Myer Stores Ltd v SOO - Case note PDF

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Myer Stores Ltd v SOO – Case Note Parties: First appellant – Myer Respondent – Mr Soo Citation: Myer Stores Ltd v SOO [1992] 2 VR 597 Court: Supreme Court of Victoria Appeal Division Judges: Murphy J, O’Bryan J and McDonald JJ Summary of Key Facts: On 8 August 1985, respondent went into the hi-fi department on the first appellant’s store in order to negotiate the purchase of a video-recorder. One Employee of first appellant, E, contacted uniform police, the second and third appellant (M and S), for the recent shoplifting incidents. In those contacts, respondent was spotted as a suspect of shoplifting. Subsequently, E, M and S approached respondent while he was in the hi-fi department. Respondent asked, ‘what was wrong’. He was told he was matching his description as recent shoplifting incident. As a response, respondent said: “You have got the wrong man.” The respondent said he was consent to be questioned where he was. Then S told respondent to follow E who led the way, while S and M escorted him in a position of some 10 to 15 feet behind him to reach the security offices. When respondent was in the interview room, he was given his identity and kept approximately an hour. On 16 August, a search warrant was issued by a magistrate on the ground that stolen items were ‘supposed’ to be at the dwelling house of respondent. The warrant authorised members of police force to break, enter and search by the day the said dwelling. About 5:30PM, police entered the dwelling of respondent and it took some 50 minutes of to complete the search. The different evidence suggests that the search was started at time of dusk but in the daylight while it finished when it was definitely dark. A discussion about further interview was agreed by respondent. On the following Monday, respondent attending police station at Russel Street volunteering and released at exoneration. Issues for Consideration/Grounds of appeal: 1) the gist of the action for false imprisonment is the mere imprisonment. Any total restraint of the liberty of the person by confinement is an imprisonment. 2) Soo was falsely imprisoned by the police officers from the time of the request until the time of his eventual release from the interview room. 3) Soo was not falsely imprisoned when he attended at the police station. 4) To be liable for false imprisonment it must be the act of the def or his agent that imprisonment the plaintiff, or the def must be active in promoting and causing the imprisonment 5) The two police officers and E were joint and several tortfeasors because they participated in a common action and acted in concert together: their acts were 1

done in furtherance of a common design. 6) Myer, by being the employer of E who had committed a tort within the scope of his employment, was also a joint tortfeasor with E and two police officer, and was therefore liable for E’s tort. 7) Aggravated damages are compensatory in nature, being awarded for injury to the plaintiffs feelings caused by insult, humiliation and the like. 8) The tort of false imprisonment is a tort which by its nature gives rise to aggravated damages. 9) It was appropriate that an award of aggravated damages be made in favour of Soo, particularly in the light of the conduct of Myer at the trial. Soo should be awarded $10,000 in damages. 10) The portion of the search which occurred after sunset was unauthorised and thereby constituted a trespass. It was open to the trial judge to conclude that damages for the same should be nominal only. 11) Myer could not be held liable for the trespass because the police did not search Soo’s premises as the agent of Myer nor in furtherance of a common intention with E; nor was an act of Myer the proximate cause of the search. Ratio: Murphy J: 1) Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44, 51-3: ‘imprisonment is no other thing, but the restraint of a man’s liberty’. It involves restraint within a particular space. 2) The resultant detaining of the respondent from the moment he was approached until he was allowed to leave the Myer security room to which he was escorted, was a serious encroachment on his liberty….that if he did not submit to do what was asked of him, he would have been compelled by force to do so. 3) Walter v Alltools Ltd (1944) 61 TLR 39: “False imprisonment affected not merely a man’s liberty but his reputation, and damage to the latter continued until it was caused to cease by an avowal that the imprisonment was false.” 4) The damages in an action for false imprisonment are generally awarded not for pecuniary loss but for a loss of dignify, mental suffering, disgrace and humiliation. Any deleterious effect on the plaintiff’s health will also compensated. 5) By persevering in a charge which has brought about a false imprisonment, the damages are aggravated: see also War- wick v Foulkes (1844) 12 M and W 507; 152 ER 1298. O’Bryan J: 1) The gist of the action for false imprisonment is the mere imprisonment and the respondent carried the burden of establishing the imprisonment. It is enough to prove there was a constraint upon the respondent's will so great as to induce him to submit to deprivation of liberty. Actual physical force does not have to be proved: Greenwood v Ryan (1846) 1 Legge 275. Whether the respondent was detained at Russell Street was a question of fact: Collins v Wilcock[1984] 1 WLR 1172; [1984] 3 All ER 374. 2) The trial was conducted upon the basis that the war- rant was valid but had been unlawfully executed. "day" for the purposes of the warrant meant "before sunset". 2

3) the court held the police intentionally restrained the movement of the plaintiff by actively escorting him and passively by making known to him their clear intention to ask him some questions about shoplifting. “In my view it was made clear to the plaintiff that he had no option but to follow E and by being followed by the police it was made clear to him that he had no choice in fact - his freedom of movement had been totally restrained." 4) “he was obliged to remain in that room until the police had completed their inquiries as to his identity Although he was not at any stage actually restrained, he was not at any time a truly voluntary attendant within that room; had he attempted to leave before inquiries had concluded he would have been restrained and/or arrested. Accordingly, I find that the plaintiff was imprisoned whilst he was present within the security room." 5) Whilst it is not an essential element of the tort of false imprisonment that the victim should be aware of the fact of deni- al of liberty, the victim in this case was well aware that he was under restraint: Murray v Ministry of Defence [1988] 1 WLR 692; [1988] 2 All ER 521. Knowledge of unlawful restraint is relevant to the issue of damage. McDonald J: 1) In Halsbury's Laws of England, 4th ed., vol. 45, para 1325: "An action of false imprisonment lies at the suit of a person unlawfully imprisoned against the person who causes the imprisonment. Any total restraint of the liberty of the person, for however short a time, by the use or threat of force or by confinement, is an imprisonment. To compel a person to remain in a given place is an imprisonment, but merely to obstruct a person attempting to pass in another direction or to prevent him from moving in any direction but one is not. “ 2) S was found out he was not actively restrained but he was not at any time a truly voluntary attendant within that room. 3) For a person to be liable at law for false imprisonment that imprisonment must be the act of that person or the act of his agent or someone for whose act he is liable. 4) To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment: Aitken v Bedwell (1827) Mood and M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury, 4th ed., vol. 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing that imprison- ment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet 5) In Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; 61 ALJR 549 the High Court in its judgment, CLR at p. 8; ALR at pp. 191-2; ALJR at p. 551, distinguished between aggravated damages and exemplary damages. The court said: "Ag- gravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plain- tiffs feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensa- tion and are awarded 'as a punishment to the guilty, to deter from any such proceeding for the future, and as proof of the detestation of the jury to the action itself 6) The tort of false imprisonment however is a tort by its nature that gives rise to 3

aggravated damages. Walter v Alltools Ltd (1944) 61 TLR 39; [1944] WN 214, Lawrence LJ, TLR at p. 40 Important Obiter: 1) Joint tortfeasors: The Koursk [1924] P. 140, at p. 155: Certain classes of persons seem clearly to be 'joint tortfeasors': The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasors; there is one tort committed by one of them on behalf of, or in concert with another."

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