The respondent, Ms Marmara, was injured when a heavy oversized box containing a mountain bike fell on her from another customer’s standard size shopping trolley at a Kmart store in Woy Woy. Ms Mamara was at the self-serve checkout, when the large box toppled onto her from behind, from another shoppers trolley. Ms Marmara brought proceedings in the District Court for damages in negligence against Kmart.
Kmart admitted that it owed Ms Marmara a duty of care. Ms Marmara alleged that a reasonable person in Kmart’s position would have taken precautions to avoid the risk of harm from customers transporting heavy oversized items through the store by putting in place a safe system, including providing a service for customers to pick up such items from the loading bay. The primary judge, Gibson DCJ, found that Kmart had breached its duty and caused Ms Marmara to suffer personal injury. Kmart then appealed.
Kmart lost on appeal. It was noted that they did have a system for customers picking up heavy, oversized items from a leading dock, but this was not mandatory, not drawn to the attention of customers, and also had to be initiated by customers. The court held that Kmart breached the duty of care owed to customers, and that the risk of injury was ‘not insignificant’.
This case serves as a reminder for retailers to provide a safe environment for shoppers. If you have been injured in a shopping centre or other public place, please feel free to contact our friendly lawyers for an obligation free consultation.
*Kmart Australia v Mamara [2024] NSWCA 249
