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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McCormack v. Olsthoorn [2004] IEHC 431 (21 December 2004)
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Cite as: [2004] IEHC 431
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[2004] 1EHC 431
2004 31 CA
THE HIGH COURT ON CIRCUIT
South Western Circuit
County of Limerick
1032/02
Between:
JOHN McCORMACK
Plaintiff/Respondent
and
ADRIAN OLSTHOORN
Defendant/Appellant
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2004.
This case relates to a most unfortunate incident which occurred between the plaintiff and the defendant in April, 2002. The incident is particularly unfortunate because I am quite satisfied that both the plaintiff and the defendant are very reputable gentlemen. The plaintiff, who is now in his late 70s, had a distinguished 40 year career in An Garda Síochána up to his retirement in 1988. He was a Superintendent when he retired, and had the honour of being elected President of the International Police Association. He is a person of the highest reputation. The defendant is a horticulturist, which business he carries on in partnership with his wife. For upwards of 20 years he has had a stall at the Milk Market in Limerick selling horticultural produce, 70% of which is of his own cultivation. I may also say that I am satisfied that each of the parties did his best to give a truthful account in evidence before me.
Undisputed facts.
On Saturday 13th April, 2002 the defendant, as usual, had a stall open for business at the Milk Market, Limerick. He was selling produce of various kinds and some potted plants. The plaintiff attended at the Milk Market. He, too, is a man of horticultural interests and grows plants in a glass house. He wanted to buy two tomato plants of a variety called Garden Pearl. He found one such plant in a shop or stall other than the defendant's, bought it and took it away. It was a small plant in a plastic pot. It was not packaged. The pot itself was coloured, with some stickers.
The plaintiff went to other shops and stalls looking for the other plant he required. After some time he approached the defendant's premises. There did not appear to be anyone in charge. He looked at plants, picked some up and put them down again on discovering that they were not of the variety he wanted. All this time he had the plant he had purchased elsewhere in his hand. He left the defendant's premises. When he was about 25 yards away he was accosted by the defendant. There is considerable dispute as to precisely what happened at this time. Either at this scene or very shortly afterwards in the defendant's premises, the defendant realised that the potted plant the plaintiff was carrying was not from his premises. The plaintiff asked for the defendant's name and was given his business card with a phone number on it. The plaintiff then went home. Later the same afternoon he telephoned the defendant. Two days later he wrote a letter to the defendant making certain allegations. There was no reaction to this letter and solicitors became involved. The defendant does not appear to have responded in any way until he received a registered letter dated the 27th June enclosing the Civil Bill. The defendant's solicitors then wrote to the plaintiff's representatives by letter of the 9th July, 2002 which letter contains a full acknowledgment of the plaintiff's good character and of the fact that the defendant had made a mistake on the 13th April, 2002.
We must now turn to the disputes which lie at the centre of this case.
The plaintiff's account.
The plaintiff says that when he was about 25 yards away from the defendant's premises he heard a noise behind him as of somebody pushing through a crowd. A man he now knows to be the defendant grabbed him by the right arm and said loudly:
"You stole that plant from my shop".
He said that the defendant had a very tight grip on his arm and was propelling him back towards the shop. The plaintiff says he protested and the defendant said again "You've stolen that plant". The plaintiff said that this occurred at a point when there were "dozens of people around. We were right between people. Some stood back to look." He said that he himself was upset. He asked the defendant to let him go, and not to drag him through the street. However, when they were about 5 or 6 yards from the defendant's shop he released him. Once they were in the shop, the plaintiff says, the defendant demanded that he show him the plant he was carrying. Immediately the defendant saw it he said:
"I'm sorry, I don't stock that plant."
He then made a telephone call.
The plaintiff says he was very upset annoyed and embarrassed. He felt that he had been seen in a most suspicious and undignified position by many people. He was in the habit of frequenting the Milk Market every week and knew a lot of people there to see. By reason of his occupation he felt he was well known in Limerick generally. Later in the day, he phoned the number on the business card he had got and asked to speak to the owner. The defendant told him he was the owner. He wrote a letter of the 15th May, 2002, but got no reply. When the defendant's solicitors eventually replied he felt that their letter was adding insult to injury. He said he was particularly annoyed at being grabbed by the arm and pulled back towards the shop. He said he had never gone back to the market and that it upset him considerably even to think of the episode.
The plaintiff said that he was accosted by the defendant some time shortly after half past twelve. He was certain of this: when everything had finished he went to his car and drove home for his lunch at 1.15pm.
The cross-examination of the plaintiff began with an unambiguous statement by the defendant's counsel that the plaintiff was a man of the highest character and that the defendant had been mistaken in what he did. The defendant's version was then put: it was as follows.
The Defendant's account.
The defendant, Mr. Olsthoorn, said that the incident in question took place rather later than the plaintiff recalled. He said that he usually came down to his stall about 1 o'clock. By that time the market would be emptying and here he came in order to take over from the girl he had working there during the morning. He said that he was inside his premises when he saw a man, who turned out to be the plaintiff, at his display area outside. This man was picking up plants. Then he walked away with a plant. He walked down the street. The defendant followed him, pausing only to secure the till. He tapped him on the shoulder and said:
"Excuse me, Sir, did you take that plant?"
He said that the plaintiff turned around at that and he, the defendant, immediately saw that the plaint the plaintiff was holding was not one of his. His pots were a plain light brown colour: the plaintiff was holding a pot which was coloured, with stickers. He said that the plaintiff became upset, irate and vociferous. He said to him (the defendant) "How dare you assault me and defame my character." Further questioned, however, the defendant said that the plaintiff had not actually used those words but had perhaps accused him of "ruining my good name" or words to that effect.
The defendant strenuously denied any physical contact with the plaintiff other than tapping him on the shoulder. He said that he had realised his mistake instantly and had no reason to force the plaintiff to come back to his shop. On the contrary, it was the plaintiff who insisted on coming back to the shop. The plaintiff told him "You will hear more about this." He asked him for his name, and he gave him the business card. Later in the afternoon he phoned, and there was no dispute about the contents of the call. Describing his own reactions to the episode the defendant said "I was in a state of shock."
The defendant was asked in considerable detail about what precisely he had seen when he was inside his shop. He said:
"I saw a plant in his hand. He was taking ones up. I saw him picking up a plant. I saw him put his hand around it. I was three meters away. I'd say it was in his right hand."
At that point he was asked in cross-examination how was it he did not realise the plant was not his, in view of his distinctive pots. He said:
"He picked it up by the rim."
and then a little later:
"I don't know if he picked the pot up by the rim or had his hand around it. I did not see the pot."
He said, however, that he thought he had seen the plaintiff going off with a plant he had picked up from his, the defendant's, display stand. He said:
"I was fully sure that he had taken the plant."
The defendant said that the market was emptying out at the time and there was only one or two people around when he accosted the plaintiff. He said "I only tipped him on the shoulder. I was not really angry." He said he had been robbed about six weeks previously. After he realised his error he said:
"I kept apologising. He (the plaintiff) insisted on going back to the shop. I had immediately seen that the plant wasn't mine."
Perhaps importantly, the defendant stated emphatically that the plaintiff got angry and was distressed. He said that he had no idea what had happened to make the plaintiff angry but he was angry and very loud indeed.
It was put to the defendant that the letter the plaintiff had himself written two days later was consistent with his present complaints. He replied "I found the letter incredible. I though it would go away."
Resolution of conflicts.
As I have already said, I believe that both the plaintiff and the defendant were honest witnesses. However, there is a measure of conflict between them which must be resolved on the balance of probabilities. On the defendant's account it is clear that no actionable wrong has been committed: what he said was not defamatory and he did not have physical contact with the plaintiff at all except to tap him on the shoulder, which is quite legitimate. On the plaintiff's account, however, he was in terms accused of theft while standing in a public place and was then forcibly propelled back towards the shop.
In all the circumstances, I believe that something more than the defendant recalls must have occurred. It is undisputed that the plaintiff was both angry and distressed shortly after the encounter between the parties started. There is nothing on the defendant's account to explain this. On the defendant's own account the plaintiff immediately complained of being assaulted and having his good name ruined. This was said at a time when there had been little if any interval for invention or afterthought. The plaintiff's account is consistent with his letter of the 15th April. It is noteworthy that this letter was not replied to, nor its contents denied. Undoubtedly this was in part because the defendant hoped the whole thing would go away. A consequence of this, however, is that his denials would be more impressive if they had been made in writing or through his solicitor immediately after the event. The defendant himself said that he was in "a state of shock" after the event, which may have interfered with the clarity of his recollection. He volunteered that he had been robbed about six weeks previously and though he says he was "not really angry" when he approached the plaintiff, that phrase in itself implies that he was angry in some degree. Importantly, one of the complaints that the plaintiff made in his letter is that the defendant had "inferred" by which I think he meant implied, that "I might be responsible for stealing several of your plants on a previous occasion." It does not appear to me that the plaintiff could have known of any loss by the defendant on a previous occasion unless the defendant had told him so. It follows from this that the defendant did say to the plaintiff more than he now recalls.
I believe that the defendant said something to the general effect the plaintiff alleges. I do not accept that he merely used the somewhat artificial form of words he himself suggests, though I believe he has convinced himself that that is all that occurred. I believe there must have been a greater measure of physical contact between the parties that the defendant now recalls, in order to explain the plaintiff's immediate complaint of assault.
Submissions.
There were substantial submissions by Mr. O'Shea for the plaintiff and Mr. Clein for the defendant. It must be recalled that the action was for assault, battery, false imprisonment and defamation. Mr. Clein referred to the tenth edition of Gatley on Libel and Slander and in particular paragraphs 14.47 and 14.75. He submitted that the occasion was one of qualified privilege, citing Gatley as follows:
"Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused."
He also relied on the following extracts from paragraph 14.76:
"In cases of slander, where the defendant spoke the words complained of with honesty of purpose to a person or persons who had some legitimate interest, or some duty in the matter, the mere fact that one or even several (legally) uninterested persons happen to be present and heard what was said will not necessarily prevent the occasion from being a privileged occasion. The business of life could not well be carried on if such restraints were imposed on these communications and if they were never protected unless the occasion was strictly private. The fact, however, that some other persons or persons who had no common interest or duty in the matter were present is a circumstance which may be left to the jury, who are to determine whether the defendant was acting bona fide in speaking the words or was influenced by improper motives."
It is not claimed in the present case that the defendant acted maliciously, that is with an improper motive. It appeared to me to be accepted that he bona fide but mistakenly believed that the plaintiff had taken one of his plants. Nor was it disputed that he had a legal interest in protecting his property. But, Mr. O'Shea submitted, the plaintiff's right to his reputation was a superior right. In any event, he said, the privilege which the defendant might invoke extended only to enquiries, not to express statement or accusations.
Decisions on legal issues.
I believe that the occasion at the Milk Market was one of qualified privilege. The plaintiff had a legal right to protect his property and in doing so to "tax" an individual whom he suspected of a theft. Situations such as that which arose between these parties in the Milk Market arise quickly and without notice. For this reason I think it would be utterly unreasonable to require of the defendant any fine judgement or considered selection of the words which he used. Accordingly I do not consider that the direct statement which he made deprived him of privilege. Furthermore I do not consider that the presence of bystanders in itself had that effect, because, as Gatley observes:
"The law has been fairly liberal in allowing charges to be made in the presence of others."
I have no doubt that this, too, is because of the hurried circumstances in which such accusations tend to be made. In one of the classic cases, Toogood v. Spyring [1834] 1 Cr M & R 181, the allegation was made in the presence of a third party two days after the event, and that did not displace the privilege. I do not need to consider whether that decision should now be followed.
In an Irish case, Coleman v. Kearns Ltd. [1946] IJR 5, a butcher's accusation that a woman had stolen some bacon from a shop was held not to be privileged because it was made with the desire to recover the property, instead of a desire to bring a thief to justice. I cannot regard that decision as correct. There is no doubt that something said with a view to bringing a thief to justice is privileged, but it is not the only heading of privilege that arises in such circumstances. Privilege exists where a legally recognised duty or interest in speaking exists: in my view the legitimate desire to recover one's property is just as much a legitimate interest as the desire to bring a thief to justice. Very often these desires will co-exist. Realistically, where there is a sudden theft or suspected theft, the owner or his agent will not pause to analyse his own motives in detail but will act immediately out of an instinctive and proper desire to stop a theft. I agree with what is said on this topic in McDonald "Irish Law of Defamation" at page 149.
Equally, I have to disagree with the dictum in the judgment in Coleman v. Kearns to the effect that a person seeking to avail of the privilege "must have reasonable grounds or evidence before so acting. He must not immediately jump to a rash conclusion." I do not believe that the requirement of "reasonable grounds" is a correct statement of the law. Privilege is lost by malice, excessively wide publication or one of the other established causes. It is not lost merely because the belief turns out to be erroneous, or because the defendant was hasty. The presence or absence of reasonable grounds for the defendant's belief may be very relevant in a case where malice (that is, some improper motive) is pleaded but there is no such plea here, and on the facts, there could not have been. Having seen and heard the parties I am in event quite satisfied of Mr. Olsthoorn's bona fides and I believe that he acted as he did on the spur of the moment (delay would obviously have been fatal to his chances of recovering the plant he believed stolen) and after a most unfortunately coincidental sighting of what he believed to be a theft.
I will therefore dismiss the plaintiff's claim in defamation. In doing so I would observe that there must of necessity be an element of hardship where one honest man due to an unfortunate coincidence of circumstances bona fide accuses another honest man of theft. It is a nice question as to whether the reputation of the latter should not predominate over the privilege of the former, but I do not think that it does. The law must make realistic allowances for the absolutely unheralded manner in which these circumstances arise, the lack of time to formulate a polite form of words to use and the need for haste generally. I am quite satisfied that if there had been time to think Mr. Olsthoorn would have said something along the lines he now thinks he said. The fact that he is under a misapprehension in this regard does not however deprive him of privilege in respect of the words I am satisfied were spoken.
In relation to the balance of the claims, I accept that the plaintiff was, albeit very briefly, technically assaulted and falsely imprisoned. The latter simply means that he was (briefly) deprived of his liberty to go where he wanted. I am satisfied that there was no real violence in the assault which I believe consisted of grabbing the plaintiff by the arm. I believe that the episode lasted, if only by five or ten seconds, longer than the defendant now recalls and that there was some element of propulsion towards the shop. Any level of force whatever was quite unnecessary in respect of a man who, even if his utter respectability was unknown to the defendant, cannot have presented as being a risk of violence or of escape. No physical harm was done but the plaintiff was technically assaulted, briefly deprived of his liberty and as a result of this was very understandably upset distressed and shocked. This is a most unfortunate thing to happen to anyone, and particularly to a man of advancing years. But it was by no means a very grave episode. I am satisfied that the defendant resiled from his position within a very short time and I happy to note the very ample apology his solicitor made in correspondence. I must also consider that the defendant contradicted the plaintiff in certain respects where I am satisfied the plaintiff is both truthful and accurate and this must have added to his distress.
In all the circumstances I will make an award to the plaintiff in respect of assault and false imprisonment of €3,500.00.