Kmart Australia Limited v Marmara - [2024] NSWCA 249

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kmart Australia Limited v Marmara [2024] NSWCA 249
Hearing dates: 19 September 2024
Date of orders: 21 October 2024
Decision date: 21 October 2024
Before: Kirk JA at [1]
McHugh JA at [2]
Griffiths AJA at [199]
Decision:
Appeal dismissed with costs.

Catchwords:
NEGLIGENCE – Occupier’s liability – precautions reasonably required to be taken by occupier of retail store – where customer injured by heavy oversized box containing mountain bike falling from another customer’s shopping trolley – where no mandatory system preventing use of standard size shopping trolleys for heavy oversized items implemented by occupier – whether reasonable person would have implemented such a system requiring collection at the loading dock – whether lack of such a system was a necessary condition of the occurrence of harm

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E
Evidence Act 1995 (NSW), ss 55, 79

Cases Cited:
Ballina Shire Council v Moore [2023] NSWCA 155
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 [98 ER 969]
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21
ELB Pty Ltd v Lumina BPO Pty Ltd [2021] NSWCA 91
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857; 414 ALR 635
Gordon v Lever [2018] NSWSC 1888
Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Lang v R [2023] HCA 29; (2023) 413 ALR 389
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 457; [2022] HCA 11

Category: Principal judgment
Parties: Kmart Australia Limited (Appellant)
Rita Marmara (Respondent)
Representation:
Counsel:
M Windsor SC with J Hart (Appellant)
R McIlwaine SC with R E Quickenden (Respondent)
Solicitors:
Gilchrist Connell (Appellant)
Brazel Moore Compensation Lawyers (Respondent)

File Number(s): 2024/145001
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

Marmara v Kmart Australia Limited [2024] NSWDC 89

Date of Decision:

26 March 2024

Before:

Gibson DCJ

File Number(s):

2021/00097031

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Ms Rita 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 Marmara brought proceedings in the District Court for damages in negligence against the appellant, 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 appealed to this Court. The appeal raised four issues:

Whether the trial judge erred in admitting into evidence the report of an expert in occupational health and safety, Mr Jordan;
Whether the trial judge found that the appellant had not implemented a system to assist customers with large or heavy purchases, and so erred;
Whether the trial judge erred in finding that the appellant breached its duty of care to the respondent, having regard to s 5B of the Civil Liability Act 2002 (NSW); and
Whether the trial judge erred in finding that the appellant’s negligence caused the respondent to suffer injury, loss, and damage.

The Court (McHugh JA, Kirk JA and Griffiths AJA agreeing) dismissed the appeal, holding:

As to issue (i):

The opinions expressed in Mr Jordan’s report were sufficiently shown to be based on specialised knowledge for the purposes of s 79 of the Evidence Act 1995 (NSW). That an opinion is based in part on a process of reasoning that involves common or ordinary knowledge is not a bar to admissibility: [58]-[76].

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21, applied. Lang v R [2023] HCA 29; (2023) 413 ALR 389; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; ELB Pty Ltd v Lumina BPO Pty Ltd [2021] NSWCA 91, considered. Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29, referred to. Gordon v Lever [2018] NSWSC 1888, distinguished.

As to issue (ii):

The primary judge did not find that there was no “system” in place at all. Her Honour accepted evidence led by Kmart that there was an existing non-mandatory procedure whereby customers could ask to collect items at the loading dock: [88], [89], [92], [94].

As to issue (iii):

The relevant risk of harm for purposes of s 5B was the risk of physical injury by heavy, oversized items such as mountain bikes in boxes tipping or falling from customers’ shopping trolleys: [113], [119]-[123].

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, considered.

The “system” Kmart had in place was the existing procedure for collection at the loading dock, which had to be initiated by customers, was not drawn to their attention, and was not mandatory: [125], [131]. The primary judge did not err in finding that that was not a sufficient precaution against the risk of harm: [136].

As to s 5B(2): There was a substantial probability that if care were not taken customers would continue to use standard size shopping trolleys to transport heavy oversized items and thereby expose others to the risk of harm. The primary judge had implicitly found it was probable that harm would occur, which finding was not challenged. The likely seriousness of the harm was high. Kmart acknowledged that if the existing procedure for collection at the loading dock, which had been used many times, were made mandatory, it would not have been burdensome to take such items to the loading dock. The burden of taking precautions against the risk of harm was not otherwise excessive: [157]-[169].

In the circumstances disclosed by the evidence, a reasonable person in Kmart’s position would have implemented a system at its Woy Woy store that prohibited customers from using standard size shopping trolleys to transport heavy oversized items, and instead required customers to collect such items at the loading dock. A reasonable person would have put up signs informing customers of the system and trained staff appropriately. Kmart’s failure to do so was a breach of its duty of care to the respondent: [170]-[172], [177].

As to issue (iv):

On the hypothesis that Kmart had prohibited customers from using standard size shopping trolleys for transporting heavy oversized items, and instead required customers to collect them from the loading dock, on the balance of probabilities the respondent would not have been injured. Kmart’s negligence was a necessary condition of the occurrence of the harm within the meaning of s 5D(1)(a): [196].

JUDGMENT

KIRK JA: I agree with McHugh JA.
McHUGH JA: The respondent, Ms Rita Marmara, was injured when a large box containing a mountain bike fell on her from behind while she was at the self-checkout section of the Kmart store at Woy Woy on 29 September 2018. The appellant (“Kmart”) was the occupier of that store, had control of the activities conducted at the store and admits that it owed the respondent a duty of care as the occupier. The primary judge, Gibson DCJ, found that Kmart had breached that duty, causing the respondent to suffer personal injury: Marmara v Kmart Australia Limited [2024] NSWDC 89. Her Honour gave judgment for the respondent in the sum of $624,775.60 and ordered that Kmart pay her costs.
Kmart appeals on grounds principally directed to breach and causation. The appeal should be dismissed.

The Incident

The incident resulting in the personal injury was recorded on closed circuit television (“CCTV”) footage. The footage shows a self-checkout area busy with customers. The area was laid out with two rows of self-checkout terminals configured opposite each other.
As the primary judge found:

6 The whole of the incident, and the events immediately before and after it, are both clearly visible on the CCTV.
7 The plaintiff, her son, his wife and their daughter were in the self-checkout area of Kmart Woy Woy at about 12:40 PM where they were taken to a checkout by member of the defendant’s staff, who was one of several employees supervising the self-checkout process for customers paying for and collecting their purchases from this area. This area had checkout terminals displayed in a U-shape, so that customers coming through the main entry to the checkout could use a terminal on either side, which meant that their backs were turned to the customer on the opposite side. The plaintiff’s daughter-in-law commenced checking out their purchases while the plaintiff’s son was holding the trolley. The plaintiff was talking to her granddaughter.

Although the Court should be cautious in drawing inferences from video footage (see, e.g., Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 at [42]-[45]), in this case it is the central evidence of the mechanism of the respondent’s injury. Since senior counsel for Kmart took the Court carefully through the footage leading up to and including the incident, and made certain (largely minor) criticisms of the primary judge’s findings based on it, and as this Court is in as good a position as the primary judge to draw inferences from the footage, it is appropriate that I refer directly to it in describing the events in the two minutes leading up to the incident.
The CCTV footage shows two other adult shoppers (a man and a woman) who were involved in the incident. The man was using what appears to be a standard size shopping trolley to transport two large boxes, one larger than the other. It is common ground that the boxes contained mountain bikes. From the CCTV footage it appears that one end of the smaller of the two boxes was at least partly within the metal frame of the shopping trolley. The other end of the smaller box was pointing at an angle to the ceiling and leaning over the side of the frame of the shopping trolley. It appears from the CCTV footage that the larger of the two boxes was leaning against the smaller box. Only one corner of the larger box appears to have been within the metal frame of the shopping trolley.
While waiting to enter the self-checkout area, the male customer was approached by one of Kmart’s staff. It is not in dispute that this was Ms Megan Loaney, who gave evidence at the trial. Ms Loaney and the male customer appear to have had some conversation; there is no evidence of what if anything was said. The male customer then entered the self-checkout area. As he approached the checkout terminal, the male customer supported the boxes by holding one of the top corners of the large box with his right hand. The top of the box appears from the CCTV footage to have been higher than the customer’s head. The male customer was joined by the female customer at the checkout terminal. For most of the period while he was standing at the terminal, the male customer maintained some physical contact with either the trolley handle or the boxes. At several points, including while using what appears to be a bar code scanner “gun” on the boxes, the male customer appears momentarily not to have been holding the trolley or the boxes.
It appears from the footage that at one point, the male customer lifted his hand from the trolley’s handle. Within about two seconds the trolley, which was parallel to the row of checkout terminals, toppled over on its side in the direction of the other row of terminals where the respondent was standing with her back to the trolley. The larger of the two boxes struck the respondent in the region of her upper body; the point of impact is obscured in the CCTV footage. The respondent gave evidence that she had not been aware of people behind her before she was struck, and that the point of impact was “Just below my shoulder on my right hand side.”
Counsel for Kmart suggested that one of the customers had bumped the trolley, causing it to topple over. The primary judge did not make a finding to that effect and it is not clear from the CCTV footage what happened. For present purposes it makes no difference. Whether the trolley was so unbalanced that it toppled over by itself, or was so unstable that a bump was sufficient to cause it to topple, is immaterial to the matters to be determined in this appeal.

Section 5B of the Civil Liability Act

The respondent suffered injury, including to her cervical spine and shoulder. She sued Kmart for damages in negligence. By s 5A of the Civil Liability Act 2002 (NSW) (“CLA”), Part 1A of the Act applied to the claim. That being so, Kmart’s liability to the respondent turned on the application of s 5B, which provides:

5B General principles
(1)    A person is not negligent in failing to take precautions against a risk of harm unless—
(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)    the risk was not insignificant, and
(c)    in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)    the probability that the harm would occur if care were not taken,
(b)    the likely seriousness of the harm,
(c)    the burden of taking precautions to avoid the risk of harm,
(d)    the social utility of the activity that creates the risk of harm.

The fact that s 5B separately identifies various matters should not distract from the nature of the evaluative determination of negligence. Thus, in Ballina Shire Council v Moore [2023] NSWCA 155 Basten AJA (Ward P and Mitchelmore JA agreeing) said at [31]:

… assessing the significance of a risk in isolation from the context in which the exercise is undertaken is unlikely to produce a useful conclusion. That context involves the evaluative exercise as to whether a Council acting reasonably would have taken the identified precaution, an exercise which will include the nature and significance of the risk of harm. The fact that the section identifies a suite of matters to be considered does not mean that each is first to be assessed separately from the others and before undertaking the evaluative exercise.

The aspects of s 5B that received most attention on the appeal were the identification of the precautions Kmart might have taken against the risk of harm (s 5(1)); the burden of taking precautions to avoid the risk of harm (s 5(2)(c)); and whether in the circumstances a reasonable person in Kmart’s position would have taken those precautions (s 5(1)(c)).
Before turning to the primary judge’s decision, it is convenient to identify the respondent’s pleaded and particularised case as to the precautions a reasonable person in Kmart’s position would have taken.

The respondent’s particularised case as to a system of precautions

Identification of “precautions against a risk of harm” is central to s 5B.
The primary judge used the word “system” as a shorthand way to refer to a set of precautions against the risk of harm. Her Honour used the term to refer both to precautions Kmart already had in place, and to those that a reasonable person in Kmart’s position would have taken. Unfortunately, as will be seen, there is some uncertainty about the specific precautions the primary judge included in her use of the word “system”, both as to the precautions she found were already in place and as to those which she found a reasonable person would have taken.
One important aspect of the uncertainty is whether any system or procedure for transporting heavy, oversized items such as mountain bikes in boxes through the Woy Woy store was, or should have been, mandatory in the sense that customers were, or should have been, required to use it.
In these circumstances it is appropriate to identify the respondent’s pleaded and particularised case as to the precautions a reasonable person in Kmart’s position would have taken.
The amended statement of claim was apparently filed on 12 February 2024, the first day of the trial. Paragraph 6A pleaded the s 5B risk of harm as follows:

There was a risk of harm the boxes containing the mountain bikes would tip the shopping trolley they were in, or fall from the trolley, impacting and causing injury to a person nearby.

I will return to the characterisation of the risk of harm below. For present purposes it suffices to note that the reference to the shopping trolley in [6A] was to the standard size shopping trolley which had been involved in the incident.
Paragraph 11 of the respondent’s amended statement of claim, which appears to have been carried over from the original statement of claim, pleaded:

In the circumstances a reasonable person in the defendant’s position would have taken precautions to avoid the risk of harm (Section 5B(1)(c) of the CLA).

Paragraph 12 of the amended statement of claim then provided 17 particulars of negligence, largely expressed in the negative, i.e., “Failing to …” These included:

12.6   Failing to supervise customers in removing goods/mountain bikes from the premises;
12.7   Failing to prevent customers from unsafely loading trolleys in the premises;
…
12.16    Failing to have a flatbed trolley available for a customer to transplant mountain bike boxes to the cashier; and
12.17   Failing to provide a service for a customer to pick up boxes containing mountain bikes from the loading bay.
(Emphasis supplied.)

Paragraphs 12.16 and 12.17 had been introduced by the amendments.
By letter dated 5 April 2023, the respondent’s solicitors responded to a request for particulars of the allegation of negligence in the original statement of claim. The response included the following:

c.   It is not alleged that trolleys were not provided. The allegation is that the trolleys provided did not avoid the risk and contributed to it.
d.   Flat-bed trolleys would provide a safer option, or collection of large, bulky, and heavy items from the dock instead of in-store.
…
h.   Customers should have been supervised to avoid the risk of harm that occurred. See also the liability expert report of Mr Frank Jordan dated 29 August 2022.
i.   Had the defendant provided flat-bed trolleys, or collection of large, bulky, and heavy items from the dock then the customers would have been prevented from unsafely loading the boxed mountain bikes into the only trolleys available.
j.   The trolley was unsafely loaded in these circumstances as it toppled over and injured the plaintiff.
o.   The large, bulky and heavy boxed mountain bikes were being purchased and removed in the only trolleys available.
(References to numbering in the original statement of claim omitted; emphasis supplied.)

Kmart had requested particulars of the allegation as to “precautions to avoid the risk of harm” at [11] of the original statement of claim. The respondent’s answer was, “The Defendant should have taken precautions that prevented patrons from having to transport large, bulky, and heavy items in trolleys not suitable for transport of such items.” (Emphasis supplied)
Kmart had also asked that the respondent “[s]pecify precisely what precautions the plaintiff says that the defendant ought to have taken.” The respondent answered, “[p]lease see expert liability report of Mr Frank Jordan, dated 29 August 2022.”
Mr Jordan’s report (“the Expert Report”) included the following at [8.37], where he said that “a safe system of work … would have included, but not necessarily be limited to, the following”:

d)   … providing an alternate means for customers to select and pay for large bulky items without having to personally take the item to the checkouts, e.g.;
i.   Provide a flat-bed trolley, or similar; or
ii.   Have customers collect large and bulky items at the Dock; or
iii.   Provide a Click & Collect service;
iv.   Provide tickets for customers to take to checkouts to pay for large bulky items and then go to the Dock to collect the items;
v.   Have customers scanned the product bar-code and use the bar code to pay and then go to the Dock to collect the item;
vi.   Have staff take the item to the checkouts;

e)   Preparing a “Safe Work Instruction”, or similar document, that addressed the above points, and specifically;
i.   Prohibited customers from using a standard shopping trolley for transporting large bulky items through the store and/or to checkouts;
ii.   Instructed staff to approach customers using a standard shopping trolley to transport large bulky items, and recommend alternate means of paying for and collecting the item;
iii.   Had staff available to assist customers load large bulky items onto the trolley;
iv.   Had staff check large bulky items are properly secured on the trolley before the item is transported through the store;
v.   Had staff accompany customers to the checkouts and/or until they have exited the store to assist with securing/stabilising the load on the trolley[.]
(Emphasis supplied.)

Mr Jordan opined at [8.38] that “[a] responsible person in the position of the defendant would have, or would reasonably be expected to have, ensured all staff were trained in a system that addressed all of the above basic requirements.”
The respondent’s particularised case as to the precautions a reasonable person in Kmart’s position would have taken thus had multiple strands, which were to some extent alternative. For present purposes, the most important elements of the “system” of precautions the respondent alleged Kmart should have taken against the risk of harm (that the boxes would tip the standard trolleys over, causing injury) were as follows:

Kmart should have prohibited customers from using standard shopping trolleys to transport heavy, oversized items such as boxed mountain bikes through the store unsupervised. As I read the particulars as a whole, this element, at least, was alleged to be a mandatory part of the system of precautions a reasonable person in Kmart’s position would have taken.

Kmart should have provided other means by which such items would be transported through the store. The particulars identified several alternatives, including that Kmart should have provided flat-bed trolleys for customers themselves to use; or had customers collect such items from the loading dock or the checkout after Kmart staff had taken them there; or otherwise had staff supervise the customers as they transported such items through the store.

Kmart should have trained staff to implement the system.

No defence to the amended statement of claim was filed. The defence to the original statement of claim provided only bare denials of the allegation of negligence and of the particulars. Kmart did not in its pleading identify any system of precautions against the alleged risk of harm that it said was already in place.

The trial and the primary judge’s findings

The expert witness called in the respondent’s case, Mr Jordan, was put forward as having expertise in, among other things, occupational health and safety. Kmart objected to the whole of Mr Jordan’s Expert Report primarily on the basis that he lacked expertise in any relevant field of specialised knowledge; alternatively that the opinions were outside any such expertise; alternatively that there was no adequate reasoning exposed. Kmart also objected separately to particular paragraphs. Her Honour admitted the whole of Mr Jordan’s report and gave her reasons in the primary judgment.
Mr Jordan gave evidence as to various steps Kmart could (and he said reasonably should) have taken to implement a safe system to avoid the risk of harm to the respondent, to which the primary judge referred at J[29]. I have already set out aspects of Mr Jordan’s evidence about that system taken from [8.37] and [8.38] of his report. As seen above, one feature of his evidence about that system was a prohibition on customers using a standard shopping trolley for transporting large bulky items through the store and/or to checkouts: [8.37(e)(i)].
One feature of Mr Jordan’s evidence was that, in the absence of any formal or industry standards, he had made enquiries directly of other stores (Aldi, Target and Big W) about their practices or systems to assist shoppers for the purchase and transportation of large and/or heavy items. He recorded the results of his enquiries at [8.34] of his report, which was not the subject of separate objection at trial. The primary judge placed weight on this evidence, particularly about the system at Aldi, to which it will be necessary to return below.
Mr Jordan’s report addressed the “likely” measurements and weights of the two boxes that had been involved in the incident, by a process of reconstruction (which was again not the subject of separate objection) from similar models of mountain bikes. His report also addressed the dimensions of a standard size shopping trolley. Her Honour found that the two boxes containing the mountain bikes could never have fitted into a standard shopping trolley.
As her Honour noted:

30 Mr Jordan was cross-examined briefly, and on two topics only. First, it was put to him that that the Kmart system was the same as that in other stores, the inference being that this was all that was necessary, to which he responded:
“A. To the extent that they [the other stores] offered assistance to customers to carry boxes out or they provided a mechanism to carry the boxes out, bulky, large, bulky boxes. Kmart didn't do that. The other stores did to varying degrees and varying extents.” (Tcpt, 12 February 2024, p 59).

31 Mr Jordan went on to point out that Aldi provided a range of assistance as follows:
“Q. What about ALDI?
A. Well, at the time the - ALDI provided flatbed trolleys to carry big, large boxes out and they, they assisted customers to actually lift the bulky item onto the - onto the trolley. Customers themselves were not allowed to lift bulky items. They had to call staff assistance. And Aldi provided the trolley which the customer could take out to the car park and then they returned the trolley when they were finished loading the goods into their own car.” (Tcpt, 12 February 2024, p 59)

The second area of cross-examination concerned the practicability of using flatbed trolleys at the Woy Woy Kmart store, which was one aspect of the safe system he had identified in his report. As her Honour recorded at J[32], Mr Jordan said “I couldn’t consider the practicability of [flatbed trolleys] because I don’t know the layout of the store or the design of the store. So whether, whether a flatbed trolley would've worked or not, I'm not quite sure, but it would've been the obvious option if it could've worked.”
The primary judge also relied on the evidence of Ms Loaney, who had been the Kmart staff member present at the time of the accident shown talking to the male customer in the CCTV footage. At J[34], the primary judge quoted from Ms Loaney’s evidence in chief as to what her Honour described as “a system in place for customers with heavy items”:

“Q. I just wanted to ask you this: at that time, were you aware of any ability or availability for customers to purchase bulky items in the store, without themselves taking them through the self-checkout area?
A. Yes, there was a procedure where customers could ask for, for products to be taken to the loading dock and delivered to them, in their car, so they wouldn’t have to take it out themselves.” (Tcpt, 13 February 2024, p 106).

Her Honour referred to Ms Loaney’s evidence that she had seen that happen many times. In answer to a question asked in chief whether there were any signs in the store telling customers that such a service was available, Ms Loaney had responded “I don’t believe so”.
I pause to note an important feature of Ms Loaney’s evidence about the “procedure” for collection at the loading dock: that the procedure was not mandatory. It required customers to ask for that service, in circumstances in which there were no signs advertising it.
At J[36], her Honour also quoted from Ms Loaney’s evidence under cross-examination as follows:

“Q. You were there to supervise what was happening in the area where this incident happened, is that right?
A. Yes.
Q. You were there and saw a customer enter that area with the two large boxes in the trolley?
A. That’s correct.
Q. You could have advised them to take those boxes in the trolley to a point where they could be taken to the delivery dock, is that correct?
A. Yes.
Q. But you didn’t do that?
A. I did not.” (Tcpt, 13 February 2024, p 107(10)-(28))

The primary judge put some weight on a contemporaneous internal Kmart incident report at J[38]-J[40]. Her Honour quoted the report’s “suggested actions to prevent recurrence”, which recommended:

“Training of SCO team members to assist with bulky products as it could have been avoided if the team member had helped the customer with the bulky bikes at the SCO.” (CB 50).

Her Honour then said at J[40]:

There is no reference in this report to any system for assisting customers with bulky products being in place, but it seems clear from the recommendation of training that any such system, if it in fact existed, had not been any part of staff training. This is a significant gap in the defendant’s system.

In the dispositive section of her Honour’s reasoning as to liability, the primary judge began by referring to the CLA:

41 Section 5B provides that there is no breach of duty of care unless the risk of harm was foreseeable, not insignificant and one against which a reasonable person in the circumstances would have taken precautions to avoid. In determining whether a reasonable person would take such precautions, the court must take into account the probability that the harm would occur, the likely seriousness of the harm and the burden of taking precautions to avoid it.
42   Mr Priestley SC submits that the risk that a customer might overload a trolley with bulky items which might fall and injure someone was “relatively insignificant” (submissions, paragraph 3).
43   I do not accept this submission. The risk of customers emptying out the contents of their trolleys in a self-checkout area was that large or heavy items could result in injuries in a variety of scenarios. The self-checkout area in the Kmart store was thronged with customers concerned with their own transactions, rather than the safety of others, and who were putting their goods through the scanner at a great rate but without the benefit of the expertise of a trained check-out cashier. The possibility of items of 20 kg or more being mishandled by an untrained member of the public was not one that could or should have been treated as relatively insignificant.
44   The best evidence of probability that harm would occur if care were not taken (s 5B(2)(a)) is the defendant’s own evidence, namely the incident report and the evidence of Ms Loaney. The defendant was clearly aware of the need for there to be a system to assist customers with bulky or and/or heavy items. The defendant did not provide any training at all (as the incident report admits) or else it permitted staff who had been trained or otherwise informed about this system to disregard it. Equally importantly, there were no signs in the store to advise customers of this important service and there were (as Mr Jordan stated) no flatbed trolleys available to enable them to put into place as was possible for the more developed and efficient system in use at Aldi.
45   The presence of the system for assisting customers with heavy goods in use in the Kmart store, as well as the different (and better) system in stores such as Aldi, tells against the defendant’s submission (at paragraph 5) that the evidence does not establish it is common or standard for any particular precautions to be taken against the risk. As Mr Jordan said, it is not the case that other stores do not have a practice; the absence of a common or standard procedure in stores should not of itself excuse the defendant from complying with the system that it had itself set up.

The primary judge then referred to what she found was Kmart’s failure to answer a subpoena and its failure to cross-examine Mr Jordan about the adequacy of Kmart’s systems to help shoppers with very large or heavy purchases. The failure to answer the subpoena was said to lead to the Court adopting a “robust” approach to proof; the consequence of the failure to cross-examine Mr Jordan on those matters was that “this omission should not entitle the defendant to argue that its system should be accepted as sufficient.” I will return to these issues below.
As to the likely seriousness of the harm, the primary judge found at J[50]:

The likely seriousness of the harm (s 5B(2)(b)) was high. The dimension and weight of both boxes was considerable. Although the plaintiff was struck only by the larger box, the impact of the blow was considerable. The plaintiff was holding the hand of a small child at the time. That child could have been struck by one or both boxes falling out. 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.

The crucial passage in her Honour’s reasoning as to liability was at J[51], where her Honour addressed the burden of taking precautions to avoid the risk of harm for the purposes of s 5B(2)(c):

The burden of taking precautions to avoid the risk of harm (s 5B(2)(d)) was trifling. Kmart was already sufficiently aware of the danger to put a system in place to assist customers with large or heavy purchases. All that was required was some staff training and notices on the wall alerting customers, particularly in areas where large or heavy items were being sold, such as the two items which were in the trolley at the time of the incident. Flatbed trolleys, if added to the system, or a system for collection of large items at the loading dock, would be an added bonus for customers who were making multiple purchases, a not uncommon practice in stores of this kind. If the other shoppers had purchased two large bikes instead of one that was smaller, or four bikes instead of two, and these items had fallen from the trolley, the injury caused could have been even more substantial than that suffered by the plaintiff.

The reference to s 5B(2)(d) in the first sentence of J[51] is clearly intended to be to s 5B(2)(c).
The primary judge said at J[53]: “As the issue of causation is essentially a medical one, I have dealt with this issue in the section of this judgment concerning damages.” In that section, her Honour found at J[92] that the falling boxes had caused a pre-existing but asymptomatic degenerative condition to become symptomatic. Her Honour said, “The defendants’ breach of duty of care leading to the injury was thus a necessary condition of the occurrence of the harm for the purpose of s 5D: Strong v Woolworths Ltd (2012) 246 CLR 182.”
At J[54], her Honour concluded as to liability that the respondent had established a breach of Kmart’s duty to take reasonable care.

The appeal

Grounds 5, 8 and 9 are not pressed by Kmart. The remaining grounds of appeal that are capable of being dispositive are Ground 6 (breach of duty of care) and Ground 7 (causation). Kmart accepted at the hearing of the appeal that if the Court were to decide that there was error in the primary judge’s judgment, Kmart would nevertheless need to persuade the Court that it should lead to a different result in order to succeed on the appeal.
Grounds 1-4 are directed to elements of the primary judge’s reasoning leading to her Honour’s ultimate finding of breach of duty of care. Even if these grounds succeeded, it would not necessarily follow that the primary judge’s ultimate finding of breach was in error. Moreover, in the way in which Grounds 1-4 were advanced as separate grounds of appeal, particularly in the written submissions, they have been of marginal significance to my conclusion about breach. However, as these grounds were the subject of discrete submissions, I will address them first before turning to Ground 6 and the question of breach.

Ground 1

Ground 1 is: “The trial judge erred in admitting into evidence the report of Mr Frank Jordan.”
Although the ground is expressed as directed to the whole report, as noted above at trial and on appeal Kmart argued in the alternative that particular paragraphs of the Expert Report should not have been admitted.
To the extent that Kmart challenged the admission of the Expert Report as a whole as not meeting the requirements of the exception to the opinion rule in s 79 of the Evidence Act 1995 (NSW), it was not suggested that Mr Jordan lacked “specialised knowledge”. Instead, the objection was in essence that the field of “specialised knowledge” in which Mr Jordan was principally qualified, occupational health and safety, was not relevant to the issues in this case, which concerned an injury to a customer in a retail store. Thus, it was submitted at trial by senior counsel then appearing that Mr Jordan’s primary qualifications were not in “any relevant field of specialised knowledge as to ‘the practices of department stores in so far as they are relevant to customer safety’” (quoted at J[15]). The primary judge rejected the submission at J[17], on the basis that occupational health and safety issues are not limited to employees.
Her Honour was right to reject the submission that the whole report should not be admitted into evidence on the ground that Mr Jordan lacked relevant specialised knowledge. This was ultimately a relevance objection rather than a s 79 point about specialised knowledge. The test of relevance in s 55 is undemanding. The facts in issue included the precautions against the risk of harm that a reasonable person in Kmart’s position would have taken. It was at least conceivable that an opinion based on Mr Jordan’s “specialised knowledge based on [his] training, study or experience” might be relevant to those facts in issue. Mr Jordan holds a Masters Degree in Occupational Health & Safety, which is a recognised field of specialised knowledge. He has a number of other qualifications, including a certification in mechanical engineering. He has very considerable experience as a consultant and expert witness in a wide range of areas where safety issues had arisen, including giving evidence in cases involving “Retail Centres”. These include matters involving injuries to customers as well as staff in retail or hospitality venues.
Accordingly, in light of Mr Jordan’s specialised knowledge, it was necessary to address questions of admissibility, including in particular of relevance, at the level of his specific opinions. Although it was also submitted that the Expert Report as a whole should be rejected because Mr Jordan’s opinions were outside any field of expertise or did not sufficiently expose his process of reasoning, again, those objections required analysis of the particular opinions in issue.
As to the arguments advanced by Kmart on the appeal about particular paragraphs of Mr Jordan’s report, they can be grouped together. The main threads of the argument were that the opinions were beyond Mr Jordan’s specialised knowledge, such that they were not “wholly or substantially based on that knowledge” for the purposes of s 79(1); or that Mr Jordan’s process of reasoning was not sufficiently exposed to show that the opinions were so based. It might be noted that at the level of the individual opinions, I did not understand the objections to be advanced on the appeal in terms of relevance.

Kmart relied on the line of cases beginning with this Court’s decision in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”) and running through to the High Court’s decision in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (“Dasreef”). In Makita, Heydon JA said at [85]:

… the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. (Emphasis supplied.)

However, in Dasreef, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 604 [37]:

The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that ‘the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded’. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying ‘specialised knowledge’ based on his or her ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.(Emphasis supplied; citations omitted.)

In ELB Pty Ltd v Lumina BPO Pty Ltd [2021] NSWCA 91 at [52]-[53], after quoting the passage in Makita at [85], Beech-Jones J (Bell P and Brereton JA agreeing) said that the “apparent strictness of this statement was significantly qualified in the … passage” I have quoted from Dasreef. His Honour then said at [54]:

In this case, a specialist accountant who had worked for a particular client expressed an opinion that some item of accounting work was required to complete the client’s financial statements. That he was applying his “specialised knowledge” based on his “training, study or experience”, is a matter that required “little explicit articulation or amplification” once Mr Connolly described his qualifications and experience and identified the subject matter about which the opinion was proffered, as he did. Had it been necessary to decide this issue then, at least to the extent that Mr Connolly expressed an opinion about what was required to “Close the books”, I would have concluded that his evidence was rightly held to be admissible.

As was emphasised in Dasreef, the admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by parsing statements in decided cases divorced from the context in which those statements were made. The question under s 79 is whether the opinion is “wholly or substantially based on” the witness’s “specialised knowledge”, not whether that is made explicit on the face of the Report. That an opinion is so based may be apparent from what is expressly stated, from the immediate context in which the opinion is given, from the opinion’s place in the structure of the witness’s report, or, as is often the case, from a combination of the three. Thus, as Jagot J pointed out in Langv R [2023] HCA 29; (2023) 413 ALR 389 at [434], citing Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 per French CJ, Kiefel, Bell, Gageler and Keane JJ, “the expert evidence ‘must be presented in a way that makes it possible for a court to determine that it is [substantially] based’ on the person's training, study, or experience” (my emphasis). Of course, the less the process of reasoning is made explicit, the greater is the risk that an opinion, even if based on specialised knowledge, will not be admitted into evidence because that is not sufficiently demonstrated.
A related point about opinions wholly or substantially based on specialised knowledge was made by Kiefel CJ and Gageler J, in the context of the common law principles as to admissibility of expert evidence, in Lang. At [11], their Honours said that the principles stated in Makita and acknowledged and applied in Dasreef in the context of the uniform evidence legislation apply equally to the determination of the admissibility of an expert opinion at common law. Their Honours then said at [12]:

The requirement for the opinion to be demonstrated to be the product of the application of the specialised knowledge of the expert is not absolute. In the terminology of the uniform evidence legislation, it is enough that the opinion be demonstrated to be based substantially on that specialised knowledge. Expression of the requirement in terms of substantiality recognises that specialised knowledge cannot be wholly divorced from common or ordinary knowledge and that it is “the added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give his or her opinion”. The requirement will not be contravened by a process of reasoning on the part of an expert which involves using only those parts of the common or ordinary knowledge of the expert that are necessary for the expert to use in forming his or her opinion through the application of specialised knowledge.
(Emphasis supplied.)

See also per Jagot J at [435].

The mere fact that an opinion is based in part on a process of reasoning that involves common or ordinary knowledge is not a bar to admissibility under s 79, provided that the opinion is substantially based on specialised knowledge.
The point in Lang is of some significance in this case, where Kmart criticised aspects in Mr Jordan’s reasoning process, such as those in which he described and drew inferences from the CCTV footage at [8.15]-[8.19] of his report, as not being shown to be based on specialised knowledge. Whether or not those inferences were themselves based on specialised knowledge might be debatable. Mr Jordan was not a medical practitioner, as in the example in Dasreef. Nor was he an accountant, as in ELB v Lumina BPO. He was, nevertheless, an expert in a recognised field, being occupational health and safety. As in ELB v Lumina BPO, that Mr Jordan was applying his “specialised knowledge” based on his “training, study or experience”, was a matter that required “little explicit articulation or amplification” when he was expressing opinions about unsafe practices or safe systems. But even if — which I do not accept — the inferences Mr Jordan drew from footage showing the circumstances and mechanism of an incident causing personal injury were not sufficiently shown to be based on his specialised knowledge as an expert in occupational health and safety, those inferences were part of the reasoning process leading to Mr Jordan’s ultimate opinions about a safe system at [8.37]-[8.41].
Those ultimate opinions were substantially based on Mr Jordan’s specialised knowledge. Kmart took a Dasreef objection to the opinions at paragraphs [8.37] to [8.41]. It was said that these paragraphs did not expose Mr Jordan’s reasoning process but instead merely expressed conclusions. I do not accept the submission. It is not a fair reading of the Expert Report. These paragraphs step through the process of what Mr Jordan considered was required to formulate and implement a “safe system” (as he had said at [8.36]) for transporting large bulky items through a store to a checkout point, beginning with the identification of hazards and risks and continuing to various precautions by which they might be avoided. Moreover, given the structure of the Expert Report, these opinions should be read as following from earlier parts of Mr Jordan’s report, including his evidence as to the size and weight of the boxes containing the mountain bikes and the capacity of a standard shopping trolley at [8.2]-[8.4], [8.9]-[8.14]; the factors that he opined were relevant to formulating practices or protocols for transporting large bulky products from retail premises at [8.25]-[8.26]; and, in the absence of formal or informal standards in relation to those matters, the practices followed by Kmart’s competitors at [8.29]-[8.34].
Kmart’s arguments about the balance of the paragraphs to which it separately objected were largely to the effect that the reasoning for the opinions was not sufficiently exposed, i.e., the Dasreef objection. I have considered each of those paragraphs. I consider that, when read in their immediate context and in light of the Expert Report’s structure, each paragraph contains an opinion, or is part of the reasoning process for an opinion, that is sufficiently demonstrated to be based substantially on Mr Jordan’s specialised knowledge so as to meet the requirements for admissibility under s 79 of the Evidence Act.
Although I am against Kmart on these arguments as to admissibility, that is not to say that Mr Jordan’s opinions were necessarily all of great weight, or otherwise significant, in this case. Some of them plainly were not.
Perhaps the most important group of objections in light of the substantive issues on the appeal were those directed to Mr Jordan’s evidence of the results of the telephone enquiries he made of Kmart’s competitors, Aldi, Target and Big W, as to the standards, protocols or practices they had in place for the removal and purchase of large bulky items. Kmart’s submission was that Mr Jordan did not need any specialised knowledge to engage in the work of a factual investigator, and that he merely relayed hearsay information given to him by unidentified people.
A first serious difficulty with this submission is that the relevant paragraph of the Expert Report, [8.34], was not the subject of separate objection at trial. It was not mentioned in Kmart’s statement of objections provided to the primary judge. Nor was it the subject of oral argument. What is more, senior counsel then appearing for Kmart cross-examined Mr Jordan about the practices of Kmart’s competitors without attempting to limit the use of the answers. That included the passage about Aldi quoted at J[31], which is set out above. Mr Jordan’s evidence about the information obtained from his inquiries was admitted at trial as evidence of the facts, and treated by both parties as such, including in cross-examination. If objection had been taken at trial, it would have been open to the respondent to prove those matters by other evidence. It is too late to raise this objection now.
Secondly, to the extent that the objection now taken is that the Expert Report does not demonstrate that Mr Jordan used any specialised knowledge in making his enquiries, it misunderstands the function of the information obtained from those enquiries in Mr Jordan’s report. Mr Jordan expressed opinions about what would constitute safe practices for transporting bulky items through a store. The information he obtained from his enquiries of Kmart’s competitors formed part of the material upon which he formed those opinions. Experts often use their specialised knowledge in determining what information it is appropriate to obtain, and the means by which to obtain it, for the purpose of forming their opinions. One example would be the comparable sales used by a valuer in expressing an opinion as to valuation. Another would be academic studies about market behaviour relied on by a financial economist in expressing opinions about the price effect of information about a listed company if disclosed to the market at a particular time. To the extent that it is necessary to treat the information Mr Jordan obtained from his enquiries of Kmart’s competitors as a series of assumptions he used to form his opinions, and which therefore had to be proved independently, there was no such objection at the hearing. The evidence of the results of Mr Jordan’s enquiries was treated by the parties as evidence of the facts.
Kmart relied on the decision of Sackar J in Gordon v Lever [2018] NSWSC 1888 at [150]-[153], where his Honour referred to difficulties that can arise when experts “engage in their own sleuthing or investigations.”
The issue in Gordon v Lever was that on the face of the expert’s reports it was apparent that he had engaged in communications with other people who also had specialised knowledge, “implying he may have been influenced by others and expressing their joint views not his own” (at [153]). That had occurred in circumstances where the witness made “no mention of what he spoke to them about” in his reports (at [111]).
Sackar J said:

151    There are obvious dangers with this course of independent investigation, principally because the expert is uncontrolled and may be influenced by inadmissible or untested evidence. It is imperative that in their letter of retainer and during conferences solicitors keep in mind the necessity of keeping control over expert witnesses: Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893 at [18]-[19] per Lindgren J and Jango v Northern Territory of Australia (No 2) [2004] FCA 1004at [9]-[10] per Sackville J.
152    Clearly an expert may introduce factual materials into evidence as part of the giving of their expert opinion, for example in the case of a medical expert by examining a party to express an opinion as to their physical or medical condition. Experts may, as they have done in this case, attend a physical location to assess it or may inspect a physical object. In this sense, the expert introduces factual material such as their measurements or readings, in respect of which they may ultimately express an opinion. Experts may also refer to learned journals, authoritative textbooks and the reported data of fellow scientists.
153    However, it is imperative that an expert should set out in detail what was observed, read or undertaken to elucidate whether their opinions are based upon their expert knowledge. …

The concern that arose in Gordon v Lever is far from the present case. Here, the letter of instruction seeking Mr Jordan’s opinions included the question, “What are ordinary and accepted standards of purchase and removal of large bulky items in the circumstances you have been asked to assume?” Answering that question required Mr Jordan, as an expert in occupational health and safety, to obtain information, and then to express an opinion based on his specialised knowledge. There being no regulatory or industry-wide uniform standards about those matters (Expert Report [8.29]-[8.33]), Mr Jordan then made enquiries with Kmart’s competitors to determine whether there was “any similarity or crossover between businesses in the same industry sector”: Expert Report [8.33]. Mr Jordan summarised those enquiries at [8.34]. His conclusion at [8.35], that the competitors had “similar, or partially similar, systems in place”, was his answer to the question whether there were any “ordinary and accepted standards”. I note that, as far as it went, that answer was not unhelpful to Kmart.
As Sackar J acknowledged in Gordon v Lever at [152], an expert witness may permissibly introduce factual materials into evidence as part of giving their expert opinion. The key point is the one at [153]: “it is imperative that an expert should set out in detail what was observed, read or undertaken to elucidate whether their opinions are based upon their expert knowledge”. Mr Jordan did that here.
In any event, the objection in Gordon v Lever was not to the information the expert witness had obtained (which was unknown), but rather to the opinions he expressed, in circumstances where it was not possible to determine whether they were based on the expert’s own knowledge.
In my opinion, Kmart’s objection to the evidence at [8.34] of the Expert Report must fail. The evidence of practices at Aldi, Target and Big W was admitted as evidence of the facts.
Finally, a distinct objection was taken in respect of Mr Jordan’s evidence at [8.24], that it was speculative; see Lang at [13]. Paragraph [8.24] was as follows:

8.24   The fact that the Self-Checkout staff member failed to confront ‘the shoppers’ about how the boxes presented as a hazard and risk to other customers (and staff) safety suggest, at least, that;
a)    The defendant did not have an established process for customers to purchase and remove large bulky items from the store; or
b)    If such a process had been developed, it had not been communicated, or effectively communicated, to the Self-Checkout staff member, or other members of staff who may have observed 'the shoppers' transporting the boxes through the store; or
c)   If the process had been developed and communicated to staff, it was being ignored, dismissed, or otherwise disregarded by staff on the day.

There is some force in the objection. But I would read the paragraph as the expert doing no more than using his specialised knowledge of safe systems in the workplace, and his experience of how they can fail, to infer from a fact (that the staff member had not confronted the “shoppers”) that several rational possibilities were open (“suggest, at least, that …”). I do not read the paragraph as opining that any one of these possibilities was a fact — for example, that Kmart did not in fact have any such established process.
On the assumption that an “established process” would have required the staff member to confront the “shoppers”, each of the matters mentioned in [8.24] of Mr Jordan’s report was a rational possibility in any event. It follows that the evidence at [8.24] was of very limited, if any, probative value (cf. Lang at [25]); but I did not understand the objection to be as to its relevance.
Ground 1 is not established.

Grounds 2, 3 and 4

These grounds, which were argued together, are as follows.

2   The trial judge erred in finding that the appellant did not implement a system to assist customers with heavy or bulky items.
3   The trial judge erred in failing to have sufficient regard to the evidence that a system was in place.
4   The trial judge erred in not finding that the appellant had a system in place to assist customers with heavy or bulky items.

It may be noted that each of these grounds is concerned with what Kmart in fact did, not what a reasonable person in its position would have done.
In its written submissions on the appeal introducing these three grounds, Kmart submitted (references omitted):

The primary judge appears to have found that there was no system in place or alternatively, that the system in place was not a sufficient precaution to be taken against the risk of harm.

That submission entangles two different issues. The first is the factual question whether there was any “system” in place or not; a question which these three grounds of appeal squarely raise. The second, whether the primary judge found any such system insufficient, goes to the question of breach. That is not a question which these grounds squarely raise, but it is the subject matter of Ground 6, and I will deal with it there.

As to the first issue, whether there was any system at all, Kmart submitted (references omitted):

The reference above to “appears to have found” is necessary for it seems elsewhere in the Judgment that the primary judge did accept that there was a system for assisting customers with heavy goods in use in the store.

The problem here is partly one of nomenclature, in particular, the use of the word “system”.
The primary judge set out at J[34] the evidence of Ms Loaney, which I have quoted above. That evidence was expressed in terms of “a procedure where customers could ask for … products to be taken to the loading dock and delivered to them, in their car, so they wouldn’t have to take it out themselves.” Her Honour also referred to Ms Loaney’s evidence that there were no signs at the store telling customers that such a service was available.
That evidence went no further than describing a service that was provided only to customers who had the initiative to ask for it, in circumstances in which it was not advertised by signage. I do not consider the word “system” to be an apt description of the circumstances in which, on Ms Loaney’s evidence, that service was available to customers.
Despite the fact that the primary judge plainly accepted Ms Loaney’s evidence, Kmart pointed to several paragraphs in the primary judgment as suggesting that the primary judge had found that there was no “system” in place at all.
The first was at J[39]-J[40], quoted above, where her Honour referred to the recommendation in the incident report and then said that “any such system, if it in fact existed, had not been any part of staff training.”
I do not read that passage as doubting Ms Loaney’s evidence about the loading dock “procedure”. I do, however, accept Kmart’s submission that the incident report did not provide a sufficient basis to infer that there had been no staff training at all in relation to any “system” involving the loading dock. At most, the recommendation in the incident report appears to have been directed to training staff to help the customer “at the [self checkout]”. But little turns on that. The incident report conveyed that at least some training “to assist with bulky products” was appropriate.
Kmart referred to J[44], where her Honour said:

The best evidence of probability that harm would occur if care were not taken (s5B(2)(a)) is the defendant’s own evidence, namely the incident report and the evidence of Ms Loaney. The defendant was clearly aware of the need for there to be a system to assist customers with bulky or and/or heavy items. The defendant did not provide any training at all (as the incident report admits) or else it permitted staff who had been trained or otherwise informed about this system to disregard it. Equally importantly, there were no signs in the store to advise customers of this important service and there were (as Mr Jordan stated) no flatbed trolleys available to enable them to put into place as was possible for the more developed and efficient system in use at Aldi.
(Emphasis supplied.)

In the context of s 5B(2)(a) of the CLA, her Honour’s reference in the second sentence to “a system” appears to be directed to a hypothetical system that responded to a risk of harm. But her Honour’s references in the third and fourth sentences to “this system” and “this important service” must be directed to the specific procedure about which Ms Loaney gave evidence. In the result, at J[44] the primary judge should be taken to have accepted Ms Loaney’s evidence about the existing non-mandatory procedure for collection at the loading dock. But, as I will return to in the context of Ground 6, her Honour found that it was not a sufficient precaution against the risk of harm.
Kmart next complained of what her Honour said at J[46]:

There is another problem with the defendant’s evidence about its system for assisting customers with large purchases, namely the failure to answer subpoenae that I am satisfied would have produced such evidence, or to have cross-examined Mr Jordan about that system.

Again, I do not read this paragraph as doubting Ms Loaney’s evidence about the existence of the non-mandatory loading dock procedure. But it does raise several issues:

Did Kmart fail to answer a subpoena requiring production of documents about its “system”?

If so, what did the primary judge do as a result?

What did her Honour do as a result of Kmart’s failure to cross-examine Mr Jordan about its “system”?

As to Kmart’s supposed failure to produce documents, paragraph 3 of the schedule to the subpoena sought documents relating to “procedures or guidelines … regarding handling, moving, and restocking of bulky and/or heavy items … such as boxes containing mountain bikes, from any points of unloading or delivery into any other location in the store.” Paragraph 4 of the subpoena sought documents “which identify and prescribe the use of any aids, trolleys, trays, pulleys, or any other devices or items that employees may use in the lifting and moving of heavy or bulky items … including mountain bikes contained in boxes.”
Kmart submitted that paragraph 3 was limited to documents relating to the inward delivery of bulky or heavy items to the store, rather than procedures relating to sales to customers, and that paragraph 4 was limited to devices for employees rather than customers to use. I accept that submission as a matter of interpretation of the subpoena. Although it is somewhat surprising that nothing was produced under paragraphs 3 or 4 (given the nature of Kmart’s business and its workplace health and safety obligations to its employees), having regard to the terms of those paragraphs, her Honour erred in finding at J[46] that Kmart failed to produce documents “about its system for assisting customers with large purchases”.
As to the second issue, little turns on the error in J[46]. Although the primary judge referred at J[47] to taking a “robust” approach to proof, her Honour does not seem to have applied that approach with respect to finding any particular fact. The only inference that Kmart submits her Honour drew on the basis of taking a “robust” approach to proof was a supposed “inference drawn against [Kmart] about the very existence of the system described by Ms Loaney.” For the reasons I have given above, that is the opposite of the finding that her Honour actually made.
As to the third issue, again, little ultimately turns on the primary judge’s references at J[46] and J[48] to Kmart’s “failure” to cross-examine Mr Jordan about its “system”. When her Honour spoke at J[46] of “[Kmart’s] evidence about its system for assisting customers with large purchases”, that must have been Ms Loaney’s evidence about the loading dock procedure. When her Honour then spoke at J[48] of Kmart’s “failure to cross-examine Mr Jordan about the adequacy of Kmart’s system”, this was again a reference to the procedure of which Ms Loaney gave evidence. Her Honour then said at J[48] “this omission should not entitle the defendant to argue that its system should be accepted as sufficient.”
Whether any consequence should have flowed from Kmart’s failure to cross-examine Mr Jordan about the procedure of which Ms Loaney gave evidence falls to be determined in the following circumstances.

In cross-examination, Mr Jordan had said, “To the extent that they [the other stores] offered assistance to customers to carry boxes out or they provided a mechanism to carry the boxes out, bulky, large, bulky boxes. Kmart didn’t do that.” (J[30]; emphasis supplied). He was not challenged on that evidence.

The first notice of Ms Loaney’s evidence appears to have been given on the morning of the second day of the trial, when senior counsel for the respondent informed the primary judge that senior counsel for Kmart then appearing “has a witness who he would wish to call who’s not available till 2.15” (13/02/2024; T 64.41). The respondent did not object to that course, even after senior counsel for Kmart informed her Honour, “The main point I'm instructed is that there was a system in the store at the time that allowed customers to ask for bulky goods to be collected outside the store so they didn't have to be run through the register”: (13/02/2024; T 66.34).

Nor does there appear to have been any objection taken when Ms Loaney gave her evidence, either on the ground that the respondent was surprised by it, or on the ground that the matters of which she gave evidence were not put to Mr Jordan.

Senior counsel then appearing for Kmart submitted in final addresses, “based on the evidence of Ms Loaney this afternoon”, that the respondent’s case about reasonable precautions “assumes wrongly that no such process was available in this store.” (13/02/2024; T 114.21-25 and Defendant’s Outline of Closing Submissions at [7]; emphasis supplied). The respondent did not submit, on the ground that the matters of which Ms Loaney gave evidence had not been put to Mr Jordan, that it was not open to Kmart to make that submission.

Finally, the respondent does not appear to have submitted to the primary judge that Kmart’s failure to cross-examine Mr Jordan on this issue should have any consequence in the process of fact-finding. To the contrary, towards the end of addresses, the primary judge said to senior counsel for the respondent, “what’s troubling me is that your expert hasn’t had an opportunity to comment on any of this because it’s all come after he’s been and gone.” He answered, “That’s right.” (13/02/24; T 118.5-17). Her Honour then asked, “Did you send a subpoena to your opponents for information about any systems in place?” The exchange went off in a different direction.

That Mr Jordan was not given an opportunity to deal with the non-mandatory loading dock procedure of which Ms Loaney gave evidence was unsatisfactory. But, particularly in light of the way in which the matter proceeded, if the primary judge had relied on that as a reason for finding that there was no such procedure at all, I do not think that it would have been open to her Honour to do so. However, that is not what her Honour did. Her Honour accepted Ms Loaney’s evidence about the procedure and acted upon it.
As noted above, the primary judge did say at J[48] that “this omission should not entitle the defendant to argue that its system should be accepted as sufficient” (emphasis supplied). Kmart submitted that that sentence should be read as meaning the failure to cross-examine Mr Jordan about the “system identified by Ms Loaney” had the effect that Kmart was not entitled even to argue that its system should be accepted as sufficient, i.e., that it should be prevented from making any submission on the issue at all. If that was what her Honour intended to say, it was a somewhat roundabout way to say so. And if that was what her Honour had done, I do not think that it would have been open to her Honour to do so. But that is not what her Honour in fact did. Kmart was permitted to argue its case and her Honour determined it on the merits.
Kmart went as far as submitting: “Given the primary judge’s approach noted above, there was no finding made by the primary judge as to the sufficiency of the system described by Ms Loaney” (Appellant’s Outline of Submissions at [24]; emphasis supplied). That is incorrect. As I will explain below in the context of Ground 6, her Honour found that Kmart’s existing “system” was an insufficient precaution against the risk of harm.
In the result, these three grounds of appeal are not made out.

Ground 6

Ground 6 is: “The trial judge erred in finding that the appellant breached its duty of care to the respondent.”
The primary judge’s ultimate finding of breach is at J[54]. Her Honour said the breach was “in terms of the particulars pleaded”, and also adverted to the provisions of the CLA to which she had referred above — i.e., in particular, s 5B.
Kmart’s written submissions on this ground of appeal built on its submissions about Grounds 1-4 and were otherwise relatively brief. They focussed on issues relating to the evidence that flatbed trolleys were not available at Kmart Woy Woy.
There is some uncertainty about the primary judge’s findings as to the specific precautions which a reasonable person in Kmart’s position would have taken against the risk of harm. Isolating the process of reasoning which led to a finding of breach is complicated by the ways in which her Honour used the word “system”. It is necessary to consider her Honour’s reasons closely.
The central reasoning is at J[51].

The burden of taking precautions to avoid the risk of harm (s 5B(2)(d)) was trifling. Kmart was already sufficiently aware of the danger to put a system in place to assist customers with large or heavy purchases. All that was required was some staff training and notices on the wall alerting customers, particularly in areas where large or heavy items were being sold, such as the two items which were in the trolley at the time of the incident. Flatbed trolleys, if added to the system, or a system for collection of large items at the loading dock, would be an added bonus for customers who were making multiple purchases, a not uncommon practice in stores of this kind. If the other shoppers had purchased two large bikes instead of one that was smaller, or four bikes instead of two, and these items had fallen from the trolley, the injury caused could have been even more substantial than that suffered by the plaintiff.

That paragraph raises several issues.

What was the “risk of harm”?

What was Kmart’s “system in place to assist customers with large or heavy purchases”?

Did the primary judge err in failing to find that system sufficient to respond to the risk of harm?

What were the precautions her Honour found a reasonable person would have taken to avoid the risk of harm?

Did the primary judge err in finding Kmart breached its duty?

First issue: risk of harm

Kmart — for reasons that will become apparent — abandoned a ground of appeal to the effect that the primary judge erred in identifying the risk of harm relevant to the circumstances of the respondent’s claim (Ground 5). Nevertheless, identification of the “risk of harm” is central to s 5B.
It is necessary to characterise the risk of harm at an appropriate level of generality. See Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 per Gordon, Edelman and Gleeson JJ at 489-495 [106]-[125] (holding that the risk of harm for purposes of s 5L should be characterised to the same level of generality for purposes of s 5B). See, e.g., Ballina Shire Council v Moore [2023] NSWCA 155 at [21]-[28].
In this case the risk of harm was variously formulated as follows.

As noted above, the respondent pleaded at paragraph 6A of the amended statement of claim: “There was a risk of harm the boxes containing the mountain bikes would tip the shopping trolley they were in, or fall from the trolley, impacting and causing injury to a person nearby.”

In the respondent’s written Outline of Submissions at trial dated 13 February 2024, it was said: “The risk of harm was that the large mountain bike boxes would fall from the shopping trolley and impact with a person, causing injury.”

In Kmart’s Outline of Closing Submissions at trial dated 13 February 2024, it was said: “The relevant risk of harm could be articulated as the risk that a customer might overload a trolley with bulky items, which might fall and injure a customer.”

The primary judge referred to the last of those formulations at J[42], which is set out above. This was in a context where at J[41] her Honour had commenced analysis of the s 5B issues, including that the risk of harm was “not insignificant” (i.e., the s 5B(1)(b) issue). At J[42], her Honour referred to the submission for Kmart that the risk that a customer might overload a trolley with bulky items which might fall and injure someone was “relatively insignificant”.
In the first sentence of [43], her Honour said, “I do not accept this submission.” It is plain in the context that what her Honour was not accepting was the submission that the risk was relatively insignificant; she was not addressing the particular description of the risk. In the next sentence, her Honour said, “The risk of customers emptying out the contents of their trolleys in a self-checkout area was that large or heavy items could result in injuries in a variety of scenarios.”
Kmart seized on the second sentence of [43], submitting that it represented her Honour’s finding as to the risk of harm. If that were the finding, its attraction to Kmart was that it permitted Kmart to submit that the risk her Honour had found, i.e., customers emptying out the contents of their trolleys in a self-checkout area, was not the one that came home.
I do not accept Kmart’s submission that the second sentence of [43] represented the primary judge’s finding as to the risk of harm in this case. Her Honour was dealing with one way in which the risk of harm might come home. That her Honour understood the risk of harm more broadly is apparent from the more general language her Honour used elsewhere. For example, at J[44], her Honour referred to “the need for there to be a system to assist customers with bulky and/or heavy items.” To similar effect is her Honour’s language at J[51] where her Honour said that Kmart was “sufficiently aware of the danger [i.e., the risk of harm] to put a system in place to assist customers with large or heavy purchases.” Her Honour’s reasoning at J[51] is not confined to risks in the self-checkout area, still less to risks associated with customers emptying out the contents of their trolley in that area.
In the result, the primary judge did not make a finding clearly articulating the risk of harm. It may well be that she did not do so because that was not the focus of the contest before her. As senior counsel for the respondent said in the course of argument on the appeal, “The risk of harm didn’t really take a major role in the trial.” (App Tr 35.20) Counsel had submitted to the primary judge, “The system is just inherently unsafe. The risk of harm is self-evident.” (13/02/24; T 118.5)
The risk of harm in this case arose in the following circumstances.

Kmart was selling large, bulky and heavy items such as mountain bikes in boxes which were, no doubt, impractical or impossible for many customers to carry to the checkout.

Kmart did not make flatbed trolleys available to customers: J[29]. The only trolleys that the evidence indicates Kmart made available to customers were standard size shopping trolleys. The boxes containing the two mountain bikes were oversized in the sense that they did not fit, or did not fit stably, in standard size shopping trolleys. As her Honour found at J[26], referring to the boxed mountain bikes: “These items could never have fitted into a [standard shopping trolley]”.

Unless a customer asked a member of staff for assistance, and the customer was advised to collect the item from the loading dock, the evidence does not disclose that there was any way for a customer to transport a heavy, oversized item from the place where the customer found it in the store to the checkout, other than by attempting to use a standard size trolley.

In the circumstances of this case, the risk of harm should be characterised as the risk of physical injury by heavy, oversized items such as mountain bikes in boxes tipping or falling from customers’ shopping trolleys.
The respondent’s formulation at [6A] of the amended statement of claim was similar: "There was a risk of harm the boxes containing the mountain bikes would tip the shopping trolley they were in, or fall from the trolley, impacting and causing injury to a person nearby." The principal difference is whether the risk of harm is characterised as confined to boxes containing mountain bikes. When determining whether a reasonable person in Kmart’s position would have taken precautions against the risk of harm (s 5B(1)(c) and (2)), a reasonable person in its position would take precautions to avoid risks similar to those arising from mountain bikes in boxes; cf s 5C(a).

Although I will address each of those matters separately, I do so as part of the overall evaluative task involved in determining whether Kmart was negligent.
Kmart did not address in its written submissions the question of a mandatory system for collection of heavy, oversized items such as boxed mountain bikes at the loading dock, other than to deny that her Honour had made such a finding. However, the question of a mandatory system for the transportation of such items to the loading dock was canvassed at several points in the course of argument on the appeal. Although the focus of oral argument was s 5B(2)(c) (the burden of taking precautions), it is convenient first to address paragraphs (2)(a), (b) and (d).
As to par (2)(a), the words, “if care were not taken” require an assessment of the probability of harm in the absence of the precaution(s) it is alleged a reasonable person would have taken. The precautions under consideration here are prohibiting customers from using standard size trolleys to transport heavy, oversized items such as boxed mountain bikes through the Woy Woy store, and instead requiring customers to collect such items at the loading dock. I consider that, if those precautions were not taken — that is, if customers were permitted to use standard size shopping trolleys to transport heavy, oversized items such as the boxed mountain bikes, and the procedure for collection at the loading dock remained a mere option — there would be a substantial probability that customers would continue to use standard size trolleys for such items. There are many reasons a customer, given a choice, might not choose to use the loading dock. Perhaps the most obvious is mistakenly thinking they could safely control a standard trolley to transport such items to the checkout.
Using standard size trolleys for such items would expose other customers to a risk of harm. There is little evidence on which to assess the probability that the risk would eventuate, i.e., that “the harm would occur”. There was no evidence as to the frequency or absence of occurrence of similar incidents. The primary judge at J[44] relied on the incident report and Ms Loaney’s evidence as demonstrating “the need for there to be a system”, implicitly finding in the context of discussing s 5B(2)(a) that it was probable that harm would occur if care were not taken. Her Honour did not otherwise address the degree of probability. In any event, Kmart did not challenge that finding.
As to par (2)(b), the primary judge found that the likely seriousness of the harm was high: J[50]. There was no challenge to that finding. The likely seriousness of the harm if the risk eventuated would vary depending on the size, weight and shape of an item tipping or falling from the trolley, the physical characteristics of the person it struck, and where it struck them. But given the potential for catastrophic injury, her Honour was right to find that the likely seriousness of the harm was high. Even a few minutes of the CCTV footage shows the number of vulnerable customers, including small children, who were exposed to the risk.
As to par (2)(d), the social utility of the activity is not a subject to which the primary judge or either party gave particular attention. It was the subject of the abandoned Ground 8. In the absence of evidence or submissions concerning the effect that mandatory use of a loading dock for heavy, oversized items would have on any activity, I regard it as a neutral factor in the analysis.
I turn to par (2)(c): the burden of taking precautions if customers were prohibited from using standard size trolleys for heavy, oversized objects, and the existing procedure by which such items could be taken to the loading dock were made mandatory.
There was no evidence about the means by which Kmart staff transported such items to the loading dock under the existing non-mandatory procedure — whether by a flatbed trolley, some other kind of trolley, or otherwise. But Kmart undoubtedly had some means of transporting such items through the store; that was the whole point of the existing procedure. And Kmart embraced Ms Loaney’s evidence that that procedure had been “used many times” (AT 17.18).
Kmart thus acknowledged in the course of argument that if Ms Loaney’s procedure had been made mandatory, it would not have been burdensome for Kmart to go “from point A to point B” (AT 18.4), i.e., to take the item from the point in the store where it was located to the loading dock.
Kmart nevertheless submitted that one could not say whether or not making the procedure mandatory would have been burdensome in some other way:

… there are other elements which may inform whether it is or is not burdensome. And we didn’t, in this particular case, investigate that – or should I say her Honour didn’t, nor was it the case that her Honour found that it was a mandatory system that needed to be in place. (AT 18.4-8)

The only “other element” to which Kmart pointed was that “One doesn’t know whether the client has brought his or her car or whether the client has an immediate need for these particular items for children or for some other purpose.” (AT 18.1-3) A difficulty with this submission, apart from its speculative nature, is that the “burden” of taking precautions to avoid the risk of harm in section 5B(2)(c) is (at least primarily) the burden on the defendant, rather than the burden of third parties. To the extent that the submission should be understood as contending that making the loading dock procedure mandatory would be commercially unattractive to Kmart, there was no evidence to that effect.
Kmart submitted that it was for the respondent to lead evidence about the burden of taking precautions, since the respondent bore the legal onus. It is true that the respondent bore the legal onus of proving negligence, including that a reasonable person in Kmart’s position would have taken precautions against the risk of harm (s 5B(1)(c)). However, s 5B(2)(c) does not create a distinct requirement that the respondent disprove that any precautions were burdensome. Rather, the burden of taking precautions was a matter to be considered in determining whether the respondent had discharged her legal onus of proving negligence. In any event, as with any factual issue, the persuasive onus may shift from time to time depending on the evidence in the case. And the significance to be given to evidence may vary depending on the evidence that it is within the power of the parties to lead: see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [58] per Kiefel CJ, Gageler and Jagot JJ, citing Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 [98 ER 969 at 970].
In light of Ms Loaney’s evidence that the loading dock procedure had been used many times, there was evidence in the case relevant to considering the burden of taking precautions. If Kmart sought to rely on some particular burden involved in requiring customers to collect heavy, oversized items from the loading dock at the Woy Woy store, such that a reasonable person would not have taken that precaution against the risk of harm, it had to lead evidence to support its contention. It led no such evidence.
There is one further matter relevant to the s 5B(2) consideration, insofar as it concerns the precaution of prohibiting customers from using standard size trolleys to transport heavy, oversized items. The primary judge plainly accepted Mr Jordan’s evidence about the system in place at Aldi: see J[28]. Paragraph [8.34(a)] of his Expert Report included evidence that at Aldi, “Customers are not permitted to lift or move large, heavy or bulky items without assistance from a staff member” and “Customers are not permitted to carry large bulky items in standard shopping trolleys.” Instead, Aldi’s staff provided flatbed trolleys for customers to use and provided assistance for customers to load heavy and bulky items onto the flatbed trolleys. Mr Jordan’s evidence under cross-examination quoted by the primary judge at J[31] was to similar effect.
This was uncontradicted evidence that one of Kmart’s competitors had in place a mandatory system that both (a) prohibited customers from using standard shopping trolleys to carry large, heavy or bulky items and (b) required customers to obtain the assistance of a staff member before moving them. It was evidence from which to infer that the burden of the precaution of prohibiting customers from using standard size trolleys was not itself excessive (provided, of course, that some other means of transport was available). Although Aldi’s system involved the use of flatbed trolleys as the means by which such items were transported through the store, the fact that there was no evidence about the suitability of flatbed trolleys for use at the Kmart Woy Woy store is not to the point on this question. As noted above, Kmart undoubtedly had some means of transporting such items through the store.

Conclusion on fifth issue: breach

In my opinion, considering the matters in s 5B(2), the evidence establishes that Kmart breached its duty of care to the respondent.
On the evidence, a reasonable person in Kmart’s position would have implemented a system for customers to purchase heavy, oversized items such as boxed mountain bikes that included the precaution of prohibiting customers from using standard size shopping trolleys to transport such items through the store unsupervised. Other elements of the system a reasonable person in Kmart’s position would have implemented as precautions against the risk of harm would be providing other means by which such items were to be transported through the store or otherwise made available for customers to purchase; putting up signs in the areas where such items were located informing customers of the system; and training staff, including about how to engage with customers so that they would comply with the system.
There may have been several different alternative means for transporting heavy, oversized items through the store for customers to purchase that a reasonable person in Kmart’s position might have provided that would have been consistent with prohibiting customers from using standard size trolleys to do so unsupervised. For example, depending on the configuration of the Woy Woy store, one means might have been for staff to provide flatbed trolleys to customers together with assistance in using them (as Aldi did). In the absence of evidence as to their suitability, the possibility that there may have been more than one means consistent with prohibiting customers from using standard size trolleys to transport heavy, oversized items is not material for present purposes. On Ms Loaney’s evidence about the existing procedure there was at least one such means that was suitable to implement at the Woy Woy store: Kmart could have made mandatory the existing procedure by which Kmart staff took heavy, oversized items to the loading dock for collection by customers. On the evidence, taking that precaution would not have been excessively burdensome.
Kmart’s failure to take the precaution of implementing such a system breached its duty of care to the respondent.
The approach I have adopted to the precautions a reasonable person in Kmart’s position would have taken, and the emphasis I have given to prohibiting the unsupervised use by customers of standard size trolleys to transport heavy, oversized items, is different from the primary judge’s approach at J[51], but not in a way that assists Kmart. As I have said, given that her Honour was contemplating a mandatory system (in which customers used either flatbed trolleys or the loading dock), the prohibition on customers using standard size shopping trolleys to transport items such as the boxed mountain bikes unsupervised was implicit in her findings at J[51].
In any event, even if that were not so, Ground 6 in the notice of appeal is expressed at the level of the ultimate finding, namely that the primary judge erred in finding breach. As noted above, Kmart accepted at the hearing of the appeal that if the Court were to accept that there was error in the primary judge’s judgment, Kmart would nevertheless need to persuade the Court that it should lead to a different result. I am not so persuaded.
In the result, I am satisfied that her Honour’s ultimate conclusion of breach was correct. Accordingly, Ground 6 fails.
My conclusion as to the precautions a reasonable person would have taken is confined to the Woy Woy store, in the circumstances disclosed by the evidence in this case. Even if the risk of harm were similar at other stores or retailers, the precautions a reasonable person would take against it would depend on the circumstances.

Ground 7

Ground 7 is: “The trial judge erred in finding that the appellant’s negligence caused the respondent to suffer injury, loss and damage.”
Section 5D(1)(a) provides:

A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
…

Kmart submitted in writing that on the issue of causation the primary judge did not engage in any analysis of whether the negligence was a necessary condition of the occurrence of the harm as required by s 5D. Kmart said that determining whether the appellant’s negligent conduct caused the harm sustained required a counterfactual assessment as to whether the reasonable precautions identified would, applying the “but for” test, have altered the outcome, citing Strong v Woolworths Ltd (2012) 246 CLR 182 at 190 [18]; [2012] HCA 5 and Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 457 at 487-488 [101]; [2022] HCA 11.
As noted above, after saying at J[53] that “the issue of causation is essentially a medical one,” the primary judge returned to causation at J[90], where her Honour quoted s 5D in full. Her Honour then said at J[91]: “The causation issue here is quite narrow.” Her Honour went on to address aspects of the medical evidence, and found at J[92] that the falling boxes had caused a pre-existing but asymptomatic degenerative condition to become symptomatic. Her Honour concluded, “The defendants’ breach of duty of care leading to the injury was thus a necessary condition of the occurrence of the harm for the purpose of s 5D: Strong v Woolworths Ltd (2012) 246 CLR 182.”
The primary judge did not further address the issue posed by s 5D(1)(a). That is to say, while her Honour had addressed the causal connection between the box striking the respondent and her injuries, her Honour did not separately analyse whether any failure to take reasonable care had caused that harm.
It is perhaps unsurprising that the primary judge did not separately address that issue. The respondent’s written outline of submissions dated 13 February 2024 had not addressed the question under s 5D(1)(a) other than in terms of the medical evidence: see at [12]-[17]. The respondent had nevertheless concluded at [15]: “In other words the defendant’s breach of duty of care was a necessary condition of the occurrence of the harm in the sense of satisfying s 5D of the CLA (factual causation) (also see Strong v Woolworths Ltd (2012) 246 CLR 182).” In the course of addresses at trial, senior counsel for the respondent took the primary judge to that paragraph of his submissions, but did not develop the point beyond submitting: “… the harm being the exacerbation of the pre-existing condition. So that fits squarely with 5D of the Civil Liability Act, factual causation”: 13/02/2024; T90.50.
The appellant’s outline of closing submissions dated 13 February 2024 had not addressed the question of causation at all.
Neither party otherwise addressed the question whether the failure to take reasonable care was a necessary condition of the occurrence of the harm in oral submissions at trial.
Nevertheless, the issue being live on the pleadings, it must be determined.
While Kmart is correct that there was no analysis in support of the primary judge’s finding of causation at J[92] by way of counterfactual assessment, Kmart accepted on the appeal in general terms that it had to show that there should be a different result. Consistently with that approach, Kmart’s submissions addressed the evidence relevant to causation.
Kmart’s written submissions proceeded on the assumption that the primary judge had not made any finding that there should have been a mandatory procedure for transporting heavy, oversized items such as the boxed mountain bikes through the store. Thus it submitted:

Even if Kmart had placed signs alerting customers of the service available to collect goods from the loading dock, there was no basis to infer that these particular customers would have sought out that service. Indeed, there was no evidence that these two customers were not in any event aware of the possibility that they could use a loading dock.

Even if staff had alerted the two customers to the existence of the loading dock service, there was no basis to infer that they would have used that service if it was offered.

Even if flatbed trolleys had been available there was no basis to infer that these customers would have used them.

To the extent that the incident report asserted that the incident could have been avoided if the team member had helped the customer with the bulky bikes at the self checkout area, that was speculation, and in any event the two customers appear to have been able-bodied adults who did not require help.

These submissions reduce to the proposition that so long as any alternative means of transporting the boxed mountain bikes were merely optional, the Court could not be satisfied that these two purchasers would have preferred the alternative to the course that they actually took. The force of Kmart’s submissions might have been affected by evidence, if there had been any, of various matters including what proportion of purchases of oversized or heavy items were made using the existing non-mandatory procedure whereby customers could ask Kmart staff to take bulky items to the loading dock for collection; the practical availability of that service, including the length of time it would add to the process of purchase; exactly what Kmart staff might have said in alerting the customers to the existence of the service; and the particular circumstances of the two purchasers involved in the incident on the particular day.
There was no such evidence. Taking Kmart’s submissions together, I consider that, if the counterfactual had been one in which there was no prohibition on customers using standard-sized trolleys to transport the boxed mountain bikes, and any alternative means of transporting them were no more than optional, the respondent would not on the evidence have discharged her onus of establishing that the failure to provide such alternative means was a necessary condition of the occurrence of the harm which she suffered.
But as I have concluded above, the counterfactual here involves more than an optional procedure that customers could choose not to follow.
Kmart made submissions in the course of oral argument in answer to questions about causation asked on the hypothesis that there was a mandatory procedure under which Kmart staff would transport the boxed mountain bikes to the loading dock for collection, and Kmart staff would inform customers that that was required.
Kmart’s submission was to the effect that, if a Kmart staff member had told the customers that there was a system that required the boxed mountain bikes to be taken to the loading dock, and that the customers were not permitted to bring the trolley with the bikes into the self-checkout area, the Court could not on the evidence make a finding that these two customers would have complied. Kmart submitted that the customers might not have been prepared to wait or might have preferred the convenience or accessibility of a car park close to the entrance rather than using the loading dock, such that they might have proceeded through the self-checkout despite what the staff member told them.

There was no evidence particular to these customers or the situation in which they found themselves on the day. Kmart relied on s 5E, which provides that the plaintiff always bears the legal onus as to facts relevant to causation.
The respondent submitted that on the probabilities, it is reasonable to infer that the customers would have done what the Kmart staff member asked. The respondent submitted that it is unimaginable that the customers would have barged into the self-checkout area, telling the staff member to get out of the way. I do not think it is necessary to go so far as to say that that would be unimaginable. The respondent embraced the more modest proposition that the Court would infer that people would act in accordance with reasonable directions given by an occupier. I agree.
On the hypothesis that Kmart had implemented a system prohibiting customers from using standard size shopping trolleys for transporting heavy, oversized items such as the boxed mountain bikes through the store, and instead requiring customers to collect them from the loading dock, I consider that, on the balance of probabilities, the two customers would not have taken the boxed mountain bikes into the self-checkout area, and the respondent would not have been injured. Kmart’s negligence was thus a necessary condition of the occurrence of the harm within the meaning of s 5D(1)(a).
Ground 7 fails.

Conclusion

I would dismiss the appeal with costs.
GRIFFITHS AJA: I agree with McHugh JA.

**********

Amendments

21 October 2024 - Numbering corrected in headnote

22 October 2024 - Amended incorrect Counsel name

Decision last updated: 22 October 2024

Medium Neutral Citation:	Kmart Australia Limited v Marmara [2024] NSWCA 249
Hearing dates:	19 September 2024
Date of orders:	21 October 2024
Decision date:	21 October 2024
Before:	Kirk JA at [1] McHugh JA at [2] Griffiths AJA at [199]
Decision:	Appeal dismissed with costs.
Catchwords:	NEGLIGENCE – Occupier’s liability – precautions reasonably required to be taken by occupier of retail store – where customer injured by heavy oversized box containing mountain bike falling from another customer’s shopping trolley – where no mandatory system preventing use of standard size shopping trolleys for heavy oversized items implemented by occupier – whether reasonable person would have implemented such a system requiring collection at the loading dock – whether lack of such a system was a necessary condition of the occurrence of harm
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E Evidence Act 1995 (NSW), ss 55, 79
Cases Cited:	Ballina Shire Council v Moore [2023] NSWCA 155 Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 [98 ER 969] Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ELB Pty Ltd v Lumina BPO Pty Ltd [2021] NSWCA 91 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857; 414 ALR 635 Gordon v Lever [2018] NSWSC 1888 Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Lang v R [2023] HCA 29; (2023) 413 ALR 389 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 457; [2022] HCA 11
Category:	Principal judgment
Parties:	Kmart Australia Limited (Appellant) Rita Marmara (Respondent)
Representation:	Counsel: M Windsor SC with J Hart (Appellant) R McIlwaine SC with R E Quickenden (Respondent) Solicitors: Gilchrist Connell (Appellant) Brazel Moore Compensation Lawyers (Respondent)
File Number(s):	2024/145001
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Marmara v Kmart Australia Limited [2024] NSWDC 89 Date of Decision: 26 March 2024 Before: Gibson DCJ File Number(s): 2021/00097031