McNamara v Dunnes Stores (Parkway) Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 09 March 2017
• Neutral Citation: [2017] IEHC 172
• Docket Number: [CIRCUIT COURT RECORD NO. 2009/1190]
• Court: High Court
• Date: 09 March 2017

[2017] IEHC 172

THE HIGH COURT

CIRCUIT COURT APPEAL

Murphy Deirdre J.

[CIRCUIT COURT RECORD NO. 2009/1190]

BETWEEN

MARY MCNAMARA

PLAINTIFF

AND

DUNNES STORES (PARKWAY) LIMITED

DEFENDANT

Defamation – Damages & Restitution – Wrong allegations of shoplifting – Slander – Quantum of damages

Facts: The defendant had filed an appeal against the order of the Circuit Court in which the learned Court awarded damages to the plaintiff along with the costs of the proceedings. The plaintiff contended that by the acts of the defendant, in making false allegations of shoplifting and searching her bag in the public, the defendant's employers had brought her ill reputation. The defendant submitted that it was just a mistaken belief that the plaintiff had shoplifted certain items, which in reality was done by another person.

Ms. Justice Murphy awarded damages to the plaintiff, subject to reduction in that amount for the plaintiff's contribution in publication of the defamation. The Court also awarded aggravated damages to the plaintiff against the defendant for the failure of the defendant to preserve the relevant CCTV footage. The Court observed that the defendant's employers, by their conduct of searching the plaintiff's bag in the public and making false accusation of shoplifting in front of a certain known person, amounted to the defamation. The Court, however, noted that the refusal of the plaintiff to return to the defendant's premises for amicable resolution of the matter contributed to the plaintiff's being defamed as she denied any possibility of settling the matter in the private. The Court held that it was not appropriate for the defendant to plead for qualified privilege on one hand and then, take the defence of justification.

JUDGMENT of Ms. Justice Murphy delivered on the 9th day of March, 2017.

1 This is an appeal from an order of the Circuit Court made on 8th July, 2015 in which the Circuit Court awarded the plaintiff damages in the sum of €20,000 together with costs of the proceedings in respect of her claim for damages for slander, false imprisonment, assault, battery and/or trespass to the person.

2 The plaintiff's claim arises from events which occurred on 3rd May, 2008 in a shopping mall at Parkway, Limerick. The sequence of events is not materially in issue and was as follows:-

Background

3 On 3rd May, 2008, which was a Saturday, the plaintiff and her then twelve year old daughter, Tamara, were shopping for a confirmation outfit for Tamara. They purchased an outfit at a shop known as ‘ Adams’ and went to the defendant's premises in Parkway looking for matching items. The plaintiff had two bags with her being the shopping bag from Adams in which the confirmation outfit was placed, and a large zipped handbag.

4 While in the drapery section they came to the attention of one of the defendant's security staff, a Mr. Syed Hasnain Alam, who observed them first on camera one and then on camera seven of the store's CCTV system. In a statement made approximately a week after the events and maintained in evidence, he stated that the plaintiff placed an item or items of clothing into her bag.

5 The plaintiff and her daughter left the store. At the time they left the store Mr. Alam was quite a distance away from them observing the security cameras. He rushed out of the store after them and he can be observed doing so on the general shopping mall security CCTV footage at 16:50:26. Unfortunately, the initial interaction between the plaintiff and Mr. Alam is not captured on the mall CCTV footage because the camera operator was following the progress of an attractive young woman who he claimed to be his cousin.

6 31 seconds later at 16:50:57, the mall CCTV footage shows Mr. Alam standing in front of the plaintiff, between her and the mall exit. The plaintiff's daughter Tamara is seen standing to the side of her mother, looking on. There are people moving about the mall and certainly one passer-by can be seen looking at the encounter between the plaintiff and Mr. Alam.

7 The CCTV footage shows three frames per second. In the course of the ten seconds between 16:50:57 and 16:51:07, the plaintiff can be seen opening the Adams bag for inspection by Mr. Alam and Mr. Alam is seen lifting items in the Adams bag.

8 At the end of the encounter, Mr. Alam is seen heading back towards Dunnes Stores. The plaintiff is seen heading in the opposite direction towards the exit of the mall. As she does so, there is a noticeable turn of her head and she appears to be saying something which catches the attention of a female shopper who briefly turns around.

9 The plaintiff proceeded to the car park where she met another of her daughters and apparently by chance met the operator of the mall CCTV camera, a Mr. Tony O'Connor who, having observed the encounter between Mr. Alam and the plaintiff on the mall CCTV, urged her to make a complaint to Dunnes Stores.

10 Minutes later, the plaintiff and her two daughters returned to Dunnes Stores where they spoke with a female manager who was slightly known to the plaintiff. They complained to her about the actions of Mr. Alam. The plaintiff has given evidence and it has not been disputed by the defendant, that the manager apologised for Mr. Alam's behaviour and later that day phoned to see how the plaintiff's daughter Tamara was faring in the aftermath of the incident. The relevant footage from the Dunnes Stores CCTV cameras was downloaded and recorded on the instructions of the manager.

11 Ten days after these events, an initiating letter was sent by the plaintiff's solicitor which, inter alia, stated:-

‘In addition to our understanding that the entire incident was caught on CCTV, we hereby request that you provide us with a copy of same or in the alternative, undertake not to destroy or otherwise interfere with same pending the hearing of the case should proceedings be issued.’

12 Two months later on 3rd July, 2008, the defendant's head of insurance wrote to the plaintiff's solicitors indicating that they had carried out full and careful inquiries into the allegations made by the plaintiff. The letter raised the issue of qualified privilege and stated:-

‘We are entitled to take whatever reasonable means necessary to protect our property. In this regard we are entitled to make appropriate enquiries as to proof of purchase. We would respectfully suggest that the events occurring on the day in question related to our reasonable and appropriate enquiries in this regard.’

The letter went on to complain that the plaintiff herself had escalated the situation by referring to the security officer in terms which were both abusive and racist and that the remarks were:-

‘…in fact a slur on our employee's good reputation and character and would in themselves warrant further investigation.’

The letter concluded by stating:-

‘It may well be [that the plaintiff] was affronted by being approached by our security officer, but we hold that this approach was discreet and reasonable in the circumstances, on which basis we would hold that there was no issue of defamation or false imprisonment’.

The letter stated that the plaintiff and her family continued to be welcome to shop in Dunnes Stores.

13 Proceedings for slander, false imprisonment and/or negligence were issued on behalf of the plaintiff on 28th May, 2009, a little over a year following the incident.

14 The CCTV footage of the plaintiff's movements in Dunnes Stores was not preserved. The defendant has not offered any cogent explanation as to how it went missing other than to state in an affidavit of discovery that the:-

‘said footage despite extensive searches cannot be located and accordingly the date upon which it was last in the possession of the Defendant is not known.’

The pleadings

15 In the indorsement of claim on the civil bill the plaintiff pleads that on 3rd May, 2008 she was in the defendant's premises as a customer and/or invitee. At paras. 4 and 5 she sets out her account of events being as follows:-

‘4. The Plaintiff was shopping with her daughter Tamara McNamara and they had bought some items in Adam's children's wear in the Parkway Shopping Centre. They then proceeded to Dunnes Stores to find some matching garments. They did not find anything suitable and were exiting the shop. The security guard then wrongfully and unlawfully assaulted and battered the Plaintiff by grabbing the Plaintiff by the shoulder and behaving in a threatening and aggressive manner and preventing the Plaintiff from leaving the premises. The security guard then accused the Plaintiff and her daughter of wrongfully unlawfully and maliciously of stealing items from the said Defendant's store when he said to them ‘You took something’. The Plaintiff was stopped “dead in her tracks” and startled. The security guard then demanded loudly that she show him the contents of her bags. She initially refused to allow him to search her bags but he would not allow her to exit. She felt she had no choice but to stand there while he searched through her handbag and shopping bags without her express consent. At this point a crowd had started to gather around them, which included a number of Tamara McNamara's school friends as well as other shoppers.

5. Having finished searching her bags and finding nothing incriminating the security guard then snapped that they could go. Our client was deeply upset and embarrassed and asked that he apologise. He initially refused but then mumbled a barely audible sorry. A few minutes after the incident the Plaintiff and her daughter returned to Dunnes Stores to report the incident to management. There they saw the same security guard sitting at his station looking at the security monitor with a number of other Dunnes Stores staff around him. They were reviewing the security footage and were all looking at the...