In a recent case, Kmart has been held liable for injuries sustained by a customer in its Woy Woy store, after a mountain bike in a heavy, oversized box fell from another customer’s shopping trolley, injuring Ms Rita Marmara. The New South Wales Court of Appeal upheld the original District Court ruling that found Kmart liable for breaching its duty of care.
Background
Ms. Marmara was injured when a large box containing a mountain bike fell from another customer’s standard-size shopping trolley. She filed a negligence claim against Kmart, alleging that the store failed to implement a safe system for handling oversized and heavy items. Ms. Marmara argued that a reasonable person in Kmart’s position would have taken measures to mitigate the risk, such as mandating the collection of such items from the loading dock.
The District Court, presided over by Judge Gibson, found Kmart had breached its duty of care, resulting in Ms. Marmara’s injury. Kmart appealed the decision, raising four key legal issues.
Key Issues on Appeal
- Admissibility of Expert Evidence
Kmart challenged the admissibility of the report from an occupational health and safety expert, Mr. Jordan. The Court of Appeal, however, dismissed this argument, holding that Mr. Jordan’s report was based on specialised knowledge, as required by section 79 of the Evidence Act 1995 (NSW). - System for Heavy Items
Kmart argued that the trial judge erred in finding that the store lacked a system to help customers with heavy or oversized purchases. The Court clarified that while Kmart had an existing procedure allowing customers to request assistance at the loading dock, it was not mandatory, nor was it actively communicated to customers. - Breach of Duty of Care
At the heart of the appeal was whether Kmart breached its duty of care under section 5B of the Civil Liability Act 2002 (NSW). The Court ruled that Kmart had failed to implement sufficient precautions to prevent the risk of harm. The store’s optional system of assistance for heavy items was inadequate, given the likelihood of harm from customers transporting large, heavy boxes using standard shopping trolleys. - Causation and Injury
The Court also upheld the finding that Kmart’s negligence directly caused Ms. Marmara’s injury. The evidence supported the conclusion that if Kmart had required oversized items to be collected from the loading dock, the accident—and Ms. Marmara’s injury—would not have occurred.
Legal Implications
The Court’s decision reinforces the principle that businesses must take reasonable steps to protect customers from foreseeable risks. In this case, Kmart’s failure to implement a mandatory system for handling heavy, oversized items in its store contributed to the injury. The ruling highlights that even if a system exists, businesses must ensure that it is both mandatory and well-communicated to effectively manage risks.
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