A Sydney artist has been allowed to keep a $50,000 defamation pay-out, after he was wrongly accused of stealing raw prawns in a north shore Coles supermarket.
Philip Clarke, 50, successfully sued Coles after he alleged the store manager at the Lane Cove store came at him “like a pit bull” and wrongly accused him of eating the prawns so he did not have to pay for them.
District Court Judge Leonard Levy found Mr Clarke had been defamed because some of the shoppers may have been neighbours and the accusation could have spread along the “grapevine”.
Coles Supermarkets appealed the decision on several grounds, including that the trial judge erred in deciding the words of the store manager were “published”, describing that finding as “glaringly improbable”.
On Friday, the Court of Appeal upheld Judge Levy’s decision, finding that while the manager, Shant Tatosian, denied accusing Mr Clarke of theft, he agreed he said the words: “You have eaten the prawns and you haven’t paid for them.”
“The acceptance by him of the words set out … is sufficient acceptance of a material and defamatory part of the words alleged by [Mr Clarke],” Justice Carolyn Simpson said in the appeal court decision, with agreement from Justice Fabian Gleeson and acting Justice Ronald Sackville.
The trial heard Mr Clarke ordered about 500 grams of raw green prawns from the delicatessen on September 4, 2009, before he realised there would not be enough for a Father’s Day celebration.
He opened the package and returned to the counter to request it be topped up to one kilogram.
Mr Tatosian, along with some other staff members, confronted Mr Clarke and accused him of eating some of the prawns.
A heated exchange followed in which Mr Tatosian claimed Mr Clarke had eaten some prawns, dropping the shells on the floor and secreting the wrapper in the freezer section.
Mr Clarke said he tried to point to his package of prawns sitting on the freezer counter.
He told the District Court the incident left him feeling “under siege” from Coles employees and “tut-tutting” onlookers.
He said it upset him “to the point of terrible disillusionment, depression, feeling that this was the way Sydney had become now”.
Mr Clarke alleged Mr Tatosian said things like “I will keep you here until I see those prawns”, “You ate the rest of those prawns in my store and that is stealing” and “You are not free to go until you admit that you have stolen from Coles.”
Mr Tatosian denied saying those words.
However, he conceded he said things like “Have you forgotten those prawns?”, “Sir, I’ve seen you eating those prawns”, evidence the appeal court found had established Mr Clarke’s case.
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