Goritsas v Bruton

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 37; CSR Ltd v Maddalena (2006) 224 ALR 1; (2006) 80 ALJR 458; [2006] HCA 1 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Goldie v Commonwealth [2004] FCA 156 Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422; [2004] FCA 156 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Jones v Sutton (No 2) [2005] NSWCA 203 MacCulloch v TNT Ltd [2000] NSWSC 1183 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218; [2001] NSWCA 305 CASES CITED: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 Myer Store Ltd v Soo [1991] 2 VR 597 Natta v Canham (1991) 104 ALR 143 Ruddock v Taylor (2003) 58 NSWLR 269 Spautz v Dempsey (Supreme Court of NSW, Young J, 27 April 1993, unreported) State of New South Wales v Hathaway [2010] NSWCA 184 State of South Australia v Lampard-Trevorrow [2010] SASC 56 Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 Zaravinos v State of New South Wales (2004) 62 NSWLR 58

Plaintiff: Maria Goritsas PARTIES: First Defendant: Russell Bruton Second Defendant: The Trustee for the Pralston Family Trust t/as Storchek Security (ABN 45 871 371 378) DCL

COUNSEL: Plaintiff: Mr J Sheller Defendants: Mr G Grant

SOLICITORS: Plaintiff: Greg Walsh & Co Defendants: Lee & Lyons

[1] The plaintiff brings proceedings for assault, battery and trespass to person against the first defendant (a store detective) and the second defendant (the first defendant's employer) arising from events which took place at the Roselands Shopping Centre at the Best & Less store and in the shopping centre car park on 1 April 2008.

[2] The plaintiff's claim for battery, unlawful arrest and false imprisonment includes a claim for general damages, aggravated and exemplary damages, medical expenses, loss of past and future earnings, and a claim for domestic assistance.

[3] The considerable delays in the hearing of this matter, which include the matter being stood over part heard, relate to the discovery, shortly before the hearing, that the plaintiff had been involved in up to seven prior claims for damages for slip and fall accidents, motor vehicle accidents and work-related injuries, including a prior claim for a hand injury. These claims went back to 1989. Obtaining the Court files and medical records relating to these proceedings was a lengthy process. The delays concerning the obtaining of these documents did not result from any negligence or oversight from the parties' lawyers.

[4] The second reason for delay is that after addresses were completed and the matter listed for argument, the plaintiff brought an application to amend the Statement of Claim to replead the circumstances of the alleged false imprisonment as an alternative to the claim originally pleaded. That application, which was a significant amendment, was opposed by the defendants.

[5] As the plaintiff sought to amend her claim during submissions, it is important to note the claim as originally pleaded, which was as follows: "It is alleged that the first defendant grabbed hold of the plaintiff's right arm and pulled her out of her motor vehicle and in doing so, occasioned injury to her right arm and right wrist."

[6] It was alleged that the first defendant assaulted the plaintiff in the following manner: (a) Taking hold of the plaintiff's right arm and applying force to it.

(b) Taking hold of the plaintiff's right wrist and applying force to it.

(c) Grabbing hold of the plaintiff's right arm and wrist and pulling her from the motor vehicle.

[7] The particulars of wrongful arrest and false imprisonment, as set out in paragraph 12 of the statement of claim, were as follows: (a) On 1 April 2008 the first defendant took hold of the plaintiff's arm and wrist and pulled her out of her motor vehicle; whereupon he searched her shopping bags with a view to ascertaining whether the plaintiff had a dress in her shopping bags.

(b) Notwithstanding that no dress was located in the said shopping bags, the first defendant informed the plaintiff that "You have to come with me".

(c) The plaintiff informed the first defendant that she would not come with him and for him to leave her alone and stop.

(d) The first defendant grabbed hold of the plaintiff's right arm and wrist and pulled her out of the motor vehicle and demanded that she come with him to a Best & Less store situated within the said shopping centre.

(e) The plaintiff was physically removed from her car by the first defendant and then repeatedly pushed in the back while she was physically escorted by the first defendant back to the Best & Less store from whence she had come.

(f) At the Best & Less store the check-out attendant confirmed to the first defendant and the plaintiff that she had searched her bags in accordance with standard procedure and that there was nothing in them.

[8] The plaintiff's injuries and ongoing disabilities are: Particulars of Injuries received

[9] The plaintiff has identified the issues concerning liability and damages as follows: Liability

(a) Was the plaintiff touched by the first defendant?

(b) Did the first defendant require the plaintiff to return to the Best & Less Store?

(c) During the period during which the plaintiff was in the company of the first defendant, was she free to leave?

(c) Entitlement to damages for loss of earning capacity.

[10] The issues identified by the plaintiff in relation to liability do not, in my view, sufficiently identify the issues for determination in these proceedings. I identify the additional issues as follows: (a) In addition to the issues on liability identified by the plaintiff, the resolution of disputed issues of fact concerning the circumstances in which the plaintiff and the first defendant returned to the Best & Less store, and whether any assault occurred in the course of these events.

(b) Whether at any time, including after return to the store, the defendants directly and intentionally or negligently caused the confinement of the plaintiff.

(i) the plaintiff's asserted inconsistent account of events;

(iii) prior history of claims by the plaintiff and her daughter of the plaintiff's inability to work;

(iv) whether the plaintiff suffered any injury as a result of this alleged incident or at all, given her conduct as observed on surveillance film.

(d) The circumstances in which a party should be permitted to amend pleadings after the evidence is completed.

[11] An application to amend was made twelve days prior to the hearing date, namely the addition of a claim that the plaintiff suffered "pain to right hand including the thumb". The first claim that the plaintiff suffering from an injury to her thumb was made when Dr Heath provided a medico-legal report on 2 July 2009 stating that the security officer of the shopping centre "pulled on her thumb and wrist" and noted some injuries to her thumb. All previous medical reports had only referred to a wrist injury.

[12] After the hearing and submissions of the parties were completed the plaintiff made an application to amend the statement of claim as follows: "13A In the alternatively the plaintiff says that at all material times while outside the Best & Less Store, she was falsely imprisoned.

(a) The first defendant, acting on behalf of the second defendant, required her to remain at the front of the store while undertaking enquiries as to the location of some sun dresses.

[13] The plaintiff, who was born on 15 September 1947 and is a cleaner in barristers' chambers, was shopping at Best & Less some time after 2.00 pm on 1 April 2008. She was carrying three bags, one of which was a handbag. While at Best & Less, she was looking for sun dresses for one of her granddaughters after having been shopping for a present for a barrister on the floor where she worked as a cleaner. She had looked at two dresses for her granddaughter, but did not find one she liked and left the store without making a purchase.

[14] While she was shopping in the store, she came under the observation of the store detective, Mr Bruton (the first defendant). He became suspicious because whereas most persons who decide to buy items head straight towards the check-out counter, the plaintiff was zig-zagging around the store whilst carrying dresses, and when she next came into his vision at the check-out she no longer had the dresses. The dresses were not placed on the rack near the exit. On enquiry, the girl at the cash register told Mr Bruton that she had checked one of the plaintiff's bags but not the others. Mr Bruton left the store calling out after the plaintiff "Excuse me ma'am", but did not catch up with her until she arrived at her motor vehicle.

[15] What occurred when the plaintiff was at her motor vehicle was the subject of contested evidence. The plaintiff's evidence may be summarised as follows: (a) She denied that the first defendant identified himself before asking her to come back to the store (T-21).

(b) She said that the first defendant then grabbed her by the wrist and thumb to pull her out of the car (T-21), confirming that he grabbed her right hand with his right hand (T-22) and then pulled her out of the car.

(c) She said she was pushed once in her back on the way to the store, after the first defendant told her she must return to the store.

[16] In cross-examination, when it was put to the plaintiff that the pleadings and particulars had referred to her being repeatedly pushed in the back, she said that she had been pushed in the back three times (T-5, 11 May 2010).

[17] In the course of her evidence, while maintaining her claim that she had been assaulted and dragged from her car, she made no claim that she was detained in the shop after she returned. "Q. And I take it by the time you were going back to the store there had been a release of your hand? A. And the hand.

Q. Now you mentioned how you were feeling at this time, could I just ask you how were you - after the gripping of your right hand by the person, how did you feel? A. I feel very bad.

Q. Well when you say very bad what specifically were you feeling? A. Feeling of course my hand is very sore and I feel awful you know for my health you know because I no feel well.

Q. As you were going back to the store did you think you could just leave? A. No.

Q. Did you think you could say to the person thanks but no thanks I'm going now? A. No because I feel scared that I'm to go back to the store.

Q. Now I think you might have described this before but the distance was about 50 or 60 metres. Now was that back to the entrance to the shopping centre or back to Best & Less? A. No I'm go back to the Best & Less.

Q. What happened when you got back to Best & Less? A. The time when I go to the Best Less he asked me where's the dress.

Q. Now this is the same person who you've been dealing with in the car park? A. Yeah. And he said to me where's the dress? I said to him that's the dress in there.

Q. You are pointing. Where were you pointing to within - sorry I should just ask you another question before that. This discussion, was it back within the Best & Less store? A. Yes.

Q. Now you've just gesticulated by pointing, where were you pointing in the store? A. In the front where's the cash register.

Q. To where were you pointing? A. In the pointing where's the dress on the ..(not transcribable)..

Q. Again doing your best, how far from the cash register to the area where the dresses were? A. Four metres, four, five metres. Won't be longer that.

Q. After you'd pointed at the dresses what happened next? A. And he say nothing to me, just this man he putting down the hat on the reception you know where the cash register. He's putting down the hat, not say nothing to me, even one sorry to me.

Q. I should ask you, was there a dress in your bags in your handbag or-- A. Yes.

Q. Was the dress actually in your bags? A. No.

Q. What happened after that? A. And I ask him to give me his name.

Q. And did the gentlemen give you his name? A. Didn't give me straightaway. He no want me to give me.

Q. Did he eventually give you his name? A. Yes.

Q. You can't remember it? A. Can't remember because I'm shocking.

Q. Now Mrs Goritsas after the gentleman had given you his name what did you do next? A. And I walk out from the store and I go behind you know where the corner and he have a one drink, you know the machines they sell it you know the drinks, and I stayed there and I ring to my daughter.

Q. Just stopping you there. At this time from the time you are leaving the Best & Less store for the second time, going towards the drinks machine how were you feeling? A. I feel very bad." (T 23-24)

[18] She agreed that the first defendant had called out to her three times prior to coming up to her at the car, and she agreed that she had voluntarily returned with him to the store.

[19] In addition, in cross-examination, the plaintiff said that the first defendant had asked to inspect, and inspected, her shopping bags prior to her being pulled from the car. This is contradictory to her evidence in chief (T-21-22). I agree with the submission of the defendants that for Mrs Goritsas to have shown him her bags that were on the back seat without her getting out of the driver's seat voluntarily, or otherwise, is an unlikely scenario. The likelihood is that she was either standing outside her car when Mr Bruton spoke to her, or got out of her car to show him bags that were on the back seat. Nor did the plaintiff refuse to go with the first defendant and demand to be left alone, as alleged; she agreed she went with him voluntarily to the store.

[20] The plaintiff's description in evidence in chief of what happened in the Best & Less store was that as soon as Mr Bruton took her to the front entrance of Best & Less, she pointed to the dresses five metres away: "Q. Now this is the same person who you've been dealing with in the car park? A. Yeah. And he said to me where's the dress? I said to him that's the dress in there.

Q. You are pointing. Where were you pointing to within - sorry I should just ask you another question before that. This discussion, was it back within the Best & Less store? A. Yes.

Q. Now you've just gesticulated by pointing, where were you pointing in the store? A. In the front where's the cash register.

Q. To where were you pointing? A. In the pointing where's the dress on the ..(not transcribable)..

Q. Again doing your best, how far from the cash register to the area where the dresses were? A. Four metres, four, five metres. Won't be longer that.

Q. After you'd pointed at the dresses what happened next? A. And he say nothing to me, just this man he putting down the hat on the reception you know where the cash register. He's putting down the hat, not say nothing to me, even one sorry to me." (T 22 - 23, 18 November 2009)

[21] The plaintiff said she asked for the store detective's name, and after some reluctance he gave it to her. She then left the store and telephoned her daughter to pick her up. On the account given in chief, the plaintiff would have been in the store only long enough to point out the dresses on the rack.

[22] Because of the delays caused by the need to obtain a number of files concerning the plaintiff's prior accidents, she was not cross-examined until May 2010. I have given a considerable degree of latitude to any variation or discrepancy between the plaintiff's answers in examination in chief and cross-examination because of this delay.

[23] In cross-examination, the plaintiff said: "Q. And when you got to the store, he said to you, "Can you please show me where you hung the sundresses?"? A. Yes.

Q. Did you, where did you show him? A. I showed him in the front, where's the store, in Best & Less, it's not far from there on - behind where they're standing.

Q. Near the cash register and I want to put to you that the sundresses were not there on the rack near the cash register? A. Is there.

Q. And that they had been removed to the back area where they were initially taken from?

Q. They weren't there out the front? A. Yeah.

Q. What do you say about that? A. I've been in the front, yes.

Q. He then said to you or words to the affect of, "Thank you for your cooperation"? A. Not say nothing to me.

Q. You then demanded to have his name and home telephone number? A. Yes, I ask him.

Q. And he said, "I'll give you my name and only my work phone number"? A. No, he not give me straight away, not give me answer, actually put down the hat on where's the cash register, he putting down the hat like this and I ask him three times to give me the name and the telephone number. He say, "Why you ask me this, to give you the telephone number and my name?", I said, "Because I need it, you know, because you do this to me, you know, because everybody look to me around the, you know, because there's a lot of people in the shopping centre"." (T 55, 11 May 2010).

[24] The plaintiff did not state in her evidence that she was under any restraint while she was in the store (T 23 - 24), or that she was detained after she had pointed out the dresses. The claim for detention, as pleaded and particularised and as stated by her in her evidence, consisted of her being dragged out of her car, pushed in the back one or more times and then taken to the front of the store where, after she identified the dresses without going past the checkout area, her only reason for remaining was to demand the first defendant tell her his name.

[25] As indicated at the commencement of this judgment, the plaintiff was the subject of a sustained attack as to credit. This related firstly to her long prior history of other claims for personal injury. Some of this material is of peripheral relevance, in that while some of the claims raise issues of credit, others relate to genuine injuries in circumstances where the facts of the injury are not disputed. Most of these claims, however, included a claim of needing to rely on her daughter Angela for home help and also assistance in performing her cleaning work, and I shall briefly note the evidence of this witness.

[26] The plaintiff called her daughter, Angela Goritsas, who said that she received a telephone call from the plaintiff asking her to come to the Best & Less shopping centre carpark to collect her. She said that when she arrived, her mother gave a description of having been dragged from the car and demonstrated the grip to her, which she repeated in the witness box. She clearly demonstrated that her mother showed her she was gripped around the area at the base of her thumb through to the hand over the wrist.

[27] Ms Angela Goritsas said that her mother now mostly uses her left hand, and that prior to this incident, although her mother was responsible for the shopping, they now have to do this together with the plaintiff's other daughter. In cross-examination, Ms Angles Goritsas agreed that the plaintiff drove her motor vehicle by herself with her children. She denied, however, that her mother was able to perform other household tasks or able to carry out her cleaning duties on the same way as before the accident. The defendants submit that in light of the number of times Angela Goritsas has supported the plaintiff in similar claims, her evidence must be of little credibility (see Exhibit E). I have dealt with this in more detail in the section of this judgment concerning the plaintiff's credit.

[28] Mr Bruton gave evidence concerning his observation of the plaintiff on the day in question. More importantly, he made a contemporaneous note, after consultation with his employer, Mr Jackson, after the plaintiff indicated that she was going to commence proceedings. That document is Exhibit 4 in these proceedings. The relevant extract reads as follows: "After enq with front counter cashier, I chased lady down & found her in the car park where upon I intro myself to her as the loss prevention off. for B & Less. I asked her about the 2 sun dresses & she said she had hung them up on a rack. I asked if she could show me & she said yes & did so. At no point did I say she was under arrest, and she came in voluntarily. At some point she asked me for my name and home phone no. I gave her my name but the store work no. She then became a bit agitated because I wouldn't give her my home no. I don't do that for just anyone. She then said b4 she left she was going to get her solicitor & barrister involved. I then contacted Rob Jackson at approx. 4.30pm."

[29] The portions of the cross-examination relied upon by the plaintiff to establish that the plaintiff was not free to go are the following (T 18-20, 12 May 2010): "Q. Well your note is "Stopped outside shop and escorted back to office." I take it you wouldn't have written that in unless that's what occurred? A. Yeah I - I - I'd have to look at my notes. I really honestly cannot remember. As far as I can remember the two girls left the store because they were saying, "Your [sic] only trying to stop me because I'm black."

Q. Yes well that's-- A. Or words to that effect.

Q. Yes well what you say is "Continued covert surveillance after letting them go. Found hanger later. Goods not put back on. The way out she" - I'm not sure that might be one of the two girls "kept yelling making a scene" and then she said words about her being black. Does that help you remember? A. I remember her swearing a few times.

Q. Do you remember letting them go? A. Yeah I had to.

Q. Before you let them go they'd been detained correct? A. Not that I can remember. I stopped them just outside the store, yes.

Q. But until you let them go they were detained correct? A. Detained at the front of the store.

Q. Yes? A. Well I tried to confirm that they'd actually taken some - taken goods.

Q. Before you let them go they had been detained by you correct? A. Yes.

Q. They weren't free to go? A. At that stage, no.

Q. And they remained not free to go until you let them go correct? A. That's correct.

Q. And they remained not free to go while you made enquiries within the store as to where these goods were is that correct? A. That's correct.

Q. You didn't ask them to accompany you into the store voluntarily did you? A. No. I asked them to come into the store but they refused.

Q. Yes and then you insisted that they come back with you? A. I did.

Q. So that being the case when you asked them to come back to the store with you, in a sense they weren't free to say "No I'm not coming back," were they? A. No.

Q. If they did say "I'm not coming back," which they did, then you detain them correct? A. I would have, yes.

Q. Could I just ask you then about the daily log that we've seen for Storchek which is - contains different information than what's in your notebook, do you know where the daily log ended up? A. In regards to what?

Q. IN relation for example the Roselands store? A. We don't put everything that happens into the log.

Q. I understand that I just wanted to ask you where does the log - the document end up? A. The documents itself?

Q. Yes? A. They remain in the manager's office usually or if the office is separate then it goes into a different room.

Q. When you say the manager's office do you mean the manager of Best & Less-- A. Yes.

Q. --or Storchek, so it's a log available for Best & Less to review? A. Usually the cabinet is locked, some of the times the cabinets are locked, other times the cabinet's open and they're usually in a bottom drawer.

Q. I see was it your understanding that the log was to be available for management of Best & Less to look at if they wanted to? A. If they wanted to.

Q. So if Best & Less wanted to get an understanding of what might have happened on a particular day? A. Yes.

Q. They had the log is that right? A. They could go into that.

Q. But they didn't have any other documents did they? A. Not as far as I'm aware of.

Q. See can I suggest to you Mr Bruton that the process that you engaged in with the two Aboriginal girls, that is detaining them while you investigate whether they did something and then letting them go is the same process you engaged in with Mrs Goritsas? A. Could see it that way.

Q. So you're agreeing with me are you? A. Yes.

Q. Mrs Goritsas like the two Aboriginal girls had the opportunity of agreeing to come with you or being escorted by you if they didn't agree is that correct? A. Yes.

Q. And while further investigations were going on Mrs Goritsas like the two Aboriginal girls was detained? A. At the front of the store, yes.

Q. And until such time as the investigations were complete Mrs Goritsas like the two Aboriginal girls remained detained? A. Yes well I didn't detain Mrs Goritsas.

Q. Well you understand that by detained she wasn't free to go, do you understand? A. Yes.

Q. And like the two Aboriginal girls they weren't free to go? A. That's right."

[30] The first defendant was cross-examined further about his contemporaneous record of events (T 25-26, 12 May 2010) as follows: "Q. What doesn't appear in this document you'd agree is what you told us earlier this morning to the effect that Mrs Goritsas was detained. You agree with that? A. That is correct.

Q. Why didn't you put that in this document? A. Because I wasn't detaining her. I didn't put my hand on her shoulder to say she was under arrest or anything.

Q. I see, that's what you understand to be detention? A. Yes.

Q. But from your evidence earlier you agree that Mrs Goritsas, while at the front of the store, was detained in the sense that she wasn't free to go, that's correct isn't it? A. Only to the extent that I wanted to confirm where the dresses had gone.

Q. Yes but while that was going on-- A. Yeah.

Q. --she wasn't free to go, correct? A. She could have very well.

Q. Sorry Mr Bruton what do you mean 'she could have very well'? A. She could have just said 'I'm not answering any questions' and then left the store.

Q. But you gave evidence earlier that while she was at the front of the store she was detained? A. I hadn't--

Q. That's correct? A. I hadn't detained her in the sense that I did not say to her 'you are under arrest'.

Q. But I'm just trying to see if you recognise the difference. On the one hand you say she wasn't arrested? A. Yes.

Q. But on the other hand while at the store, back at the store, while you're investigating-- A. Yes.

Q. --she was detained? A. For the purpose of getting the clarification of where the sun dresses were, that is all.

Q. But again that is something that's not in your note but that's what occurred, that detention while you're investigating the sun dresses? A. Yes."

[31] Finally, the following questions were asked at T-35 (12 May 2010): "Q. Mr Bruton, in the circumstances in which Mrs Goritsas was involved, that is your suspicions which we've identified by reference to those four factors. Given those circumstances, what was your power of detention in relation to Mrs Goritsas as at 1 April 2008? A. Is to ask the person involved to come back to the store and explain where certain goods would have been put.

Q. Is it your understanding in addition to that, that you had power to, once they were at the store, keep them there while you were undertaking your investigation? A. And take away their freedom, yes.

[32] I shall first examine the evidence prior to the plaintiff re-entering the store. The plaintiff's evidence, Mr Bruton's evidence and his contemporaneous note all point to the plaintiff voluntarily accompanying the first defendant back to the department store because, as she put it "she was an honest person".

[33] How was Mr Bruton able to persuade the plaintiff to accompany him back to the store? Although the demeanour and presentation of a witness are not matters upon which judges should place a great deal of weight, I should note some important facts about the first defendant's appearance and demeanour which I consider explain how this occurred.

[34] Mr Bruton is a man of average height and, although I am uncertain as to his precise age, he is well into middle age. He had an affable and courteous manner, and the way in which he answered questions in cross-examination, with courtesy and frankness, gave me a very clear picture of how he goes about his job as a security officer, namely to use a friendly manner and the language of persuasion rather than force. In the course of his cross-examination, he indicated that his way of dealing with persons whom he suspects of stealing is to enlist their assistance, which would explain his use of techniques such as telling the plaintiff "unfortunately, not everyone is as honest as you", and his use of a friendly manner in order to achieve the aim of persuading her to return to the store voluntarily.

[35] Mr Bruton said in his evidence in cross-examination that he could do nothing to force the plaintiff to return to the store if she refused to do so: "Q. What would have happened if she'd said 'I'm leaving go away'? A. Then I would have taken details of the car and the registration, details of her appearance, et cetera and pass that on to the police.

Q. Can I suggest that if she'd said 'I'm not coming with you', you would have made her come with you? A. No." (T 92, 11 May 2010)

[36] Mr Bruton gave a consistent response when he was asked similar questions on 12 May 2010 (T 6-7, 12 May 2010): "Q. The next provision in the guidelines is to escort offender to office, keeping them under close observation? A. Yes.

Q. You escorted Mrs Goritsas? A. Yes, she walked beside me.

Q. She was under close observation? A. She was beside me, yes.

Q. What would've happened if she'd started walking away from the store? A. I would've had to take some details down of Mrs Goritsas and of the vehicle if she was going to go back into the car and remove herself.

Q. You would've stopped her if she'd tried to leave, wouldn't you? A. I would've asked her to stop.

HER HONOUR: You mean physically, I think you should say so.

HER HONOUR: Well I think you should say so, I mean you know, you say "try", what do you mean that he would do.

Q. You would've stopped her physically from leaving, wouldn't you? A. I would've asked her to stop, if I had confirmed that there definitely had been goods taken, then I would've put my hand on her shoulder to say "that you are now under arrest", which I never did."

[37] The first issue to determine is whether to accept the evidence of Mrs Goritsas or Mr Bruton as to these disputed facts, which brings me to a consideration of the attack on the plaintiff's credit. This is relevant as to whether or not I accept the evidence of Mrs Goritsas that she was dragged or pulled from her car in the way she described, and suffered the injuries she complains of.

The plaintiff's credit: prior complaints of similar injuries

[38] Although the plaintiff's chronology and medical reports made no reference to the plaintiff's prior medical history, hand injury, blood pressure problems, difficulties in performing her employment, depression or anxiety following accidents or injuries to her hand, and provided no medical reports concerning these prior injuries, the plaintiff in fact has a 20 year history of prior health problems, including work injuries, slip and fall injuries and motor vehicle accidents. These are as follows: (a) 1989 - motor vehicle accident - there is little information concerning this, except that she recovered damages of between $20,000 and $40,000.

(b) On 27 March 1994 the plaintiff suffered a slip and fall accident on the dance floor. Her damages included a claim for economic loss. She received $27,500 general damages and $10,000 for economic loss.

(c) 1995 - proceedings for work injury relating to hearing loss, being District Court proceedings No 3035 of 1995 (these proceedings were discontinued).

(d) 7 March 1998 - the plaintiff suffered a substantial hand crushing injury at her daughter Angela's place of work. The case was settled for $32,000 plus costs. However, this sum does not necessarily reflect the full quantum of damages. The plaintiff was obliged to settle her claim on legal advice following discovery by her lawyers that in view of the material inconsistencies in her description of the circumstances of the accident, they wished to cease acting for her and they recommended acceptance of an offer made by the defendant.

(e) 27 February 2000, the plaintiff suffered a slip and fall at a coffee shop. A claim for economic loss of $800 per week was made. This case resulted in a verdict for the defendant.

(f) 13 May 2002 - a workers compensation claim for a work injury whilst the plaintiff had been working as a cleaner - this was struck out on 29 March 2004.

(g) 17 September 2004 - motor vehicle accident - the plaintiff was awarded $75,000 inclusive of costs.

[39] In making findings of disputed issues of fact, the credit of a witness is a relevant issue. Credit issues in relation to witnesses generally fall into three categories. The first is where there is inconsistency between the evidence of the witness and an objective contemporaneous document: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510. The second is where there are two differing versions given by witnesses, where it is assertion that the evidence of a party is inherently implausible or highly improbably, as was the case in State of New South Wales v Hathaway [2010] NSWCA 184 at [67]. The third, and least reliable, relates to observations such a demeanour in the witness box.

[40] The evidence in the present case falls within the first and second of these general categories of attacks upon witness credit. I shall briefly list the bases upon which the plaintiff's credit is attacked: (a) Failure to disclose a long, prior history of personal injuries including a prior history of injury to her right hand, which injury it is asserted account for any ongoing problems with her right hand. The plaintiff, in providing information to medical practitioners, denied the existence of prior injury and also denied her long prior history of high blood pressure.

(b) The circumstances of the plaintiff's change of evidence in the 1998 personal injury proceedings for injury to her right hand.

(c) The pattern of prior claims in personal injury actions that as a result of her injury she was either unable to work or was capable of light duties only and required the assistance of her daughter, Angela. This is of relevance when considering not only her own claim in these proceedings but her credit generally.

(d) Although the plaintiff claimed in her evidence she was unable to use her right hand to turn the pages of Exhibit 3, and wore her hand support at all times in the witness box, contemporaneous surveillance showed she did not wear her hand support and had no difficulty performing a range of tasks with her right hand.

(e) Inconsistencies by the plaintiff in her own evidence and with the case as pleaded and particularised, which it was submitted were pleaded and particularised upon her instructions.

(f) Inconsistencies between the plaintiff's account and the first defendant's contemporaneous diary note for the day in question (Exhibit 4).

[41] Where a party to personal injury or other tortious claims makes inconsistent, exaggerated or untrue statements about injuries, what approach should the court take when assessing the evidence of that witness on disputed issues of fact? This is a not uncommon problem in personal injury proceedings.

[42] What is important, in such circumstances, is also to have regard to the medical and other evidence that is not dependent upon the plaintiff's credibility: Natta v Canham (1991) 104 ALR 143 at 162.

The relationship of the plaintiff's credit to the facts of this case

[43] The disputed issues of fact upon which the plaintiff's credit would be relevant would be whether or not the first defendant pulled the plaintiff out of her car or touched her at all, whether she voluntarily accompanied him back to the store or was pushed in the back, and whether or not she was detained while she was at the store.

[44] It is an essential part of all the allegations against the defendants that the plaintiff was physically grabbed in the course of being accompanied back to the store, and that this is why she suffered the hand injury of which she complains.

Was there any assault or battery, and did the plaintiff suffer a physical injury?

[45] Counsel for the plaintiff, in written submissions, puts that there are two alternatives. One is that the grabbing took place. The other is that the plaintiff has manufactured the allegation, which included making up a story to her daughter later that day, to her general practitioner two days later, and continuing that story, including obtaining a referral, undergoing Cortisone injections and undergoing surgery on her right thumb. Part of this fabrication would require the willingness on her part to incur expenses in terms of going to see doctors and specialists.

[46] However, if the plaintiff had a pre-existing hand and thumb injury of which she was aware and for which she required ongoing treatment, that might be an explanation for such conduct.

[47] Accordingly, in order to consider whether or not the plaintiff was grabbed by the hand, I shall have careful regard to the circumstances in which she made a prior claim for injury to her hand, particularly the circumstances in which she changed her instructions to her solicitors in those proceedings, and the information she provided to her own doctors, as well as the defendants' doctors when attending for the purposes of preparation of a medico-legal report.

[48] The plaintiff presented to Royal Prince Alfred Hospital with what was described as a painful right hand due to a crush injury. The notes recorded "Swollen dorsal aspect, generalised tenderness" and the diagram at page 97 of Exhibit 3 shows the affected area as extending into the base of her right thumb. Attendances by the plaintiff at her general practitioner on 28 and 30 March note the plaintiff complaining of very painful swelling to her right hand and wrist pain. The occupational therapy notes (page 101A of Exhibit 3) refer to sensitivity and pain from the wrist up the base of the right thumb. The notes of her doctor continue to refer to pain and numbness for the remainder of 1998, including severe pain in her right hand extending up into the right wrist and also noting, on 9 December 1998, that she was "severely depressed about pain syndrome in right distal forearm and hand". She was referred to the pain management clinic at Royal Prince Alfred Hospital.

[49] The circumstances of this accident were as follows. According to Dr Cummins' report (page 105) and a letter from her solicitors to the GIO (page 119), machinery rolled over, causing a crush and scratching to the plaintiff's hand. The plaintiff was in her daughter's shop and was asked to assist. Her daughter did not provide her with any instructions on how to use the machine or warn about the dangers of putting her hand in the machine before the rotor blades had completely stopped turning. Accordingly, according to the version of events given to the opposing party in those proceedings, the plaintiff put her hand into the machine before the rotor blades had stopped turning and this was why she suffered the injury for which she commenced proceedings.

[50] A report from Dr Gopinath told a different story. She said she was working with a bread making machine and stopped the machinery to take out the dough when the machinery rolled over, causing a crush and scratches to her right hand which was trapped underneath. This resulted in the solicitors for the plaintiff writing to the doctor on 20 July 1998 asking him to amend his report. He sent an amended report, providing a version of the plaintiff's injury consistent with the account given to the defendant (Exhibit 3, page 125). This version was supported by the plaintiff's daughter, Angela, in her statement (pages 158-159). In addition to describing how the accident occurred, Angela Goritsas said that the plaintiff had stopped working since the accident and her father had to run the business. She went on to say that her mother had not been trained in the operation of the mixer. What she does not say is that prior to the accident the plaintiff was working at the bakery on a regular basis.

[51] The difficulty for the solicitors for the plaintiff in these proceedings was that a WorkCover inspector who attended on 20 November 1998 interviewed the plaintiff, who said (question 10, page 154B) that she visited her daughter Angela at the bakery every second day from the time they opened the shop. At question 12, she said that Angela had told her how to operate the dough machine safely, and was with her at the time and lifted the lid of the machine to show how the machine stopped automatically and said to her "Mum, please be careful with the machined". She also agreed with the WorkCover inspector that Angela had told her how to use the stop button and explained everything about how the machine worked to her. She was using this machine on a regular basis.

[52] On 22 October 2001 Sydun & Co provided particulars of economic loss to the solicitors for the defendant (page 167T), stating that since the injury to her right hand, Mrs Goritsas had been unable to perform her cleaning duties and her sole source of income was from the rental properties. A total wage loss of $64,000.57 from 1998 to 2001 was claimed, together with future economic loss of $600 per week for the next 11 years (page 167U, Exhibit 2).

[53] In his report of 7 November 2001, Dr Honner advised the defendant in those proceedings that the plaintiff denied any previous injuries, including any injuries in car accidents and any previous problems in her normal daily activities for her cleaning business. I note that this was not correct, and neither was the claim that she was not continuing to receive an income from her cleaning job (Exhibit A, Tab 4).

[54] The plaintiff's proceedings in the District Court against her daughter, Angela Goritsas (No 2379 of 2001), allege that her daughter Angela, failed properly to warn her to ensure the mixing bag had stopped spinning before removing the dough and that she asked an untrained person to operate industrial machinery and otherwise failed to supervise the plaintiff. The difficulty was, as Sydun & Co explained in the letter to the plaintiff of 20 December 2001 (which I note was sent by courier - 185D), was that the plaintiff had told a WorkCover inspector that she attended the bakery every second day, which suggested regular use, and that her daughter had explained how to use the machine. Sydun & Co went on to say: "This statement makes it very difficulty to establish that Angela was negligent and raises the issue that you may be a "deemed worker" under the workers compensation legislation. The effect of these difficulties is that you will most likely lose the case if you proceed."

[55] The plaintiff's solicitors went on to explain that they were unaware of this information until they obtained access to subpoenaed documents. She concluded: "I have indicated the difficulties caused by this statement which is extremely prejudicial to your position and contradicts your prior instructions to this firm."

[56] The solicitor went on to note that the barrister had indicated he was no longer prepared to conduct the matter on a speculative basis and that the solicitors took the same view. On that basis, and on the basis of medical reports indicating a severe injury, the plaintiff accepted a settlement offer by the defendant.

[57] I should briefly note the content of some of these reports. A report from a clinical psychologist of 22 January 1998 paints a very serious picture of a deeply depressed woman suffering from "some suicidal ideation" although she denied having any current intention to commit suicide. Her sleep was disturbed, her libido diminished, she complained of constant pain with a numb sensation at her fingertips and reported feeling traumatised and socially withdrawn. According to her neurologist, Dr Vignaendra, in his report of 28 February 2000, the plaintiff complained of pain in particular over the base of the thumb and right index finger. This is supported by a number of other medical reports. Objective tests such as an ENG were negative (see the report of Dr Evans of 12 March 2001). Despite the very gloomy picture painted by these medical reports, according to surveillance film of 25 July 1998, a matter of months after the accident, the plaintiff was seen carrying a large bag of bread, being able to use her right hand to open the door, and then driving away.

[58] This brings me to the plaintiff's evidence concerning injury to her thumb and wrist in these proceedings.

Cross-examination of the plaintiff concerning ongoing problems about her thumb and wrist

[59] After the lengthy adjournment necessary for the defendants to obtain all medical reports, the plaintiff continued to give evidence on 10 May 2010, when she said that her right thumb and wrist were still causing her the same concerns (T-2). She claimed to wear the support all the time except when she washed her hands. When shown the report of her attendance at hospital in March 1998, she agreed she had told the Emergency Department at Royal Prince Alfred Hospital that she had crushed her right hand at work (T-10) but when shown the hospital sketch indicating swelling at the base of the thumb, she denied that she had any problems with her thumb as a result of that incident (T-10). She denied telling the hand therapist that she suffered "worse sensitivity and pain" up to the base of the thumb (T-10) (although she agreed telling Dr Hargraves she was severely depressed and suffering from post traumatic neurosis as a result of this injury).

[60] She said she could not remember if she told her solicitors that the injury had caused her significant loss of function in her right hand. She denied giving inconsistent accounts of the accident and in particular telling Dr Gopinath that the machine had rolled over onto her (T-11). During her cross-examination, she was observed to use her left hand to turn pages of an exhibit because she said she could not use her right hand (T-11). She denied most of the statements attributed to her by Dr Heath and the other doctors who examined her hand.

[61] When considering conduct on other occasions, the purpose is not to show that a person is likely to have behaved in the manner alleged by an adversary simply because that person has behaved in the same way or a similar way in the past: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 224 per Mahoney JA.

[62] Evidence of character in civil proceedings needs to be treated with caution. The claim was put forward here on a basis similar to that of similar fact evidence. I note the discussion of the manner in which such evidence should be put before the Court in Cross on Evidence at [21,285] and there can be no question here of excluding material that relates to the circumstances in which a plaintiff has made a prior claim of injury to the same part of her body which she now claims is injured. Such evidence is commonly received in all personal injury cases, and many of the concerns expressed by the learned authors of Cross on Evidence at paragraph [21,290] would not apply to personal injury cases where prior injury to the same part of the body would be of relevance to all issues, not only liability but also quantum.

[63] The plaintiff was the subject of surveillance not only in relation to her 1998 hand injury but also in relation to the injury she alleged she suffered which is the subject of these proceedings.

[64] The plaintiff, who had completed cross-examination and re-examination, was recalled to the witness box (T 64, 11 May 2010) when videotape of her, taken at her home on 6 May 2010 and other date immediately prior to her giving evidence, was then shown. The plaintiff agreed that although she had given evidence of needing to wear her support and having trouble carrying things in her right hand, she was seen opening the door of her car with her right hand, bringing in rubbish bins using both hands without any difficulty as well as driving her vehicle.

[65] The surveillance tape paints a clear picture of a person with no movement restrictions of any kind.

[66] A comparison between the plaintiff's freedom of movement in the surveillance film with her careful guarding of her hand in the witness box and wearing a support while in the witness box is inconsistent. However, this evidence is of limited value in these proceedings. Firstly, the plaintiff does in fact suffer from problems with her hand, whether she wears the support at home or not. Secondly, I need to be cautious when considering issues of demeanour, particularly issues of demeanour in the witness box for the reasons explained by the High Court in CSR Ltd v Maddalena (2006) 224 ALR 1; (2006) 80 ALJR 458; [2006] HCA 1. Although in those proceedings the delay between the plaintiff giving evidence and judgment was eight months, and in the present case, it is very much shorter (and the video surveillance was taken in May 2010), it is nevertheless important to exercise caution in relation to demeanour findings. Accordingly, the surveillance videotape place very little part in my assessment of the plaintiff's credibility, although it is a small piece of evidence indicating that she is prone to exaggerate.

[67] This brings me to the issue of the other six claims for injury brought by the plaintiff. These have considerably less relevance to the claim which is before me for consideration. Some areas, however, are of importance. The first of these is that, as counsel for the defendants has pointed out in his written submissions, there is a repeated claim that the plaintiff is unable to work and must rely upon her daughter, Angela, to either carry out the work or to assist her, and the second is a claim of shock or other compensable distress.

[68] I note these as following: (a) Proceedings commenced on 3 May 1995 in the District Court against Sports Slazenger (Export) Pty Ltd trading as Slazenger (No 3035 of 1995) - the plaintiff alleges she was forced to leave her employment with the defendant due to hearing problems and claims the difference between what she earned while employed by the defendant and what she was able to earn subsequent to that employment. No reference is made to assistance from her daughter in this claim.

(b) Proceedings against Sporting Publications Pty Ltd trading as Palati Greek Nightspot (proceedings No 5202 of 1995) - the plaintiff claims economic loss for being unable to carry out her pre-accident duties, stating she has suffered no economic loss only because her daughters, Angela and Holly had performed the heavier cleaning duties. She claims the cost of employing her daughters totalling $15,921, together with ongoing future economic loss at $150 per week to continue to employ them.

(c) The claim in the 1998 proceedings (see Exhibit 3, pages 158-159).

(d) Proceedings No 682 of 2003 being proceedings for damages against Conca D'Ora Lounge Pty Ltd - the plaintiff claims economic loss on the basis that she was not able to work for two months at a total of $800 per week plus an ongoing serious diminution of earning capacity including past and future economic loss (Exhibit 3, page 230).

(e) Claim for motor vehicle damages, for a motor vehicle accident on 17 September 2002 - the plaintiff claimed she was receiving home assistance from her daughters Angela and Holly including cooking, cleaning, shopping and laundry and listed substantial disabilities (Exhibit 3, page 291); the medico-legal reports note that she is performing only light duties (page 313) and that the main duties are performed by her daughters, who also assist with personal housework (page 339, Exhibit 3). The plaintiff makes a similar claim (seeking economic loss by way of cushion on the basis that she has suffered no direct loss to date as her daughters have helped her) to that made in these proceedings.

[69] The undisputed facts are that the plaintiff, in the course of shopping at Best & Less, carried two children sundresses around the store for some time and left the store without having made a purchase in circumstances where one of her bags were not checked by the checkout person. This was observed by the first defendant who followed her out to the car park calling out "excuse me ma'am" three times. He believed for a number of reasons, including the plaintiff zig-zagging across the store, the fact that he could not see the dresses on the rack near the exit and the checkout person did not inspect the plaintiff's bag, that it was likely that an item had been stolen. The plaintiff conceded in cross-examination she heard Mr Bruton call out to her. The content of the discussion at the car are disputed. On the balance of probabilities, I am satisfied that the plaintiff has failed to establish that she was assaulted or gripped in anyway by the first defendant, nor was she pushed in the back and forced to return to the store. I am satisfied that as she herself said in cross-examination she returned to the store to show the first defendant where the sundresses were, and that she did so because he appealed to her for help and complimented her by saying that not everyone was as honest as she was.

[70] Upon arriving at the store, she pointed to where the dresses should have been. They were not there and some enquiries were made. I find that it was at this stage that the plaintiff realised she was under suspicion for shoplifting and that if the dresses could not be found, allegations might be made.

[71] The plaintiff in written submissions asserts (paragraph 26ff) that the situation was analogous to circumstances in which the first defendant made enquiries about two young indigenous girls who refused to accompany him back into the store. Mr Bruton had seen the younger of the two girls taking a small pack of underwear and putting it inside her jacket. These young girls refused to accompany the first defendant voluntarily so he told them that they had to (Exhibit 4, pages 53-54).

[72] The two factual circumstances are not the same. Concerning the two young girls, the first defendant was certain he had seen one of them take an item; in the present case, he had only suspicions and he used his persuasive powers to encourage the plaintiff to agree to return to the store.

[73] The elements of the tort of false imprisonment have helpfully been summarised by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 (McFadzean) (special leave to appeal to the High Court was refused: see McFadzean v Construction, Forestry, Mining and Energy Union [2008] HCATrans 213). These principles were reduced to a series of statements of principle in Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473. I gratefully adopt the principles drafted by counsel for the respondent in those proceedings, as set out by Lindgren J at [177]: "(a) the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment;

(b) false imprisonment is constituted by unlawfully subjecting another to total restraint of movement;

(c) the restraint must be total but it need not involve the use of force - it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion;

(d) the restraint may be comprised of a threat against the person or valuable property;

(e) the restraint must be imposed contrary to the person's will;

(f) where there is no application of force there must be evidence of complete submission by the plaintiff;

(g) there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available;

(h) the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action;

(i) it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff's decision to remain, the conduct must have overborne the plaintiff's will;

(j) in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment;

(k) whether [sic - where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it - there can be no false imprisonment;

(l) there are four factors to be considered in determining whether any ability to leave was a reasonable one:

(m) there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable;

(n) an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass;

(o) a mere partial interference with freedom to travel by one route does not compel a person to remain."

[74] Persons may not feel free to leave, or not be able to leave, in circumstances falling short of actual false imprisonment, as the court pointed out in State of South Australia v Lampard-Trevorrow [2010] SASC 56: "[282] We agree with counsel for the State that the fostering of Bruce Trevorrow does not readily fall under the heading of false imprisonment or wrongful imprisonment. In part this is attributable to the use of the word "imprisonment" to capture the factual essence of the cause of action. The factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation.

[283] But the restraint must be total. For example, an available means of escape from a restraint might mean (depending on the circumstances) that the restraint is not total."

[75] In such circumstances, any such restraint is not confinement or imprisonment, because the person is in reality free to leave: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 387 ; 13 ALR 249 at 252; McFadzean at [54]-[89]; State of South Australia v Lampard-Trevorrow [2010] SASC 56.

[76] I am indebted to the counsel for the plaintiff for his very helpful summary of the relevant aspect of the tort of false imprisonment. I shall set out each of the matters raised by the plaintiff in written submissions (at paragraph 11) and answer them as follows: (a) The requirement that the defendant do an act which is at least substantially certain to cause the confinement ( Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 512 per Kirby P).

Mr Bruton brought the plaintiff to the front of the store and then proceeded to make enquiries. He does not appear even to have stood beside her, or otherwise to have made her feel she was under any obligation to stay. Since she entered the store with him voluntarily, and he did nothing further after that, either by word or deed, to make her stay, she was not in fact confined in any way. She was not simply able to moving around the store, in the manner described by Lindgren J in Whittaker & Anor v Child Support Registrar & Anor (where the plaintiff was able to move around the airport), she was able to leave the store completely if she wished. There was, therefore, no confinement.

(b) Fault and malice are irrelevant: MacCulloch v TNT Ltd [2000] NSWSC 1183 at [39]; Ruddock v Taylor (2003) 58 NSWLR 269 at 272.

There is no question of fault or malice in these proceedings.

(c) The total restraint of the liberty of the person is required for however short a period of time: Goldie v Commonwealth [2004] FCA 156 at [17] per French J.

The plaintiff's liberty was not even partially restrained. She accompanied the first defendant voluntarily and was free to go.

(d) The place of imprisonment is not important and it can include, for example, a department store: Myer Store Ltd v Soo [1991] 2 VR 597.

(e) There is no need for an arrest for an imprisonment to exist: Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [35].

There is no question of any arrest in these circumstances.

(f) It is not necessary for the victim to be aware of the restraint; what must be demonstrated is that the victim's liberty had unlawfully been interfered with.

It is certainly the case that the plaintiff was unaware of any restraint. While that is not an essential element of the tort of false imprisonment, it may be a factor, however small, in determining whether imprisonment had in fact occurred.

(g) Assuming there has been an arrest, the onus is on Mr Bruton and Storchek Security to prove its lawfulness: Zaravinos v State of New South Wales (2004) 62 NSWLR 58.

[77] Taking all of the factual circumstances into account, I am satisfied that the plaintiff was never under any restraint of any kind. According to Mr Bruton's contemporaneous note, the plaintiff appears to have become upset when he would not give her his home telephone number. Her indignation at realising, probably after the event, that there was a suspicion that she was a shoplifter caused her to become angry and upset. However, I am satisfied that she was never dragged or pulled from her car nor pushed in the back in the manner pleaded in the statement of claim.

[78] The plaintiff also brings a claim for battery. I am satisfied that Mr Bruton never touched her at all. She accompanied him voluntarily to the store. Any injury the plaintiff has to her hand arises from the pre-existing problem which is the subject of her 1998 hand injury, and it is not to her credit that she failed to disclose this history of previous injury to the medical practitioners examining her for these proceedings.

[79] Nor do I accept that the plaintiff suffered psychiatric or psychological injury, hurt or distress. The diagnosis of Ross Colquhoun of post traumatic stress disorder in his report of 5 November 2008 is based on numerous errors. These include: (a) the claim that the plaintiff's blood pressure "has become elevated since the accident" (p. 2) when, as the plaintiff's prior medical history clearly demonstrates, she had a long history of high blood pressure readings. Mr Colquhoun does note (on p. 3) that there could be other explanations such as age, but while he says he "cannot conclude" it is a result of the incident he does place considerable weight on the plaintiff's claims of anxiety as a related factor.

(b) Similarly, the plaintiff made claims of sleep disturbance and depression in previous claims for personal injury damages. These were not matters occurring for the first time after the incident at Best & Less.

(c) Mr Colquhoun was given a misleading history of the plaintiff having worked full time up until this incident (page 3). He was not told of the plaintiff having a history of time off work due to injuries, which included claims of anxiety and depression.

(d) Mr Colquhoun was not told about the plaintiff's seven prior accidents and injuries, which could have been an explanation for the plaintiff's test scores, particularly since she claimed to have suffered anxiety and depression as a result of these other incidents.

(e) Finally, Mr Colquohoun's opinion of the honesty of the plaintiff is not one that I share. Mr Colquhoun says on p. 4 of his report:

"Honesty appears to be a value that influences and governs the was she acts and her construct system. Acting in a deceitful manner would be incomprehensible."

[80] By contrast, Dr Lee (Exhibit 1) had the benefit of reading Mr Barrie Kemp's report of 22 January 1999 concerning the plaintiff's complaints of worry, lack of motivation, depression, irritability and emotional liability following her hand injury. He prescribed Aropax, but noted that she did not take it.

[81] I agree with Dr Lee's diagnosis that this information "suggests, if anything, that she may have had a pre-existing condition as the injury for which I assessed her occurred on 1 April 2008". Dr Lee goes on to note that when he saw the plaintiff "she told me that she had no prior history of psychological problems, pain or hypertension" which, in Dr Lee's opinion, indicates she "has been an unreliable historian" (report 16 November 2009, Exhibit 1).

[82] The value of any expert medical opinion is dependent upon an accurate history being given by the person the subject of the report, and an expert report based on information which is substantially wrong is valueless: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218; [2001] NSWCA 305.

[83] The same is the case for the plaintiff's hand injury. The plaintiff steadfastly denied to Dr Harvey (report 16 November 2009, p. 2) as well as other doctors that she had a prior hand injury when this was not the case and the plaintiff's medical reports are of no forensic value in these circumstances.

[84] This brings me to the question of how to approach these medical reports in relation to the proposed amendment to the plaintiff's claim to restrict the claim, in the alternative, to a claim of a brief imprisonment while she was at the front of the Best & Less store. Obviously, none of the reports concerning the plaintiff's hand injury would have any relevance to a claim for false imprisonment which does not include a claim of the plaintiff's hand being grabbed or pulled. The claim would be for some nominal psychological or psychiatric damage only. I formally note that none of the reports before me refer to the circumstances of her being before the store; all of them relate to her distress of being forced from the carpark and manhandled by Mr Bruton. Having noted this, I now consider the application to amend the claim which was brought at the close of addresses.

[85] Although I am satisfied that the plaintiff was at no stage under any form of detention or confinement of any kind, I should consider the submission that she was, for the few minutes that it took the staff to find the sundresses, under some form of detention or confinement. This brings me to a consideration of the application brought by the plaintiff to amend the statement of claim to bring a claim on this basis.

[86] An application for leave to amend was brought in August 2010. The proposed amendment to the statement of claim is set out at the beginning of this judgment.

[87] This application was opposed by the defendants, who asserted that insofar as it was claimed to be based on the evidence in the proceedings (and in particular the implausibility of the plaintiff's account of having been assaulted in the car park) any such application should have been brought at the conclusion of the evidence, namely around lunch time on 12 May 2010 or following receipt of the defendants' submissions on 21 May 2010. It is submitted that to permit the plaintiff to run a new case after the conclusion of a trial where evidence has already been called is contrary to the provisions of ss 56-60 Civil Procedure Act 2005 (NSW) and to the warnings in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27.

[88] In addition, the defendants point to substantial prejudice caused by the late amendment. The plaintiff and her daughter were cross-examined on the basis of the case as originally pleaded, as were the defendants' witnesses. No consideration was given to the calling of store employees on the case as originally pleaded. All of the medical evidence had been prepared on the basis of the plaintiff asserting that she suffered serious injuries as a result of the assault by the first defendant. The injuries received included a claim for adjustment disorder and depression and anxiety and the circumstances in which the plaintiff was asserting that she suffered depression and anxiety as a result of this very brief period of alleged detention was not the subject of any medical evidence.

[89] I accept the submissions of the defendants that the late amendment should not be permitted. The prejudice to the defendants is substantial. There is no explanation for the lateness of the bringing of this application. It is factually inconsistent with the way in which the case was run. Accordingly the application for the amendment is refused.

[90] As it happens, I am satisfied that even during this brief period of time, the plaintiff was not under detention or in confinement either directly and intentionally or negligently. I am satisfied that the first defendant did not do any act which was substantially certain to cause the confinement. She was not restrained even partially, let alone totally: Goldie v Commonwealth of Australia (No 2) (2004) 81 ALD 422; [2004] FCA 156 at [17] per French J. She had accompanied the first defendant voluntarily to the front of the store and there is no evidence that he said words directing her to remain in the front of the store or indeed said anything to her to cause her to believe she was expected to remain.

[91] If I have erred in making this finding, then the circumstances in which the plaintiff was restrained are of such minor consequence as to fall within the range of Spautz v Dempsey (Supreme Court of NSW, Young J, 27 April 1993, unreported).

[92] Individually, each of the above matters would be a sufficient basis to refuse an application to bring an amendment at such a late stage in the trial. The cumulative effect of each of these reasons will be that the application for leave to amend is refused.

[93] The only injury the plaintiff could claim as a result of this very brief period of detention would be some form of psychological injury. As I have indicated, the question of psychological injury and/or PTSD was addressed by Mr Colquhoun on the basis of the whole of the incident. I have not accepted his report because of the many factual inaccuracies and omissions in the information supplied to him. There is no evidence concerning the impact of this brief period of detention upon the plaintiff and the plaintiff has accordingly failed to discharge the onus.

[94] It follows that the plaintiff has failed to establish liability and there will be judgment for the defendants. In the event that I have erred in this finding, I have set out some brief findings in relation to damages.

[95] The heads of damages claimed by the plaintiff are general, aggravated and exemplary damages, past and future out-of-pocket expenses, loss of earning capacity and domestic care (see paragraph 51 of the plaintiff's written submissions).

[96] It is submitted that if I find that the plaintiff was grabbed by the first defendant, then the defendants are liable for the injury to the plaintiff's wrist and thumb. If there is no finding that the plaintiff was grabbed by the first defendant, the damages for deprivation of liberty are claimed on a lesser scale. The plaintiff seeks $30,000 if I find that the plaintiff was assaulted and $10,000 if I do not find that she was assaulted. Interest should be allowed on 2% on 50% of this amount. These sums are within the range and it would be appropriate to award them.

[97] Past out-of-pocket expenses are claimed in the sum of $324.50 and future out-of-pocket expenses of $2,000 for surgery as recommended by Dr Heath (if the claim for grabbing is made out). I would award this sum.

[98] The claim for a cushion for future economic loss, originally put at $50,000, is now put at $25,000. I would not make any award for economic loss as her tax returns reflect no such loss.

[99] As to domestic care, it is submitted there is no challenge to the evidence given by both Mrs Goritsas and her daughter that she needed domestic care as a result of the injury to her hand. A claim is made at 3 hours per week at $20 per hour from 1 April 2008 to date and for six months into the future when surgery will occur. This is $6,400 for the past and $1,500 for the future. I would not award domestic assistance as I am satisfied the plaintiff does not require any, given her ability to perform tasks as seen on the surveillance film.

[100] Claims for aggravated compensatory damages in the sum of $2,500 together with a sum of $5,000 (if I do not find that Mrs Goritsas was grabbed by the first defendant) or $10,000 (if I find she was grabbed by the first defendant).

[101] The total damages have been added up by counsel for the plaintiff to $80,224 plus interest.

[102] I shall deal with each of these items in turn. As I have found for the defendant on issues relating to liability, these comments will be brief.

Summary concerning general, aggravated and exemplary damages

[103] If the plaintiff was grabbed, the quantum of general damages claimed by the plaintiff in written submissions (see above) would be appropriate. If my finding that the plaintiff was not grabbed by the defendant, and was not pushed in the back in order to direct her into the store, is correct, but the plaintiff should recover damages then the plaintiff's damages would be nominal at best. She suffered no injury of any kind as a result of the incident on 1 April 2008, was detained for a few minutes in the front of the store while an enquiry was made, and suffered no injury, including no psychiatric injury. The plaintiff suffered little more than temporary hurt to feelings and an appropriate award would be in the region of $1,000.

[104] As I have noted above, if I have erred in finding that the plaintiff was not grabbed by the defendant, then regard must be had to her long-standing prior injury to the right hand and this raises the question of what she should be awarded.

[105] I would prefer the medical reports of the defendants to those of the plaintiff, since they were prepared on a more accurate basis in relation to the plaintiff's past medical history. I would be satisfied, as a result of reading these reports, that there is no relationship between the surgery that the plaintiff would require and any injury caused by having her hand grabbed by the first defendant. However, if I have erred, then the quantum of damages sought by the plaintiff (see above) is appropriate.

[106] No claim for aggravated or exemplary damages could be made unless the plaintiff was grabbed and forced to enter the Best & Less shop, as was conceded by counsel for the plaintiff in the course of the application to amend. If I have erred in finding that the plaintiff was not grabbed by the hand and pushed in the back as alleged, that would constitute a basis for a small grant of exemplary damages, namely the sum of $5,000 for aggravated compensatory damages (if she was not grabbed) or $10,000 (if she was grabbed), these being the sums submitted by counsel for the plaintiff.

[107] The resulting damages, on any scenario, are small. I should note in relation to costs that pursuant to s 33 Local Court Act 2007 (NSW), actions for wrongful arrest and false imprisonment cannot be commenced in the Local Court and accordingly the provisions of rr 42.34 and 42.35 Uniform Civil Procedure Rules 2005 (NSW) would not apply. Nevertheless, where a very small claim for damages is brought, a court may exercise its discretion in relation to costs. Having regard to issues of proportionality under s 60 Civil Procedure Act 2005 (NSW) (for a discussion of these issues at common law, see Jones v Sutton (No 2) [2005] NSWCA 203). I would be of the view that if the plaintiff cannot establish her entitlement to more than nominal damages (Spautz v Dempsey, supra) her entitlement to legal costs should reflect this nominal verdict by an adjustment of costs being made in much the same way as the Court of Appeal in Jones v Sutton (No 2), supra. This is not to criticise in any way the conduct of the plaintiff's case by Mr Sheller, and his instructing solicitors, which was exemplary throughout.

Orders (1) Judgment for the defendants. (2) Plaintiff pay defendants' costs. (3) Liberty to restore. (4) Exhibits retained for 28 days.

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