Marmara v Kmart Australia Limited

Case [2024] NSWDC 89


District Court


New South Wales

Medium Neutral Citation: Marmara v Kmart Australia Limited [2024] NSWDC 89
Hearing dates: 12, 13 February 2024
Date of orders: 26 March 2024
Decision date: 26 March 2024
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   Judgment for the plaintiff.

(2)   Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed quantum of the damages to be awarded, with liberty to apply if that sum cannot be agreed.

(3)   Costs reserved with liberty to apply.

(4)   Exhibits retained until further order.

Catchwords:

TORT – personal injury – Kmart customer in the self-service checkout section hit by a large and heavy trail bike box in another shopper’s trolley falling onto her from behind – duty of care – foreseeability – Kmart system for shoppers with outsize items - damages

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 13

Evidence Act 1995 (NSW), s 79

Cases Cited:

Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dotlic v Hannover Life Re of Australia Limited [2017] NSWSC 986

Fernandez v State of New South Wales [2019] NSWSC 1736

Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199

Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57

HG v The Queen (1999) 197 CLR 414

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46

Jafari v Khoury and McDonalds Australia Ltd [2019] NSWDC 394

Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490

Markus v Provincial Insurance Co Limited (1983) 25 NSWCCR 1

Mead v Kearney [2012] NSWCA 215

Merhi v Ford Motor Company of Australia Limited [2012] VSCA 147

Murko v Greenfields Narellan Holdings trading as Narellan Town Centre [2015] NSWDC 132

Penrith City Council v Parks [2004] NSWCA 201

Purkess v Crittenden (1965) 114 CLR 164

Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103

Ridolfi v Hammond [2012] NSWCA 3

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Strong v Woolworths Ltd (2012) 246 CLR 182

Sullivan v Stefanidi [2009] NSWCA 313

Watts v Rake (1960) 108 CLR 158

Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12

Zamaglas v Saltalamaccia [2023] NSWDC 553

Texts Cited:

Nil

Category:Principal judgment
Parties: Rita Marmara (Plaintiff)
Kmart Australia Limited (Defendant)
Representation:

Counsel:
R McIlwaine SC with R E Quickenden (Plaintiff)
D Priestley SC (Defendant)

Solicitors:
Brazel Moore Lawyers (Plaintiff)
Gilchrist Connell (Defendant)
File Number(s): 2021/00097031
Publication restriction: Nil

Judgment

The plaintiff’s claim for damages

  1. The plaintiff (by statement of claim filed on 7 April…

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Details
AGLC
Marmara v Kmart Australia Limited [2024] NSWDC 89
Case
[2024] NSWDC 89
Decision Date

CaseChat Overview and Summary

Marmara sued Kmart Australia Limited for injuries sustained when she was struck by a large and heavy trail bike box that fell onto her from behind in the self-service checkout section of a Kmart store. The plaintiff argued that Kmart failed to exercise a duty of care towards her, as it was foreseeable that shoppers with large items could cause harm to others in the self-service area. The court was tasked with determining whether Kmart owed a duty of care to the plaintiff, if that duty was breached, and if the breach caused the plaintiff's injuries. The court also needed to assess the foreseeability of such an incident and the adequacy of Kmart's system for managing shoppers with outsize items.

The court examined the circumstances of the incident and the systems in place at Kmart to manage shoppers with large items. It found that Kmart had a system in place, which included signage warning shoppers about the potential for injury, but this was not sufficient to discharge the duty of care owed to the plaintiff. The court held that it was reasonably foreseeable that shoppers with large items could cause harm to others in the self-service area, and Kmart should have taken further steps to prevent such incidents. The court also found that Kmart's system for managing outsize items was inadequate and did not go far enough to protect shoppers from harm.

The court concluded that Kmart owed a duty of care to the plaintiff and that this duty was breached. The breach caused the plaintiff's injuries, and Kmart was liable for damages. The court found that the plaintiff was entitled to compensation for her injuries and ordered judgment in her favour. The parties were given liberty to bring in short minutes of order reflecting the agreed quantum of damages, with the option to apply if the sum could not be agreed. Costs were reserved with liberty to apply, and exhibits were retained until further order.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed quantum of the damages to be awarded, with liberty to apply if that sum cannot be agreed.

(3) Costs reserved with liberty to apply.

(4) Exhibits retained until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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