The recent case of Marmara v Kmart Australia Limited 1 serves as a critical reminder for retailers about the importance of implementing and adequately maintaining a safe shopping environment for customers and the legal consequences of failing to do so.
Background
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, arguing that the defendant failed to identify and mitigate the risks associated with customers transporting large items such as mountain bikes within the store. She contended that the defendant should have implemented a system to supervise or assist customers in handling bulky items.
The Court in dealing with those allegations, examined the scope and content of the defendant's duty of care under section 5B of the Civil Liability Act 2002 (NSW) focusing on the foreseeability and significance of the risk of harm, as well as the measures taken by the defendant to mitigate that risk.
Assessment of the defendant's system
The Court found that the defendant had breached its duty of care.
In doing so, it rejected the defendant's argument that the risk that a customer might overload a trolley with bulky items which might fall and injure someone else was "relatively insignificant". This conclusion was influenced by the high number of customers typically passing through the self-checkout area and the absence of cashier assistance to handle and scan goods.
The Court noted 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. However, the implementation was flawed due to insufficient staff training, lack of enforcement, and the absence of signage informing customers of the assistance available to them.
The Court also highlighted 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. The problem was it was not properly implemented.
In assessing the reasonableness of the defendant's system, the Court had regard to different systems that could have been used, such as flat-bed trolleys and not permitting customers to move large items without staff assistance.
The Court concluded that the defendant's failure to properly implement its assistance system for handling bulky items constituted a breach of duty of care, resulting in the plaintiff's injury. The Judgment underscores the importance of not only developing but also effectively implementing safety measures to mitigate foreseeable risks in a retail environment.
Footnote
1 [2024] NSWDC 89
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