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