Mall security detention and search: false imprisonment, assault and vicarious liability
At Accra Mall, a till alarm sounds as Esi leaves a cosmetics shop. A security guard, using the mall's uniform and acting under the mall manager's instructions, asks her to come to a back office. She agrees because he says 'it will only take a minute'. The door is locked from outside; her bag is searched without consent; she is told she cannot leave until the police arrive. The police are called 40 minutes later and arrive after another 20 minutes; they find nothing. Esi misses a domestic flight to Kumasi and her engagement party. The guard says she consented and that the mall has a policy of detaining suspected shoplifters. The mall is owned by Accra Retail Ltd; the guard is employed by a security contractor, but the mall manager directs his daily duties. Esi sues for false imprisonment, assault and battery.
1. Has Esi established false imprisonment? Address total restraint, consent and the limits of any private power to detain.
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False imprisonment
False imprisonment is the intentional or negligent complete restraint of the claimant's liberty without lawful justification. The restraint may be physical or by submission to authority. Esi was told she could not leave, the door was locked, and she was held for about 40 minutes before the police were even called. That is total restraint; there was no reasonable means of escape.
Consent is not made out. She agreed to 'a minute' in the office, not to a locked-room detention and a search. Submission to a security guard's authority is not free consent. The mall's internal policy cannot create a legal power to detain. Under the Criminal Procedure Code, 1960, a private person may arrest someone reasonably suspected of an offence in the vicinity, but must hand the person to the police without unreasonable delay. Even if the alarm gave reasonable suspicion, holding Esi for 40 minutes, searching her, and delaying the call may exceed that power. False imprisonment is likely established.
2. Discuss the assault and battery claims and the vicarious liability of Accra Retail Ltd and the security contractor.
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Assault, battery and vicarious liability
Assault is an intentional act that causes a reasonable apprehension of immediate unlawful force. If the guard moved to search her or blocked her, Esi may have apprehended force. Battery is the intentional application of unlawful force. Searching her bag without consent may be trespass to goods, and any physical touching in the search is battery. The guard's authority does not extend to a non-consensual search.
The guard is employed by a security contractor, but the mall manager directs his daily duties. Vicarious liability usually rests with the general employer, but the mall may be liable if it exercised sufficient control or if the guard was acting as its agent. The detention was carried out to enforce the mall's policy, so it is closely connected with the guard's security duties. Both the contractor and Accra Retail Ltd may be vicariously liable, with contribution between them. The mall's direct liability for an unsafe system of detention is also arguable.
3. What damages should Esi recover, and how should the court treat the missed flight and the missed engagement party?
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Damages
False imprisonment is actionable per se, so Esi need not prove financial loss. She can recover general damages for loss of liberty, distress, humiliation and the indignity of the search. Aggravated damages may be awarded because the detention was high-handed and the guard knew she was co-operative. The missed flight is a foreseeable consequence of the detention; the ticket cost and reasonable expenses are special damages if proved. The missed engagement party is distress and inconvenience, which can be reflected in general damages rather than as a separate economic claim.
Esi must mitigate, but she could not reasonably avoid the detention. The court should avoid double recovery for the same distress. An injunction is not appropriate; damages are the proper remedy. The award should reflect the duration, the locked door, the search and the absence of any apology.