Morrissey v Coles Supermarkets Australia Pty Ltd - [2023] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MORRISSEY -v- COLES SUPERMARKETS AUSTRALIA PTY LTD [2023] WADC 133
CORAM:   BLACK DCJ
HEARD:   8 NOVEMBER 2023
DELIVERED          :   Ex tempore
FILE NO/S:   CIV 4486 of 2021
BETWEEN:   KAL MORRISSEY
Plaintiff

AND

COLES SUPERMARKETS AUSTRALIA PTY LTD
First Defendant

MCS SERVICES GROUP PTY LTD t/as MCS SECURITY
Second Defendant

Catchwords:

Battery - False imprisonment - Raising evidence not included in pleadings - Turns on own facts - Credibility findings

Legislation:

Nil

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr D R Clyne
Second Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	McCabes
Second Defendant	:	Verus Workplace Law

Case(s) referred to in decision(s):

Alderson v Booth [1969] 2 QB 216
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Carter v Walker [2010] VSCA 340
Cunningham v Traynor [2016] WADC 168
Governor of Brockhill Prison, Ex parte Evans (No 2) [2001] 2 AC 19
Myers Stores Ltd v Soo [1991] 2 VR 597
Symes v Mahon [1922] SASR 447
Watson v Marshall (1971) 124 CLR 621

BLACK DCJ:

Introduction

The plaintiff brings an action against Coles Supermarkets Australia Pty Ltd (the first defendant) and MCS Services Group Ltd (MCS) (the second defendant) with respect to her allegation that she was falsely imprisoned and the victim of an assault and battery on two occasions.
The plaintiff, although self‑represented, claims to hold three law degrees and a PhD. It further emerged during the course of the trial that she had previously sued a, not insignificant, number of people in the past giving her both the confidence and capacity to conduct her own trial without significant assistance from the court.
The plaintiff at all material times was living in Baldivis, a suburb in the southern parts of Perth.
The plaintiff was, however, a regular customer at the Coles supermarket in Wanneroo, a suburb in the northern parts of Perth and a substantial distance from Baldivis.
The plaintiff, by her own account, had been having problems with the Coles supermarket in Wanneroo for around 10 years. There appears to have been a history of disputes between herself and staff from Coles over that time. This trial involves two of those occasions.
The two occasions that are relied upon by the plaintiff are as follows:
1.On 21 March 2020 the plaintiff claims she was falsely imprisoned by the first and second defendant and that she was subjected to an assault and battery by the second defendant (the First Occasion);
2.On 1 May 2021 the plaintiff claims that she was falsely imprisoned by the first defendant (the Second Occasion).
The plaintiff asserts in these proceedings that the impact of the actions of the Coles employees and the security officers on the First Occasion involved significant physical and mental consequences to her. These included her loss of liberty, dignity, reputation, the possible danger to her life, embarrassment, and humiliation.
Despite this, the plaintiff continued and continues to attend at this particular Wanneroo Coles supermarket rather than one of the many other Coles supermarkets located between Baldivis and Wanneroo or an alternative Supermarket chain such as Woolworths.
The plaintiff's claim arises from her account that on two occasions employees of the first defendant falsely accused her of stealing a West Australian newspaper.
While the plaintiff sought to devote some time in the trial to establishing the fact that she had in fact purchased the newspaper from a nearby newsagency on each of these occasions, for the purposes of this trial it was not in fact ever suggested by either defendant that she had actually stolen the newspaper on either occasion.
The nature of the first of the actions brought, namely for the tort of false imprisonment, required focus on the issue of whether the plaintiff had in fact been unlawfully restrained or detained against her will on either or both of the particularised occasions.
Further, the second cause of action related to the plaintiff's contention that on the First Occasion she was deliberately struck by one of the two security guards who were employed by the second defendant. The nature of the alleged strike was a deliberate pushing of a shopping trolley at her which she said caused her to fall backwards and strike her back against a counter. This also was said to give rise to her soiling herself by urinating into her clothing.
The only direct evidence regarding these claims that was adduced by the plaintiff came from the plaintiff herself. The other witness called by the plaintiff at trial simply provided corroborative evidence that she had not stolen the newspaper on either occasion.
Proof of the plaintiff's case against each of the defendants was therefore almost entirely dependent upon an acceptance of the plaintiff as an honest and reliable witness. Her credibility was central to her case.
The first and second defendants were represented together by counsel.
The defendants contended that neither of them ever unlawfully detained or restrained the plaintiff and further that the second defendant did not strike the plaintiff with the shopping trolley. In fact, the second defendant asserted that one of its guards was struck with a trolley by the plaintiff.

Third Alleged Incident

At trial and in the plaintiff's written opening submissions, the plaintiff attempted to rely upon a third incident said to have occurred on 26 February 2022, relating only to the first defendant, where she once again contended that she was falsely imprisoned.
The first defendant objected to evidence relating to this alleged incident on the basis that it was not the subject of the writ nor of the pleadings.
At the start of the trial the plaintiff was provided with an opportunity to argue why the court should allow the additional evidence to be included in this trial in circumstances where it did not form part of the pleaded case.
The explanation given effectively amounted to an assertion that the plaintiff had other priorities and did not prioritise the need to amend the pleadings. She stated that she had done this once and decided not to do it again.
In my view, it would have been unfairly prejudicial to the first defendant to respond at trial to an allegation that had never been brought against it until shortly before the trial. Further, in circumstances where the plaintiff did not seek to amend her statement of claim at an earlier time, despite having adequate opportunity to do so, was fatal to her application to seek to introduce this evidence at such a late stage.

First Occasion

On 21 March 2020, shortly after the start of the COVID‑19 pandemic in Australia, the plaintiff left her friend's house to walk a short distance to the shopping centre that housed the first defendant's store.
On this day the plaintiff was concerned about the emerging threat of COVID-19 and the need to be socially distanced. She did not, however, wear a mask.
At about 9.45 am she entered a newsagency in the same shopping centre and purchased a copy of the West Australian newspaper. At this time she had a Coles trolley she had collected from outside the shopping centre and she placed her newspaper in the body of the trolley.
She was carrying with her an old red and white Coles shopping bag which had a raincoat inside it and a handbag.
She said that she had previously been accused of stealing by Coles and that she knew Coles sold the West Australian newspaper. She explained that she purchased the West Australian newspaper prior to going to Coles, despite the risk of being asked to pay for it by Coles, as she considered that it was better for the perishable shopping items to get them last.
She entered the Coles supermarket and walked directly through to the bread section. She collected her bread, placed it in the trolley and went to the delicatessen section that was down the other end.
There she ordered four slices of polony which was already cut. She placed the polony in the trolley and thought about two minutes had passed.
The plaintiff then proceeded to the closest checkout, which was an express checkout (12 items or less), but serviced by a Coles employee by the name of Amy‑Lee.
She gave Amy‑Lee $3.00 for her bread and polony which had come to a total cost of $2.80.
Instead of giving the plaintiff the 20 cents change and receipt, Amy‑Lee said to her that she could not leave the store until she paid for her newspaper.
The plaintiff told Amy‑Lee that the paper was hers and that she had brought it from the newsagency. Amy‑Lee replied that if she had bought it from the newsagency that it would have an ink stamp on it.
The plaintiff did not respond to Amy‑Lee but told the court that she had never seen a stamp on the papers from the newsagency and she had been purchasing from the same newsagency for close to 10 years.
The plaintiff said that another Coles employee arrived at the service desk who she thought was a lady called Mrs Robinson. Mrs Robinson stated to her that she was calling the police.
The plaintiff said nothing else was said by anyone at that time other than what is described above.
She said that Mrs Robinson had a mobile phone to her ear, but she could not hear what was being said.
The plaintiff then said, 'Well come with me to the newsagency to ask him' to which Mrs Robinson replied 'No, I am calling the police'. This requested was repeated two further times.
The plaintiff then looked away from the till which she had been facing, to the left in the direction of the exit and there were three people waiting there 'blocking the exit from the checkout' so she could not walk out. They were all female and were wearing Coles uniforms. One of the ladies' names was Michelle. The other two were unknown to the plaintiff.
They did not do anything, nor say anything and did not move for a while and the plaintiff did not know what to do.
The plaintiff said they were standing across the aisle so there was no space for her to go through. She would have had to push them over to get out of the checkout. This was despite the multiplicity of other exits available to the plaintiff.
A moment later one of the security guards by the name of Mr Witold came and was trying to do a bag check of her. He said something like 'have you got anything in your bag?'. She refused to let him look in her bag and he did not do anything in relation to her bag.
She stated that a short time elapsed and she was still standing and unable to get out of the Coles supermarket as the three people were still blocking her way.
She said that Mr Witold then moved a bit and 'shaped up to her' and got behind the trolley and she was concerned what he was going to do as he was being aggressive. He was in her face, and she was concerned as they were meant to be social distancing. She said that she had later seen a video showing this by the lawyers for the defendants, but that video had not been produced at trial.
She needed the toilet but did not tell that to the security guard. She saw that the security guard was looking in the direction of the greengrocers and thought it was her chance to escape. At this point the three Coles employees previously blocking her exit had left. She said that the other security guard, Mr Sharma, was at the exit of the shop with his back turned to her.
She pushed the trolley a little bit forward to get to the toilet and Mr Witold then grabbed the trolley and pushed it to the right so that she lost control. Her hand hung on to the trolley, one foot came off the floor and she fell back against the edge of the counter. She did not fall to the floor.
When she got to her feet there was a Coles man standing there wanting to do a bag search. He told her if she had nothing to hide that she would show them what was in it. She said he was being aggressive. Although the plaintiff vigorously maintained this person was not Mr Sharma, the body camera footage tendered at trial made it abundantly clear that in fact it was Mr Sharma speaking with her, not a mystery Coles employee.
She said she was scared. She stated that just before or after the attempted bag search by the Coles man (an occasion that was not clarified by her) she had an unfortunate accident and wet herself. The urine went through her underwear and onto her shoes and onto the floor.
Mr Witold went somewhere but Mr Sharma was still there at the end of the trolley so she could not get out. He was blocking the exit. He was, in her opinion, clearly guarding her. The body camera footage does not bear this out.
She agreed that no‑one, with the exception of Amy‑Lee at the start of this incident, ever told her in words that she could not leave the store.
She had however, been given permission to leave and she did not want to leave as she still was waiting for her 20 cents change and receipt. She wanted to wait for the receipt because she did not want to be accused of stealing the bread and polony as well.
She agreed that Mr Sharma said she could go if she liked but she did not want to. She said that because of the assault on her by the other guard, she wanted to wait for the police. On the video she was heard saying 'I'm enjoying this' but she claimed this was meant sarcastically.
She also said that she thought Mr Sharma did not mean it when he told her she could leave and that he was trying to provoke her.
A few minutes later she did however leave and go to Flight Centre where she remained for about 30 minutes. She did not go to the bathroom or change her soiled underwear before going to Flight Centre.
After leaving Flight Centre she went back to the newsagent to confirm if he remembered selling her the West Australian newspaper which he confirmed that he did. It was also at this time she enquired into the stamps on the papers.
She then went to the disabled toilet around near Coles. After leaving the toilet she went to leave the shopping centre. As she got to the top of the escalator, she saw two police officers who arrested her on suspicion of stealing.
After allowing her to leave, she went to the library. She did not change her clothes.
From this, it is apparent that the plaintiff does not allege that any person other than Amy‑Lee initially ever told her that she could not leave the store. Rather, her claim for false imprisonment relates to her assertion that after the words used by Amy‑Lee she was then prevented from leaving the store by the actions of the Coles staff and subsequently the security officers.

Second Occasion

The plaintiff had been banned from attending the first defendant's stores for a period of 12 months as a consequence of her alleged behaviour on the First Occasion. She was in any event traumatised she says from the experience. Despite this she attended at the first defendant's premises during the period of the ban and then again on the first day after the ban had ended.
On 1 May 2021 she again returned to the first defendant's premises.
She purchased a newspaper prior to going to Coles and placed it into the Coles trolley before going into the store. This was despite the history between herself and this Coles supermarket.
She had with her a trolley, a newspaper, an empty Coles bag and a handbag. She purchased $11.25 of standard items and was served by an employee called Lyn who she said got on very well with.
Despite her fear of COVID-19 and that the fact that strict requirements were in place, she chose to attend without wearing a mask. She said this was because she had a mask exemption as she could not breathe with a mask on and got breathless attacks.
As she went to leave Coles, she noticed three Coles workers blocking her exit, just like on the First Occasion. These consisted of a female on the left, a male from Coles and then on the right was a young girl with long blonde hair.
The male said to her 'you haven't paid for the paper'. In reply she said, 'Yes I have. I bought the paper at the newsagent'. He then said to Lyn not to put the transaction through but it had already been completed.
The male then said 'I'm informed that you haven't paid for the paper before' to which she replied 'Well you have been misinformed'.
The plaintiff remained at the register for a few minutes with nobody doing anything and the three people continued to block the exit from the store. She said she had been through the checkout and 'paid for my items, put the items in my trolley and I hadn't got my receipt and I wanted my receipt and didn't want to go without my receipt'.
After a few minutes, she said Lyn was told to give the receipt to the plaintiff which she did.
During this period of time while trying to leave the store there was no discussion between the Coles workers and a stare out occurred. The first thing that was said by anyone was when the male Coles worker said to Lyn to hand over the receipt.
The plaintiff then turned to the young blonde Coles worker and said 'Come with me to the newsagent and ask for yourself if I bought the paper there'. The Coles worker agreed to do that. When she started to move, the other two Coles workers moved away, and she exited through the checkout aisle.
At the newsagency the young blonde girl from Coles confirmed that the plaintiff had paid for the paper and the plaintiff then left the newsagency and went outside.

Other EVIDENCE:

Frank Zakarias and receipts

Mr Zakarias was called by the plaintiff to confirm that the plaintiff did purchase newspapers from him including on the First Occasion.
He otherwise confirmed that the plaintiff was a regular long‑standing patron of his newsagency and that he did not stamp papers or ordinarily provide receipts for their purchase.
His evidence was uncontroversial, and I readily accept him to be a credible witness. His evidence confirms what was never directly challenged by the first defendant, namely that the plaintiff purchased the West Australian newspaper from his newsagency on regular occasions rather than stealing them from Coles.
There is direct evidence that the plaintiff did purchase the West Australian newspaper from his newsagency on 21 March 2020 and most likely also on 1 May 2021 although there is no independent evidence of this.

The defendants' case

The defendants jointly called three witnesses. All three witnesses gave evidence only relating to the First Occasion.

Melinda Robinson - Coles

Ms Robinson was the store support manager. She was called to the service desk on the First Occasion because the plaintiff had been suspected by Amy‑Lee of not paying for a newspaper.
She said that she asked for a receipt for the newspaper and the plaintiff stated that she had got it from the newsagency. The team member told her that they usually put a stamp on the newspaper. She asked the plaintiff if she had bought it from the newsagency and she said she did.
She then told the plaintiff that she was happy for her to go and get a receipt from the newsagency because they would remember her if she bought it from there. The plaintiff refused.
Ms Robinson said that she then arranged for security to be called down for the centre. The plaintiff said to her, 'You can come with me to the newsagency', and she replied, 'Unfortunately, we're not allowed to leave the store'.
Security then spoke to the plaintiff and asked the plaintiff what the issue was. The plaintiff said she had bought the paper from the newsagency. They responded, 'Well, you can go and get the receipt'. She responded, 'I don't need to. I don't need to prove that I bought it'.
At this time, she was standing behind the service desk in the kiosk area and indeed remained there the whole time of the incident.
She said that after that the plaintiff started pushing her trolley into the older of the two security guards, which I find to be Mr Witold, she stepped away and called the police. She said the plaintiff was quite angry and was still pushing the trolley. The security guard was trying to tell her to stop. After a period of time the security let her go.

Ms Robinson said that at no stage did she see the plaintiff fall. She checked the floor area and there was no urine or anything else that needed cleaning. At no time did she observe a Coles staff member prevent the plaintiff from leaving. When the police arrived, the plaintiff was still in the centre.
She said she was responsible for writing out a banning notice which was issued because of the aggressive behaviour of the plaintiff and she gave it to the police and the police issued it to the plaintiff.
She said that the plaintiff was quite calm apart from being aggressive with the trolley and that there were no signs of distress.

Sunny Guarav

Mr Sharma said he had been a licensed security guard since 2012 and had worked at the Wanneroo Shopping Centre for the second defendant since that time. On 21 March 2020, he was on duty with Mr Jack Marzec, also known as Jack Witold.
He received a call from Coles staff to assist regarding a bag search. He and Mr Marzec waited outside the store until the plaintiff came out and Coles staff asked to check the bag. The plaintiff refused.
He said that they then started requesting the plaintiff to show the bag. He said 'if there's nothing to hide, can you please show the bag'. The plaintiff flat out refused.
He said that Coles staff then called the police to assist further.
At some point he observed the plaintiff ram the trolley into Mr Witold. He said that that was when he started the body camera to see if it would prevent the situation from escalating.
He described the plaintiff as standing right in front of them when she pushed the trolley, and that Mr Witold was standing directly in front of the trolley, while he was a little bit to the left of both his colleague and the trolley.
As soon as the police were called, he said the plaintiff just pushed the trolley and then Mr Witold grabbed the trolley by both his hands and said, 'She can't do that to me'.
At no stage, did he or his partner stop the plaintiff from leaving the store. He explained that it was a 'hands off policy' and they were not allowed to and did not try and take the bag from her. He did not ever see her fall.

Marzec Jack Witold

Mr Witold said he was a security guard working with and for Mr Sharma. Mr Sharma received a call informing him of a problem in Coles.
The two of them went to Coles and the plaintiff came out and was asked by a Coles staff member to show her bag, but she refused.
He did not recall who first said to call the police, and he did not know for how long, but he knew that there was a period of time when nobody called.
He said that he said, 'We have a job to do, we have to leave so call the police'. He was not sure if he said that aloud or if that was what he was thinking, but in any event, he says that when the police were called by Coles staff.
He said he was standing on the front and he pointed out the plaintiff who was proximate to the trolley.
He said, 'I believe she was a little upset and she tried to ram me with the trolley straight to my belly'. He said it struck his hands which were covering his belly at the time, to protect himself. He was hit very hard with the trolley.
He said to her, 'Sorry, but you assault me now and I should call the police because of the assault'. He went on to say, 'But, you know, I give up'.
He then turned to Mr Sharma and told him they should leave.
Mr Witold noted that the plaintiff had other ways to leave the store than from where they were. He further said that he never stopped her leaving by words or actions, and at no time did he see the plaintiff fall or lose her balance.

Body camera footage

The body worn camera disc shows footage and audio of a conversation that took place between the plaintiff, Mr Sharma and Mr Witold at a critical time in relation to the First Occasion. The only people who spoke on the footage were Mr Sharma, Mr Witold and the plaintiff.
I find that the person who was speaking but could not be seen was Mr Sharma. Mr Sharma had a distinctive accent and that precise accent was heard in this court.
At one point in the footage Mr Witold said to the plaintiff, 'Don't push me, you know that's obstruction of justice'. There was no reply by the plaintiff.
Further on, Mr Sharma said, 'The police are on its way and you know it's up to you, you won't be allowed back into the stores, to the Coles, you will be refused'. She was then asked, 'Do you want that to happen', to which she replied, 'I prefer Woolworths anyway'.
A little later on and toward the end of the footage, Mr Sharma says, 'This behaviour is going to be on the CCTV, pushing, and all that kind of stuff, you know what I mean'. The plaintiff did not suggest this comment was wrong, she did not query what was meant, nor did she at any point in time, either then or at all on the footage, assert that she had been pushed.
I note that the last comment made by her on the footage before it ends is the following, 'No, I'm going to wait for the police. It'll be fun, I'm enjoying this'.

Missing footage

The plaintiff asserts that other video footage exists relating to the First Occasion that she has been shown by the defendants' instructors and at a pre-trial conference. Implicit in her assertion is that its mysterious disappearance, or more precisely the non‑appearance of such video material at trial is in some way sinister and involves misconduct by the defendants or its lawyers.
There is no evidence to support these assertions and indeed the covert footage that does exist fits precisely with the version of events given by the defendants' witnesses.
Further, having regard to the findings, I will make shortly regarding the credibility of the plaintiff, I reject this contention entirely.

Credibility findings

I find that the plaintiff is not a credible witness. She is neither honest nor reliable.
Her account was inconsistent. It was directly contradicted by the body camera footage. Despite being given many opportunities to watch it during the course of the trial, the plaintiff continued to dispute its contents and held firm to her clearly mistaken (or dishonest) recollection. This aspect of her evidence was truly bizarre.
Mr Sharma was a man of distinctive appearance and with a clear accent. That accent was heard in court and on the footage and yet the plaintiff continued to assert that it was not Mr Sharma doing the majority of the speaking on the footage. This was a feature of the plaintiff's account that caused to be raised a real question about her reliability as a witness independent of her honesty.
The fact that the plaintiff asserted she suffered significant physical and mental consequences from what happened, according to her, on the First Occasion is utterly irreconcilable with her decision to continue to go to the Coles supermarket in question, including during a period she was banned from doing so.
Her refusal to acknowledge the availability and feasibility of attending other Coles supermarkets or other supermarkets such as Woolworths, Aldi and IGA damaged her credibility. This is particularly so in circumstances where she lived a very long way from the Coles supermarket in question.
The items she was purchasing were not products unique to Coles and her explanation that she preferred the brands available in Coles did not remotely explain why she would continue to attend that particular Coles supermarket if she had in fact suffered what she claims to have.
The body camera footage completely contradicts her version of the events of the First Occasion. This also then bears on her credibility in relation to the Second Occasion given it impacts upon my assessment overall.
The reference on the footage regarding the pushing is notable. Mr Witold says to her 'Don't push me, you know that's obstruction of justice'. The plaintiff does not reply. Later Mr Sharma again refers to the pushing and the plaintiff replies without denying this assertion.
While the words spoken by the guards do not of themselves prove that the plaintiff pushed Mr Witold with the trolley it is nonetheless relevant to my assessment of the plaintiff's credibility. If the events had occurred as the plaintiff said, it is implausible she would fail to correct the allegation made against her and fail to make any mention of the fact she had been pushed.
Her suggestion that the body worn footage was filmed before she was pushed is inconsistent with the sequence of events narrated by her and what is shown on the footage.
She does not appear injured nor distressed in any way and she does not suggest she has wet herself. By contrast she appears confident, robust, keen to lecture others on the law and deriving pleasure from the circumstances in which she had an opportunity to assert her rights.
I reject the plaintiff's assertion that when she said on the body worn footage that she was looking forward to the police coming, it was sarcastic. This comment was in fact consistent with her demeanour during the footage.
I reject the plaintiff's evidence that she wet herself during this incident in the manner and circumstances described. This assertion is inconsistent with the body worn footage, the evidence of Ms Robinson which I accept as to the lack of any finding of wetness on the floor.
Further, it appears to be inconsistent with the balance of her evidence that she had wet herself so badly that it soaked her underwear and her dress and yet she spent half an hour at Flight Centre and otherwise remained at the shopping centre for a time. She then apparently went on and attended to other tasks without at any point in time seeking to change her clothing.

Findings in relation to the defendants' witnesses

Each of the witnesses called by the defendants gave their evidence in a simple and straightforward manner without embellishment or argument.
They were calm and polite and behaved in court in a manner that was consistent with their behaviour on the footage.
Each of their accounts were consistent with each other and with the body worn footage.
I accept the evidence of each of their witnesses in its entirety.

Law in relation to battery and assault

The tort of battery is committed by intentionally bringing about a harmful or offensive contact with another person's body. The plaintiff must prove an intentional invasion of the plaintiff's personal integrity.
It is not necessary that there be an actual and immediate physical contact with the claimant such that it is sufficient to pour water over a person or pull a chair from under the claimant causing them to be pulled to the ground. However, the plaintiff must prove that a positive and affirmative act was done.
Such an act must be offensive in that it was likely to cause injury or affront: see Cunningham v Traynor [2016] WADC 168 citing Carter v Walker [2010] VSCA 340.
In this case, the plaintiff is the only witness to the alleged act comprising the battery. I find the plaintiff is not a credible witness and reject her account that Mr Witold intentionally pushed the trolley into the body of the plaintiff. Although I do not need to, I find on the evidence that the plaintiff deliberately pushed the trolley at Mr Witold.
Accordingly, the plaintiff's claim for battery is not made out.

False imprisonment

A claim of this type requires proof by the plaintiff of an intentional total restraint of her liberties on each of the two occasions in question. Such a restraint must be proved to have occurred in circumstances where there was no justification for so doing.
As set out in Fleming's The Law of Torts (10^th ed, 1998) at 2.80:
The action for false imprisonment protects the interest in freedom from physical constraint and coercion against the wrong of intentionally and without lawful justification subjecting to another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is.
Physical action is not necessarily required. False imprisonment can occur when the submission to the control of another is procured by threat or force or assertion of legal authority such as when a store detective without actually laying hands on the plaintiff or formally arresting the plaintiff gives a plaintiff to understand that she must submit or else be compelled: see Watson v Marshall (1971) 124 CLR 621 and Symes v Mahon [1922] SASR 447.
The restraint must have occurred against the plaintiff's will so that voluntary compliance may prevent what would otherwise potentially amount to the tort of false imprisonment: see Alderson v Booth [1969] 2 QB 216. On the other hand, one will have regard to whether obedience by the plaintiff in order to avoid public humiliation can be, in some circumstances, treated as an involuntary submission to an implied threat of force: see Myers Stores Ltd v Soo [1991] 2 VR 597.
The restraint must be total. A partial obstruction of the freedom to go where one pleases does not constitute imprisonment, although it might support such an action.
It is not actionable as trespass, of which false imprisonment is a subset, to obstruct the plaintiff's passage in one direction only or to prevent the plaintiff leaving a confined area through a particular exit if escape by another route is feasible and known to the plaintiff: see Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, 387.
Actual force or direct physical contact is not required provided that there is proof of a constraint upon a person's will so great as to induce the plaintiff to submit.
False imprisonment does not lie unless the defendant directly and intentionally caused the plaintiff's bodily restraint. It is not, however, for the plaintiff to prove that the defendant intended to restrain the plaintiff unlawfully. That is, if there was an intentional restraint but legal authority later turns out to suggest that such restraint was unlawful, it is irrelevant that the defendant did not know or could not know that such a lawful basis for restraint was lacking: see Governor of Brockhill Prison, Ex parte Evans (No 2) [2001] 2 AC 19.

FINDINGS

First Occasion: battery by second defendant

The plaintiff is the only witness regarding the alleged battery.
I reject her account of events in this regard for the reasons addressed above.
I find that at no time was the plaintiff the recipient, directly or indirectly, of any harmful or offensive contact by Mr Witold nor from any other security guard.
In short, I find the plaintiff was not struck with the trolley by Mr Witold nor by any other person.
Accordingly, her claim for battery is dismissed.

First Occasion: false imprisonment by first and second defendant

I do not accept the plaintiff's account of events for the reasons set out above.
The evidence that I do accept does not disclose any restraint nor imprisonment by either of the defendants of the plaintiff.
The plaintiff has failed to satisfy me to the requisite standard that there was any restraint of her liberties, let alone a total restraint.
Even had I accepted the plaintiff's account I would still have found that the plaintiff has failed to prove she was falsely imprisoned on this occasion.
Any restraint upon a person's liberty to come and go must be against their will. As a matter of law, depending on the circumstances, such restraint can involve words only, or actions only, or both.
This does not include a person choosing to stay for their own personal reasons. As is clear from the authorities, such restraint must be against the will of the person being restrained. Even on the plaintiff's account there were many ways in which she was able to physically move and leave. Further, she testified that she chose to stay even after being specifically informed she could leave.
The words by Amy‑Lee amounted to no more than a statement of the obvious, namely you cannot leave with one of Coles newspapers without paying for it.
No person applied any force to the plaintiff to prevent her from leaving. Nothing more was said to suggest she was compelled to stay.
Even if there were three people in her way for one of the methods of exit, there was nothing on her account that was said or done by these three people to prevent her from leaving.
The plaintiff under cross‑examination confirmed that she did not query why they were standing there nor ask them to move nor in any other way explore whether they were simply watching the events unfold.
Her subjective reasons for staying included that she wanted to stay and get her receipt and prove she did not take the paper. The very fact that she chose to stay on each occasion of itself tends to suggest that she was not being restrained against her will. To the contrary she was choosing to wait until she had a receipt. The exercise of a free choice in this regard sits starkly in contrast to the notion of an unlawful imprisonment or restraint.
The law also requires that there be an intentional restraint and accordingly the inadvertent blocking of the plaintiff's way if that is what occurred, is not sufficient. In any event there were multiple checkouts to exit by and Coles had a long open shopfront looking into the main shopping centre.
The security guards at no time told the plaintiff she could not leave. In fact, they told her she could leave and at no point did they do anything to stop her from leaving.
The plaintiff's claim for false imprisonment against both of the defendants is therefore dismissed.

Second occasion

For the reasons expressed above and having rejected the plaintiff's version of events, I find the plaintiff has failed to prove that she was falsely imprisoned on this occasion by the first defendant.
There is no evidence at all, apart from the testimony of the plaintiff, that she attended the Coles supermarket in Wanneroo on this occasion. Given my adverse findings as to her lack of credibility I would dismiss the case on this basis.
Even if however, I was to accept that she did attend, having regard to the findings I make in relation to the First Occasion and her credibility overall, I do not accept her account of the events that took place.
Further, even if I did accept her version, I would still find that she was not unlawfully imprisoned on this occasion.
This is for the same reasons as those relating to the First Occasion. She had alternative means of exit, she was not told she could not leave and the alleged blocking of one possible exit is not sufficient.
On this occasion, she also said that she wanted to stay until she had her receipt. This again suggests she was choosing to stay rather than be restrained by anyone.
Her claim is dismissed.

Orders

The plaintiff's claim against the first and second defendants is dismissed.
The plaintiff pay the costs of the first and second defendants to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Black
14 NOVEMBER 2023