Retailer negligent after grandmother injured in store

By Kate Tilley

The NSW Appeal Court has upheld a finding that a major retailer was liable for injuries to a customer who had a large box containing a mountain bike fall on her.

Justice Richard McHugh, with whom Justice Jeremy Kirk and Acting Justice John Griffiths agreed, rejected an appeal by Kmart against District Court Judge Judith Gibson’s liability ruling.

Rita Marmara was injured in the Kmart store in Woy Woy after a mountain bike fell from another customer’s standard-sized shopping trolley.

Kmart’s appeal raised four issues:

Whether DCJ Gibson erred in admitting occupational health and safety expert Frank Jordan’s report into evidence
Whether she erred in finding Kmart had not implemented a system to help customers with large or heavy purchases
Whether DCJ Gibson erred in finding Kmart breached its duty of care to Ms Marmara, and
Whether she erred in finding Kmart’s negligence caused Ms Marmara to suffer injury, loss and damage.

Justice McHugh found the opinions expressed in Mr Jordan’s report were based on specialised knowledge. “That an opinion is based in part on a process of reasoning that involves common or ordinary knowledge is not a bar to admissibility.”

He said DCJ Gibson did not find there was no “system” in place at all. She accepted Kmart’s evidence there was an existing, non-mandatory procedure whereby customers could ask to collect items at the loading dock.

System not mandatory

He said the risk of physical injury from heavy, oversized items tipping or falling from customers’ shopping trolleys was obvious. Kmart’s “system” that required customers to initiate collection at the loading dock, which was not drawn to their attention by signage and was not mandatory, was an insufficient precaution against the risk of harm.

On 29 September 2018, Ms Marmara and three family members were in the self-service checkout. The terminals were in a U-shape, so customers coming through the main entry to the checkout could use a terminal on either side, so their backs were turned to customers on the opposite side.

CCTV showed two adult customers transporting two boxes containing mountain bikes in a trolley. The trolley toppled over, either because it was unstable or one of the customers bumped it, and Ms Marmara was hit below her right shoulder from behind. She gave evidence that she was unaware of the other customers and had been talking to her granddaughter at the time.

Under s5B of the NSW Civil Liability Act, a risk must be foreseeable, not insignificant, and something against which a reasonable person would have taken precautions.

Ms Marama’s legal counsel argued flatbed trolleys would have been a safer option, or collection of large, bulky, heavy items from the dock instead of in-store. Customers should have been supervised to avoid the risk of harm.

Mr Jordan’s report said “a safe system of work … would have included, but not necessarily be limited to”:

Alternate means for customers to select and pay for large bulky items without having to personally take items to the checkouts
Customers taking tickets to checkouts to pay for large bulky items and then collecting them at the dock
Customers scanning the product barcode, using that to pay, then collecting at the dock
Having staff take bulky items to the checkouts.

Mr Jordan suggested preparing a “safe work instruction” that included:

Prohibiting customers from using standard shopping trolleys to transport large bulky items through the store and/or to checkouts
Instructing staff to approach customers using standard trolleys to transport large bulky items and recommend alternate means of paying for and collecting the item
Having staff available to assist customers to load large bulky items onto trolleys
Having staff check large bulky items are properly secured on trolleys before items are transported through the store
Having staff accompany customers to the checkouts and/or until they have exited the store to assist with securing/stabilising the load on the trolley.

Mr Jordan said a “responsible person in [Kmart’s] position would have, or would reasonably be expected to have, ensured all staff were trained in a system that addressed all the above basic requirements”.

Serious harm risk high

DCJ Gibson found the likelihood of serious harm was high and Justice McHugh agreed.

DCJ Gibson said although Ms Marmara was struck only by the larger box, the impact of the blow was considerable. She was holding her granddaughter’s hand at the time and the child could have been hit by one or both boxes.

“As the CCTV shows, Kmart customers include a wide range of vulnerable customers such as children, the elderly and persons who appear to have mobility problems.”

Justice McHugh said DCJ Gibson was right to reject Kmart’s submission that Mr Jordan’s whole report should not be admitted into evidence. His views on what occurred at other retail stores were accepted at trial, so it was too late to object to them in the Appeal Court.

Mr Jordan’s letter of instruction required him to give evidence on what occurred at competitors’ stores, which he did by phoning Aldi, Target and Big W representatives.

Justice McHugh said Kmart’s “system” of customers asking for bulky items to be taken to a loading dock was an insufficient precaution against the risk of harm and was “not obviously directed to avoiding that risk of harm”.

“It depended on individual customers electing to take the initiative to ask for their purchases to be taken to the loading dock. It was directed to those customers’ safety or convenience. The fact the procedure was non-mandatory meant there would be cases in which it was not followed.”

He said the procedure did not prevent the risk of harm to other customers if the purchaser was unaware the procedure existed; “could not find a member of staff (in what was, after all, a self-service environment) to assist; lost patience waiting for assistance; mistakenly thought they could safely control a standard trolley to transport [large items] to the checkout; or for any other reason chose not to use the procedure”.

While DCJ Gibson did not expressly refer to prohibiting customers from using standard shopping trolleys to transport heavy, oversized items unsupervised, she did find that a reasonable person in Kmart’s position would have implemented a system that included:

staff training
signage, and
either requiring customers to use flatbed trolleys to transport heavy, oversized items through the store or to collect such items at the loading dock.

Justice McHugh said if Kmart had implemented a safer system, on the balance of probabilities, the two customers would not have taken the boxed mountain bikes into the self-checkout area and Ms Marmara would not have been injured.

Kmart Australia Ltd v Marmara [2024] NSWCA 249 (21 Oct 2024)