A High Court judge has dismissed an action for defamation by a Dublin man who alleged he was wrongly accused of stealing a toy duck at a toy store.
David Mongan had alleged a security guard at Smyths Toy Superstores, Belgard Road, Tallaght, had asked him in a loud voice in front of other shoppers on November 27th 2007 : “Where is the duck. I know you have it. I want to see it. Take it out. I’d like to see where the duck is and what have you done with it.”
He alleged this happened in front of other shoppers and he suffered depression after the incident.
Mr Mongan of Owendoher Haven in Ballyboden, Co Dublin brought the case against Smyth’s Toys; Smyth’s Toy’s Holdings; Smyth’s Toys Properties Ltd; and Goldforce Ltd T/a Goldforce Security Management. The defendants denied all the claims against them.
In a ruling yesterday following completion of evidence ion the third day of the case, Mr Justice Eamon De Valera dismissed the action and discharged the jury.
Following an application by Joe McGettigan SC, for the defence, the judge said he was satisfied it had not been proven there was malice in the words alleged to have been spoken to Mr Mongan.
He told the jury he was striking out the case because, in a defamation action, words complained of must not just be spoken but must be spoken maliciously to be a slander.
In his claim, Mr Mongan said he was shopping for a Christmas present for his son William and had been looking at toy ducks when he was approached by a security guard, Chris Kabile.
He claimed Mr Kabile asked him in a loud voice: “Where is the duck. I know you have it. I want to see it. Take it out. I’d like to see where the duck is and what have you done with it.”
Mr Mongan said the duck was in a shopping basket being held by his wife who was in another place in the store.
In his evidence, Mr Kabile said he never accused Mr Mongan of stealing any item from the store but had, on two occasions that day, asked Mr Mongan to stop messing with toys.
After the second occasion, Mr Mongan had replied: “Do you think I am going to rob it?” and demanded to speak to the manager, he said.
After Gardai were called — by Mr Mongan — Mr Kabile said he had apologised to Mr Mongan in order to “end the situation”.