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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 249
Decision Date: 21 October 2024

CaseChat Overview and Summary

Kmart Australia Limited appealed a decision of the District Court of New South Wales concerning an occupier's liability claim brought by Mr. Marmara. Mr. Marmara suffered injuries when a heavy, oversized box containing a mountain bike, being transported by another customer in a standard shopping trolley, fell from the trolley and struck him. The central dispute revolved around whether Kmart, as the occupier of the retail store, had taken reasonable precautions to prevent such an incident.

The appellate court was required to determine whether Kmart had breached its duty of care to Mr. Marmara. Specifically, the court considered whether a reasonable occupier in Kmart's position would have implemented a mandatory system to prevent the use of standard shopping trolleys for heavy, oversized items like the mountain bike. The court also had to assess whether the absence of such a system was a necessary condition for the occurrence of Mr. Marmara's harm.

The court reasoned that while Kmart had a system for collecting large items at the loading dock, it did not mandate its use for all oversized items. The judges found that a reasonable person in Kmart's position would have implemented a system requiring the collection of such heavy, oversized items at the loading dock to mitigate the risk of them falling from shopping trolleys. The court concluded that the lack of such a mandatory system was a causative factor in Mr. Marmara's injuries. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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