken a headless prawn and ate it: T209.20-T210.8; T 224.40-T226.10. At that point Mr Naidu left the scene to call Mr Tatosian. He said he next saw Mr Tatosian in the company of the plaintiff, conversing in front of the delicatessen counter: T211.25-T211.34. 135Mr Naidu claimed that in the conversation, the plaintiff was getting louder and had been using swear words, and it was hard for him to remember what was being said: T212.49. He was present at the scene for about 10 to 15 minutes: T213.3. Also present was Ms Elward, and persons identified as Dallas, and Daniel. These last-mentioned persons were not called to give evidence in the defendant's case although it appears they were employees of the defendant at the time of the events and they were in a position to give evidence of their observations of the events, if any. 136Mr Naidu stated that in the events "a lot of customers had gathered around" because of the commotion: T213.30. He later estimated these persons to have been about 5-6 in number at any one time: T213.47. Mr Naidu said he heard Mr Tatosian say to the plaintiff something like "where are the prawns": T214.18. 137Mr Naidu said he could not recall Mr Tatosian having variously suggested to the plaintiff that he had been stealing prawns, that he had hidden the wrapper, that he should open his leather jacket and his pockets, or that the plaintiff would not be allowed to leave the store until the inside of his jacket had been inspected and the prawns found, or that he had eaten the prawns, which amounted to stealing: T214.6-T215.12; T224.10-T224.35. 138Mr Naidu said he saw the plaintiff throw his jacket on the ground during the interchange with Mr Tatosian: T226.45. 139Mr Naidu said he saw the plaintiff "abusing" Mr Tatosian, and also banging his cane on the floor, waving his cane in the air and also touching Mr Tatosian with it: T215.20-T215.30. He said the plaintiff touched Mr Tatosian with the stick "a couple of times": T227.26. 140Mr Naidu also stated that in these events the plaintiff came very close to Mr Tatosian, who remained calm and had not raised his voice to the plaintiff: T216.18; T222.10. 141In cross-examination, Mr Naidu conceded that he had not heard the full conversation that had taken place between Mr Tatosian and the plaintiff: T216.28. He said he was at the scene for what he had described as some 10-15 minutes: T221.45. 142Mr Naidu confirmed that at the time of the conversation in question, the plaintiff had a packet of prawns and other produce in the basket of his shopping trolley: T216.48; T217.15. He said he had seen those prawns being wrapped before being handed to the plaintiff by the person serving him at the delicatessen counter: T217.20-T217.30. He described that packet as being absent from the trolley at a later time when Mr Tatosian was talking to the plaintiff: T217.48. 143Mr Naidu then described the interchanges between the plaintiff and Mr Tatosian, in which Mr Tatosian had asked the plaintiff "where is the packet of prawns?": T218.48. He denied suggestions to the effect that Mr Tatosian had said to the plaintiff that he had variously stolen, concealed or hidden the prawns: T218.40-T219.7. 144Mr Naidu agreed with the proposition that on the day in question, he had formed a suspicion of "foul play" on the part of the plaintiff because he could no longer see the items the plaintiff had obtained and which had previously been seen on the trolley: T220.28-T221.2. There was no evidence as to Mr Naidu's vantage point for such an observation, or as to the extent of his examination of the contents of the trolley basket to enable him to reliably make such an examination. 145Mr Naidu described the plaintiff as having been upset by the confrontation, and that he had responded to Mr Tatosian with words of affrontedness, to the effect "How dare you accuse me of stealing prawns": T223.30-T224.3. 146Mr Naidu said he had not seen the plaintiff spit out a prawn or prawns as described in other evidence: T226.49-T227.5. 147At T229.5, Mr Naidu described Mr Tatosian's conduct during the events as follows: "... A. I said before after the conversation he was more trying to calm him down because he was getting very loud and we were just asking, "It's fine, just leave the store because you are upsetting other customers". So, we were just trying to peacefully get him out of the store and get him to calm down, but he would not calm down, he would not move and he kept abusing the store manager." 148It was clear from Mr Naidu's evidence, that from the perspective of food safety, he regarded the plaintiff as being something of a wrongdoer in connection with his actions in sampling produce within the supermarket: T230.1-T230.22. This was so notwithstanding that Coles had a "try before you buy" policy, and notwithstanding that there were no signs that actually or explicitly prohibited the handling of produce: T231.42-T232.8. 149Mr Naidu indicated his disapproval of the plaintiff in his sampling of the produce and goods on display in the store. As was evident from his evidence at T232.22-T234.8, Mr Naidu did not accept the proposition that the plaintiff was an ordinary decent customer. I therefore consider that his negative attitude towards the plaintiff must be weighed and taken into account when assessing the reliability of the evidence of Mr Naidu.

Credibility and reliability of testimony 150Each of the witnesses necessarily gave their testimony from the perspective of what they had perceived of the relevant events, and within that testimony there were conflicting factual accounts. In forming my views as to which testimony should be preferred as representing the most reliable account, I considered that each of the witnesses did their best to recount the events to the best of their abilities. Nevertheless, as explained in the paragraphs that follow, I formed the view that some of the accounts were not relevantly reliable. In arriving at my views on the credibility and reliability of the testimony given, I was cognisant of the fact that there was a body of evidence from Coles employees that was opposed to that of the plaintiff. In my view it is sufficient to analyse the evidence of the individual witnesses for reliability without having to speculate on how that body of evidence came to be in conflict with the plaintiff. In my view the evidence of the individual witnesses stands to be assessed for reliability individually rather than having to be resolved as a body of evidence, especially as there were elements of internal conflict within the evidence of the defendant's witnesses.

Ms Sternbeck 151I considered that the evidence of Ms Sternbeck should be viewed with considerable caution. I took this view because it was plain that her evidence contained an exaggerated account of the events. This became apparent from her claim that after the altercation between the plaintiff and Mr Tatosian, the plaintiff ran up to the counter where she was serving, and used the language that has been earlier cited. The uncontroverted evidence is that at the time of the events, and at the trial, the plaintiff has a disability of his spine that affected his mobility, including dependence on the use of a walking cane for support. In those circumstances, I considered that it was improbable that the plaintiff ran to the counter in the manner described by Ms Sternbeck, and therefore that the evidence she gave of her claimed observations of the events should be discounted. 152Before discounting the evidence of Ms Sternbeck on that account, I considered, but discounted the possibility, that she had employed a figure of speech in her description that the plaintiff had run to her counter in the manner she described. I discounted that possibility because it was plain that in her evidence, Ms Sternbeck, who was quietly spoken, and did not otherwise resort to hyperbole, gave her evidence slowly and with what appeared to me to be measured deliberation with a careful choice of words. These matters persuaded me she had given an unreliable account of the plaintiff having run to the counter where she was located. 153From the perspective of the reliability of her evidence, I was concerned that Ms Sternbeck had, at the time of her post-altercation conversation with the plaintiff, humoured him and regarded him with some distrust or disdain, having described that she was horrified by the events at the time, which seems to me to have coloured her recollection and her reconstructed account of the events, as earlier referred to at paragraph [109] above. 154Furthermore, I do not accept her evidence that the plaintiff used the swear words that she had recounted and attributed to him in her description of how the plaintiff had described Mr Tatosian's behaviour. In that regard, I accept, prefer and accept the plaintiff's evidence that he did not use those words.

Mr Chapman 155Mr Chapman perceived, correctly, that in the events, a heated verbal altercation had been taking place between the plaintiff and Mr Tatosian and he had therefore decided that he should intervene in order to calm the situation as he was concerned that those events could escalate with possible adverse consequences. 156I accept that Mr Chapman was an entirely independent witness to the events. Although the defendant attempted to demonstrate that Mr Chapman had a prior acquaintance between the plaintiff, thereby raising an implication that his testimony may have been partisan, that suggestion has not been made out, and it was contrary to my impression of that evidence. I considered that Mr Chapman gave entirely credible evidence and I accept that he gave a reliable and accurate account of the events that he described in his evidence.

Ms Elward 157I considered that Ms Elward's account of the events was to an extent coloured by matters that she was told by others and what she had assumed about the plaintiff, and because she was only present for some 5 minutes or so of the period during which the confrontation between Mr Tatosian and the plaintiff had proceeded to unfold. 158In view of her limited exposure to the events, I consider that in the course of his intervention, Mr Chapman was in a far better position than Ms Elward to describe the nature of the interchanges between the plaintiff and Mr Tatosian, and I therefore prefer Mr Chapman's account of those events to the account given by Ms Elward. In particular, I do not accept Ms Elward's evidence that Mr Tatosian maintained a conversational tone with the plaintiff during the whole time she observed the events. Instead, I accept Mr Chapman's independent account of those events in which he described Mr Tatosian's treatment of the plaintiff as undignified, in the context of a heated exchange. 159Furthermore, it appeared to me that despite refreshing her memory from a statement on the Monday before the trial commenced, Ms Elward was unsure of aspects of her evidence and was unable to recall some significant matters of detail, as earlier described, at paragraphs [119] to [122] above. 160These matters caused me to doubt the reliability of Ms Elward's evidence on critical matters. I did not consider Ms Elward's evidence provided a proper basis upon which to discount the evidence of either the plaintiff or that of Mr Chapman. I therefore preferred the evidence of the plaintiff and Mr Chapman to that of Ms Elward.

Mr Wilson 161I do not accept Mr Wilson's account in which he described Mr Tatosian's demeanour as being very calm and attempting to calm the situation down. I arrived at this conclusion because it was inconsistent with the very circumstances in which Mr Wilson's attention was drawn to the situation, namely because he had heard raised voices, that is, more than one raised voice. In that context, there was no suggestion that Mr Chapman's voice was one of those raised voices. The raised voices Mr Wilson heard could only have been those of the plaintiff and Mr Tatosian. That conclusion is inconsistent with the evidence of Mr Wilson to the effect that Mr Tatosian was "very calm" in the circumstances. 162Furthermore, even allowing for the concession made by Mr Wilson that he had a limited recollection of events, I also find his evidence to be unreliable as to critical matters because on an important matter, namely whether or not the plaintiff had used his walking cane to make physical contact with Mr Tatosian, Mr Wilson ventured a speculative opinion based upon an impression and an assumption that this "might" have happened, rather than through direct observation by him. 163Given that Mr Wilson was prepared to advance such a speculative view as fact, taken together with his limited recollection, and taking into account the matters of weight concerning the evidence of Mr Wilson that I have already outlined at paragraphs [127] to [130] above, this led me to the view that I should not rely on Mr Wilson's evidence in preference to that given by the plaintiff and Mr Chapman.

Mr Naidu 164I consider that I could not rely upon the evidence of Mr Naidu as a basis upon which to reject the evidence of the plaintiff. This is because, as I have already observed at paragraph [133] above, Mr Naidu was negatively disposed or disapproving towards the plaintiff in a critical sense, and his perspective was that he suspected there had been wrongdoing or foul play on the part of the plaintiff. I considered that his view of the relevant events as he related them, was affected by those notions, and caution requires his evidence on critical matters of dispute should not be relied upon as a basis for rejecting the evidence of the plaintiff. 165Whilst I accept Mr Naidu's observation that the plaintiff was becoming louder in his conversation with Mr Tatosian, based upon my acceptance of the evidence of Mr Chapman, I do not accept that Mr Tatosian had remained calm during the course of those events, and I do not accept that he had not also raised his voice to the plaintiff. 166I do not accept as reliable, Mr Naidu's evidence of his observation that the plaintiff had touched Mr Tatosian with his walking cane a number of times: T227.26. This is not only because of my acceptance of the evidence of the plaintiff in this regard, but also because of the terms of the evidence given by Mr Tatosian on this issue, when compared to the contents of his statement, Exhibit "4", which made no reference to the plaintiff touching him with his walking stick. 167Mr Tatosian stated that he had been tapped on the chest with the plaintiff's walking stick: T104.24. This important piece of evidence was not included in his statement and his acknowledgment of that fact was somewhat off-hand: T135.37. 168Whilst Mr Naidu's evidence concerning the plaintiff touching Mr Tatosian with his walking stick a number of times is supported by Ms Elward's evidence that there was such contact "a few times" being with some force, and "sharp" at least twice "if not more" (T173.48 - T174.25), absent similar evidence from Mr Tatosian, I do not accept their evidence on this point. 169If the plaintiff had tapped Mr Tatosian on the chest with his walking stick on a number of occasions, accompanied by aggressive behaviour as was claimed by the defence, it would be expected that Mr Tatosian would have included such an event in his factual statement about the matter. The absence of any mention of the matter in his statement leads me to conclude there was no such contact as claimed, and that the accounts to the contrary by Mr Naidu, Ms Elward and Mr Tatosian have been inaccurately reconstructed after the events.

The plaintiff and Mr Tatosian 170As the evidence of the plaintiff and Mr Tatosian is in conflict in material respects, it is convenient to examine their respective testimonies together. Before going to the detail of those testimonies it is relevant to record some aspects of the apparent demeanour of these two witnesses. 171First, there was nothing that emerged from the demeanour of Mr Tatosian whilst giving his evidence that provided a basis for doubting his testimony. That testimony stands to be analysed for its reliability according to its content, when considered in the light of the evidence as a whole. 172Secondly, with regard to the evidence of the plaintiff, it was obvious that he conducted himself and expressed himself with a degree of flair and eccentricity, at times expressing an attitude of affront at some of the propositions that were put to him in cross-examination. In accordance with well settled principles, I have disregarded these matters of demeanour in making my assessment of the reliability of the plaintiff's evidence. Notwithstanding that matters of personality and temperament may have some bearing on demeanour and in that sense, reliability of testimony, the plaintiff indicated that he was in some pain whilst giving his evidence: T53-T54. In this regard, he needed to stand at times when in the witness box. In this case the plaintiff's report of pain in those circumstances is a further good reason for avoiding a demeanour-based assessment of the reliability of the testimony of the plaintiff, and I have therefore eschewed such a course. 173I have concluded that on a comparison of the respective testimonies of the plaintiff and Mr Tatosian, I should prefer the evidence of the plaintiff to that of Mr Tatosian on the relevant points of difference in their accounts of the events. 174I have come to that view because it was plain that significant points of detail of Mr Tatosian's account of events were reconstructed well beyond the terms of his statement, which comprised Exhibit "4", and which was prepared at a time when the events would have been fresher in his recollection. 175The expansion of the account given in the oral evidence of Mr Tatosian so as to include an allegation of having been tapped on the chest by the plaintiff's walking stick, and the discrepant accounts of the assertion of having variously been pushed and touched on the left shoulder, as stated on page 4 of his statement, compared to his oral evidence at T141.30, where he claimed the plaintiff touched him on the chest with his hand, and the matters I have identified in earlier paragraphs concerning the reliability of the evidence of Mr Tatosian, persuaded me that he had unreliably reconstructed his evidence in material respects. 176Those matters included matters such as a preparedness to say he had seen the plaintiff eating prawns by the freezer when he conceded that he could not have seen this as the position of the plaintiff's back had concealed from his view what the plaintiff's hands and mouth were doing from Mr Tatosian's vantage point of being some 5 metres away [69] above and [75]-[78] above; the exaggerated assertion that he had seen the plaintiff take a bunch of raw prawns and throw them on the floor after biting into one [63] above; and claim, contrary to the evidence of Mr Chapman, that throughout what Mr Tatosian had described as the plaintiff's "noise", he did not say a word (T135.30-T135.35) are examples of matters where I am persuaded that Mr Tatosian's evidence was unreliable. 177In arriving at these views I have not lost sight of the fact that the plaintiff was emotionally upset in the events that he described in his evidence, and this state of upset could have easily coloured his perception and recollection of the events. However, I have placed little weight on that consideration as a basis for discounting the evidence of the plaintiff because, from the detailed description given by the plaintiff and Mr Chapman, such an emotionally charged event, and the detail of that event, would have been more likely to be accurately impressed upon his memory and recalled by the plaintiff as a significant one-off traumatic event in his life in connection with the unpleasantness he encountered in the supermarket on the day in question. Whilst the plaintiff may have had an accentuated reaction to the events, I do not consider that his recollection of the events was inaccurate. Accordingly, I prefer his account to that provided by the evidence of Mr Tatosian.

Factual findings on conflicting evidence 178I am satisfied from the evidence that the plaintiff became affronted, angry, upset and distressed when he was spoken to by Mr Tatosian, and that during their confrontation, the plaintiff had addressed him in a loud voice, consistent with that reaction. 179The plaintiff impressed me as an intelligent and rational, albeit eccentric person. The evidence adduced by the defendant indicates that at the time of the events, the plaintiff did not appear to have been affected by alcohol or drugs. That evidence begs the question as to what caused the plaintiff to become so angry as to remonstrate with Mr Tatosian in the manner he acknowledged. 180In coming to the view that the plaintiff became angry when confronted, and had in the process raised his voice as a mark of his upset and anger at having been wrongly accused and confronted, I do not accept that the plaintiff used the swear words that had been attributed to him by the defendant's witnesses. I accept his denial that he used such words and I do not accept the reliability of the contrary accounts that attributed such words to him. 181When considering the array of evidence that could possibly explain the plaintiff's angry reaction to being confronted by Mr Tatosian, it seems to me that something must have been said to cause the plaintiff to be so affronted and become so upset. In my view, this was most likely to have been due to the accusation by Mr Tatosian, made to him aggressively, to the effect that he had stolen prawns, which was a very public attack upon his honesty. 182I accept the plaintiff's account of the precipitating events in which he returned to the seafood counter to obtain a top-up of a further quantity of prawns. I accept that whilst he was near the seafood counter in the supermarket, the plaintiff found himself confronted by Mr Tatosian, who spoke to him in terms which the plaintiff outlined, and which I have summarised at paragraphs [22] to [26] of these reasons. 183I accept that the ensuing confrontation continued in an aggressive tone for at least some 10 minutes or so, until Mr Chapman intervened in the manner he described. I accept that this confrontation occurred in the presence of at least some 30 persons, some of whom were Coles staff, and others who were Coles customers, some of whom the plaintiff knew by sight from the neighbourhood, making it likely that the "grapevine effect" would apply to the dissemination in the local community or publication of the events. 184I am satisfied that in his evidence the plaintiff has truthfully recounted the substance of the accusations made to and against him by Mr Tatosian, and that such assertions were untrue. 185I also accept that the effect on the plaintiff of these publicly made untrue allegations was to cause him to feel unwell, dry in the mouth, upset, distressed, outraged, humiliated and stressed, in the manner that he described in his evidence. 186I find that the observations claimed to have been made of the plaintiff by Coles staff when he was at the freezer section, in which he was variously alleged to have eaten raw prawns, dropped empty prawn shells on the floor and concealed a torn paper wrapper in the freezer, to have been based on inaccurate and unreliable reconstructions and assumptions that should be rejected. 187I also do not accept the account by which the plaintiff was alleged to have grabbed a handful or a bunch of prawns from the seafood display section rather than from the packet he had replaced onto the serving counter whilst waiting to be served, and provided with an additional top-up quantity of prawns to the 500 grams that had initially been supplied to him, as he had explained. 188I also accept that in the ensuing interchange with Mr Tatosian, the plaintiff became so angry and frustrated that he bit into a raw prawn and then allowed it to drop to the floor as a demonstration of the disgust he felt at having been wrongly accused by Mr Tatosian of eating raw prawns in the store as alleged. 189I also accept that in response to the request by Mr Tatosian for him to produce for inspection the prawns in dispute, the plaintiff took off his coat and made it available for inspection by throwing it onto the floor in front of Mr Tatosian. I do not accept that he threw a packet of prawns onto the floor as was put to him by the defendant. I accept that the packet of prawns that the plaintiff had earlier obtained, had been placed on the counter awaiting a top-up, as he had sought to explain to Mr Tatosian. 190I do not accept that the plaintiff either tapped or pushed Mr Tatosian on the chest or elsewhere, either with his hands or with his walking stick. In the dynamics of the circumstances, it would have been most unwise for the plaintiff to have done so, and I do not accept that he did these things, as was alleged against him. 191I do not accept that the plaintiff dealt with the defendant's prawns in any way which suggested dishonesty on his part, or which indicated an intention on his part not to pay for them, or that he had intended to steal them. 192Whilst in the circumstances the plaintiff may have felt somewhat encircled by people in the vicinity, and therefore restricted in his mobility in the area during the confrontation, I find that this was not to the extent that he was being "imprisoned" as he had alleged. Rather, I find that the plaintiff had stayed at the scene more as a result of his feelings of affront and upset, and due to his desire to confront and answer his accuser, as well as due to his physical restrictions consequent upon his back condition. 193I shall return to aspects of these matters in connection with the individual claims made by the plaintiff in tort where it becomes relevant to do so.

Cause of action framed in defamation 194In paragraph 5(a) to (e) of his Further Amended Statement of Claim, the plaintiff claims the following imputations arise from the words uttered by Mr Tatosian: (a)The plaintiff is a thief; (b)The plaintiff stole prawns from the supermarket; (c)The plaintiff hid the wrapper in order to conceal the prawns that he stole; (d)The plaintiff hid prawns which he had stolen from the supermarket in his jacket pockets; (e)The plaintiff ate the prawns in the supermarket so that he would not have to pay for them.

Findings concerning imputations 195I find that each of these pleaded imputations, not differing in substance from each other, and arising from the words used by Mr Tatosian, self-evidently conveyed a meaning that was defamatory of the plaintiff. This was in as much conceded by counsel for the defendant in his final submissions. 196I find that the words spoken by Mr Tatosian did imply that the plaintiff had either stolen or was in the process of stealing prawns whilst still within the store and had concealed the wrapper or the merchandise in his clothing, or that he had eaten them. Mr Tatosian's comments were made within the hearing of a number of Coles employees and within the hearing of numerous customers of Coles who were also present, either because they were passing, or because they had in curiosity gathered around the evolving scene to observe what was happening in the heated interchange that had unfolded. 197I therefore find that the plaintiff has established that the words complained of, and the subject of my earlier stated findings, were relevantly published so that they became actionable in these proceedings. I also find that the plaintiff was thereby exposed to ridicule and contempt. I accept the plaintiff's evidence that he felt upset and humiliated at these events such that, subject to a consideration of the available defences, the events should sound in damages for defamation for the presumption that arises concerning hurt to his reputation: Mirror Newspapers Limited v Fitzpatrick (1984) 1 NSWLR 643 at 656; Bristow v Adams [2012] NSWCA 166 at [49]. 198In this context, it is therefore necessary to consider the defences relied upon by the defendant. The defendant relies upon the defences of common law qualified privilege and the statutory privilege claimed to arise pursuant to s 30 of the Defamation Act 2005.

Defence of qualified privilege at common law 199In my view, the defence of common law qualified privilege fails in this case. Whilst there might have been a reciprocity of interest between the parties where the store manager had a duty to raise with the plaintiff his concerns over store security, as it was put, and the plaintiff was a person to whom such an enquiry may have been legitimately addressed, I consider that the store manager went too far by making his accusatory remarks loudly and in public, and in such an aggressively confrontational manner. 200The other customers present in the store at that time had no reciprocity of interest other than in curiosity in being exposed to such circumstances and interchanges. 201An enquiry by the store manager over the payment or suspected non-payment of merchandise could have been made far more discreetly without causing such a scene of immediate confrontation, embarrassment and curiosity amongst those who had gathered around, and at a stage where the plaintiff had not yet had the opportunity to defend himself against the assertions that were being put to him in public. The position would perhaps have been different if the plaintiff had refused co-operation, or if he had not agreed go to a more discreet place within the premises to have the required discussion, had he been afforded such an opportunity. 202Although the defendant argued that there was a reciprocity of interest with customers concerning public health issues arising from allegations that the plaintiff was sampling produce in the supermarket, on the state of the evidence, that did not justify the statements that I have found to have been made by Mr Tatosian, especially in view of the defendant's conceded policy, the effect of which was to "try before you buy". Accordingly, I do not accept that the asserted interest, and therefore the claimed privilege, extended to the customers who had gathered in the vicinity where the exchanges between Mr Tatosian and the plaintiff had occurred.

Defence of statutory qualified privilege - Defamation Act 2005, s 30 203Considerations concerning common law qualified privilege as outlined above also arise pursuant to the statutory privilege under s 30(1) of the Defamation Act 2005 with regard to the issue of reciprocity of interests, but subject to notions of reasonableness. 204The question concerning whether statutory qualified privilege applies to the circumstances is dependent upon whether the defendant believed, on reasonable grounds, that the recipient of the words which were conveyed had an interest in receiving the communication in question and therefore, whether it was reasonable for the publication to be made in the circumstances: s 30(2). 205The ultimate question in this regard is whether the defendant acted reasonably, and in determining that issue, the considerations set out in s 30(3) of the Act are relevant. Of those matters, s 30(3)(c), (d), (f), (g) and (h) seem to be the ones of predominant relevance. 206The analysis of reasonableness must commence with a consideration of whether it was reasonable for the store manager to aggressively confront the plaintiff with such serious allegations as he did, on such flimsy grounds, where he had no personal knowledge of such matters, as he had only assumed, and had not actually seen, the plaintiff eating or concealing prawns before paying for them. 207In my view, on the facts as I have found them, the store manager's accusations made against the plaintiff were not reasonably made in the circumstances, and therefore the defence of statutory qualified privilege does not arise: s 30(2), as explained in the paragraphs that follow. 208As to s 30(3)(c), the seriousness of the allegation that the plaintiff wrongfully dealt with the defendant's merchandise required that the plaintiff be approached in a reasonable manner, without immediate aggressive accusations being put to him at the outset, in order to obtain his explanation of the circumstances. As this was not done, and instead, accusations were immediately levelled at the plaintiff, statutory qualified privilege does not arise. 209Similar considerations apply equally with regard to s 30(3)(d) as the allegations were suspicions, not proven facts. The nature of the defendant's business environment was such that it was apparent that large numbers of customers would be likely to be present in such circumstances, and if the subject matter of these proceedings was not approached discreetly, the curiosity of customers would be aroused and the publication of defamatory matter to persons having no legitimate interest in receiving same was more likely to occur, including via the "grapevine effect": s 30(3)(f). 210This was compounded by the flimsy foundation of the information upon which the manager based his accusation to the plaintiff: s 30(3)(g). 211The circumstances were further exacerbated by the fact that the accusations levelled at the plaintiff commenced immediately without first obtaining an account from the plaintiff to obtain a balanced discussion which included the opposing point of view: s 30(3)(h). 212In these circumstances, in my view, the defence of statutory qualified privilege does not arise. 213I therefore reject each of the defences relied upon by the defendant. Before assessing damages for defamation, it is necessary to deal with the additional causes of action relied upon by the plaintiff.

Cause of action framed in assault 214The plaintiff claims that in the events complained of he was subjected to the tort of assault because of the aggressive manner that Mr Tatosian had adopted towards him, and because he was in fear of his safety as he felt surrounded by Coles employees. 215For the plaintiff to succeed on his claim of assault, it is not necessary for him to show that he was subjected to physical contact or a battery. However, it is necessary for the plaintiff to establish that Mr Tatosian's actions intentionally created in him an apprehension that there would be imminent harmful and unlawful contact. 216The circumstances in question undoubtedly involved Mr Tatosian demanding of the plaintiff that the prawns in question be produced so that payment would follow. However, I do not accept that it could have been reasonably assumed in those circumstances, that Mr Tatosian, or any other employee of Coles, would have taken the additional step of acting unlawfully and contrary to the rights of the plaintiff in addition to the defamation that I have found to have occurred. I do not accept that in the very public area of a supermarket, the plaintiff was in a state of apprehension that violence or an unlawful assault would be occasioned to him. 217Whilst I accept that the plaintiff was upset and in a state of emotional turmoil and embarrassment as a result of being confronted and wrongly accused in the events as I have found them, I do not accept that either he, or a reasonable person in his position would have been in fear of physical harm or aggression: Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1. 218Based on a misunderstanding of the situation, Mr Tatosian's intervention was limited to seeking to ensure payment for the merchandise, and not otherwise. I do not accept that the plaintiff was assaulted, as was submitted on his behalf.

Causes of action framed in intimidation 219The plaintiff has claimed damages for alleged intimidation. To succeed against the defendant on that count, he must show that the defendant, through its employee, Mr Tatosian, or others, intended that in the circumstances, he be intimidated by unlawful threats of harm unless the plaintiff complied with the requests that were being made of him: Rookes v Barnard (No 1) [1964] UKHL 1; (1964) AC 1129; 220On the contrary, I have found that the demands made to the plaintiff that he turn out his pockets, produce and pay for the prawns that Mr Tatosian believed the plaintiff had, were based on a misunderstanding on the part of Mr Tatosian to the effect that the plaintiff had wrongfully dealt with the prawns in question. This did not amount to unlawful conduct, apart from the defamation that I have found. Demanding the production of and payment for merchandise that was still owned by Coles at that time, was not unlawful, and did not amount to intimidation. I do not accept that the plaintiff was intimidated in any actionable sense.

Cause of action framed in harassment 221The plaintiff has claimed damages for alleged harassment. As with the claim for damages for alleged intimidation, for this count to succeed, the plaintiff must establish that Mr Tatosian, or other employees of Coles, intended to unlawfully harass him for the purpose of procuring payment for the prawns. 222As is the case with my reasons for not upholding the plaintiff's claim framed in alleged intimidation, I am not satisfied there was any intention on the part of Mr Tatosian, or any other member of the staff of Coles on the day in question, to unlawfully harass the plaintiff. 223Instead, I consider that although Mr Tatosian's pursuit of production of and payment for the prawns by the plaintiff was based upon a misunderstanding that the plaintiff had wrongly dealt with those prawns, I also accept that this did not amount to harassment, although I accept that to a degree, the plaintiff may have felt somewhat harassed at the time, which is a different matter. 224In my view, any such feelings on the plaintiff's part would in any event have been subsumed in the events in which the plaintiff has established his entitlement to claim damages for defamation, and which I have accepted, and for which damages should be assessed.

Cause of action framed in wrongful imprisonment 225The plaintiff claims he was subjected to wrongful imprisonment in the circumstances in question. He claims that in the events, he felt surrounded and prevented from moving, and thereby, he claims that his liberty was unlawfully restrained, in alleged contravention of the most elementary and important common of all law rights: Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, at [3]. Wrongful deprivation of liberty, even for a short time, is not to be regarded as a trivial wrong: Watson v Marshall & Anor [1971] HCA 33; (1971) 124 CLR 621, at [17]. 226To a superficial degree, the claim of wrongful imprisonment was apparently borne out by the evidence of Mr Tatosian, who said that he was prepared to allow the plaintiff to leave the premises after he had paid for the prawns in question: T141.10-T141.26. An inference could be drawn from that evidence to effect that until payment occurred, the plaintiff would be detained against his will. However, that is not the only inference that is open on the evidence. 227The way in which I interpret that evidence is in the sense that in Mr Tatosian's mistaken belief that the plaintiff had eaten prawns that he was not going to pay for, Mr Tatosian had engaged the plaintiff in a conversation aimed at obtaining an acknowledgement from him that he would pay for the prawns. Mr Tatosian described that process as "providing service". 228In my view, whilst the plaintiff felt affronted, upset and publicly embarrassed at the challenges to his honesty in those circumstances, and for which he will, by this judgment, receive damages for defamation, there was in reality nothing that hindered his ability to leave, other than his desire to defend his honour, and to remain in order to contest the assertions made by Mr Tatosian. 229Although the plaintiff was upset and somewhat debilitated by the circumstances that unfolded, as was influenced by his physical condition at the time, I do not accept that in the circumstances, his will to leave was effectively overborne, or that he was deprived of his liberty by Coles staff, so as to amount to a wrongful imprisonment. 230Whilst it is true that the plaintiff felt unwell, and he felt unable to keep standing during the events of the confrontation he had with Mr Tatosian, and he therefore accepted a chair and a glass of water procured for him by Mr Chapman, I do not consider that these antecedent events had the effect of intentionally depriving the plaintiff of his liberty at the time the events were unfolding, or in the aftermath of those events. 231To the extent that Mr Tatosian accepted that he was "prepared to let him leave after he paid for the prawns", I find that those words only referred to an intention to have the plaintiff account for the prawns, and they did not extend to any alleged action of unlawfully detaining the plaintiff so as to prevent him from leaving the premises. 232I do not accept that such an attitude on the part of Mr Tatosian, and the intention so expressed to the plaintiff, would have extended to unlawfully restraining the plaintiff from leaving the premises, had he sought to do so. Nor do I accept that the plaintiff's will, including his will to leave, was overborne by the exchanges that he had with Mr Tatosian, or for that matter, by the presence of other Coles staff members. 233To sustain a claim of wrongful imprisonment, the plaintiff must show that the restraint upon his volition was so great as to overbear his will to leave the scene. I am not satisfied on the evidence adduced that this occurred.

Assessment of damages 234The plaintiff claims general compensatory damages, aggravated damages and exemplary damages.

General compensatory damages 235Having accepted the plaintiff's evidence as to the effect of the events upon him, including his feeling of hurt, public humiliation, upset, debilitation and subsequent low mood, I consider that an appropriate award of general compensatory damages should be in the sum of $40,000. 236I consider that sum is appropriate having regard to the very public and humiliating way in which the plaintiff's honesty was called into question in front of other Coles staff and other customers in the store. In assessing this amount I have taken into account the "grapevine effect" of the publication having occurred in the plaintiff's neighbourhood supermarket where he could be recognised.

Aggravated compensatory damages 237I consider that the plaintiff is entitled to a measure of aggravated compensatory damages because of the prolonged and repeated nature of the embarrassing and humiliating accusations he was subjected to in the presence of other Coles staff and other customers for at least 10 minutes. However, I consider that such aggravated damages should be of modest proportions in view of the level at which I have assessed the plaintiff's entitlement to general compensatory damages. I therefore assess such aggravated compensatory damages in the sum of $10,000.

Claim for exemplary damages 238Although the plaintiff claims exemplary damages as a result of the events in question, I do not consider that an entitlement to such damages has been made out. The events in question escalated into a discussion that unfortunately became heated, unnecessarily so. I am not satisfied that this involved any form of malice on the part of any employee of the defendant. Accordingly, I do not make any award for exemplary damages.

Summary of damages assessment 239My assessment of the Plaintiff's damages is therefore summarised as follows: (a) General compensatory damages for defamation $40,000 (b) Aggravated general damages $10,000 (c) Claimed exemplary damages $Nil Total $50,000

Interest 240The plaintiff has claimed interest on his compensatory damages. There are no disentitling factors for awarding interest on his damages award. Interest on $50,000 at 2 per cent over 2.9 years from 4 September 2009 until the date of judgment is therefore assessed in the sum of $2900.

Disposition 241The plaintiff has succeeded in respect of the principal cause of action he has pursued against the defendant in these proceedings, namely defamation. As a result he has established his entitlement to a judgment amount of $52,900, including pre-judgment interest.

Costs 242As the plaintiff has succeeded in establishing an entitlement to a judgment in his favour, I consider that he has therefore also established his entitlement to an order for costs in his favour. Unless an entitlement to some other order is established, for which liberty to apply is granted, those costs should be paid on the ordinary basis.

Orders 243I make the following orders: (1) Verdict and judgment for the plaintiff in the sum of $52,900 including interest up to the time of judgment; (2) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (3) The exhibits may be returned; (4) Liberty to apply on 7 days notice if further orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2012