Marmara v Kmart: Landmark Case Shines Light on Retailer Liability in Australia

A Kmart shopper has been awarded compensation for injuries she sustained in a self-service queue (Marmara v Kmart Australia Limited [2024] NSWDC 89).

Ms Marmara (the Plaintiff) was shopping at Kmart, Woy Woy (the Defendant) on 29 September 2018. While at the checkout section within the store she was injured when one of two large mountain bikes, balanced on top of another shopper’s trolley, fell on her from behind.

The Plaintiff commenced a claim in negligence against the Defendant. The Plaintiff’s claim argued that the Defendant:

1. failed to identify and mitigate the risks of customers transporting large items such as mountain bikes, with the Defendant’s trolleys, within the store; and
2. should have implemented a system to supervise or assist customers in handling bulky items.

The Defendant had a duty of care to implement a safe system of work

It is well accepted that the Defendant, as a retail shop and occupier of the premises, has a duty of care to ensure that it is reasonably safe for people such as the Plaintiff to enter their premises as a customer.

This also includes that the system of work that it operates to provide its services as a retail store is also reasonably safe. This includes the system in which it sells goods, as well as how customers are able to purchase those goods.

In this case, the claim centred around how customers of the Defendant were able to safely transport and then purchase, large and bulky items.

Breach of duty

The Defendant claimed that the risk that a customer might overload a trolley with bulky items which might fall and injure someone else was “relatively insignificant”. Instead, the Court determined that:

The self-checkout area in the Kmart store was thronged with customers concerned with their own transactions, rather than the safety of others… 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’.

The Court rejected that argument and found that the Defendant was aware of the need for a system to assist customers with heavy and bulky items and had developed such a system.

The Defendant failed to use an existing system

The Defendant did have a system in place where customers could request large or bulky items be placed out in the loading dock and then delivered to them in their vehicle. However, the evidence also determined that the system:

1. had not been implemented;
2. their staff had not been trained for this system; and
3. there had been no advertising of this option to customers.

the Court also noted that the Defendant had accepted that it was aware of the need for there to be a system to assist customers with bulky and/or heavy items by developing its system. 

Burden of precautions 

The Court found that the burden of taking precautions to avoid the risk of harm was small.

All that was required was for staff to be trained to assist customers with large or heavy goods as well as notices on the wall alerting customers, particularly in areas where large or heavy items were being sold, that assistance was available.

It was found that it was not an uncommon practice for stores of this kind to have a system for collection of large items at the loading dock as well as have available flatbed trolleys for use by customers.

Damages awarded

The Court awarded damages to the Plaintiff of $613,461.55 (subject to out of pockets being confirmed).

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If you, or you know someone who has been injured, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.