A WOMAN has won a legal battle against retail giant Kmart for $600,000 after being crushed by a large boxed mountain bike which fell on top of her at a checkout.
The heavy, oversized box was in another customer's trolley when it fell on her from behind at a self checkout.
Rita Marmara was awarded $624,775 in damages for personal injury in March this year, nearly six years after the incident in September 2018, at a Kmart store in Woy Woy.
Kmart fought the decision taking its appeal to the Supreme Court where it was dismissed earlier this week (October 21).
Ms Marmara had argued Kmart was negligent and should have had a system in place, such as providing a service for customers to pick up large items from the loading bay.
The judge found there was not "no system" in place. There was the option for customers to ask to collect items from the loading dock.
But that process had to be initiated by customers, it was not drawn to their attention, it was not mandatory, and that was not a sufficient precaution against the risk of harm.
"There was a substantial probability that if care were not taken customers would continue to use standard size shopping trolleys to transport heavy oversized items and thereby expose others to the risk of harm," the primary judge, Justice Judith Gibson, found.
Failing to prohibit customers from using standard-sized shopping trolleys to transport heavy, oversized items, and instead require them to collect them at the loading dock, with signs in place and staff trained appropriately, was a breach of its duty of care, Justice Gibson found.
The incident was captured on CCTV footage which showed a busy self-checkout area.
Ms Marmara was at the checkout with several family members, including her grand daughter whose hand she was holding.
Behind her another couple had two mountain bikes in boxes in a standard sized trolley.
The man, who had his hand on the boxes for the majority of the transaction, lifted his hand from the trolley's handle for just a moment and it stopped over onto its side.
The larger of the two boxes struck Ms Marmara, aged 64, just below the shoulder.
She was treated at Gosford Hospital and later underwent spinal surgery and she had to stop working on October 3, 2018.
Counsel for Kmart suggested that one of the customers had bumped the trolley, causing it to topple over.
Whether the trolley was so unbalanced that it toppled over by itself, or was so unstable that a bump was sufficient to cause it to topple, was immaterial, a panel of three appeal judges found.
The woman suffered injuries to her cervical spine and shoulder, and sued for negligence, saying Kmart failed to supervise customers in removing goods/mountain bikes from the storey, failing to prevent customers unsafely loading trolleys, failing to have a flatbed trolley available, and failing to provide a service for customers to pick up boxes from the loading bay.
Other stores had better systems in place, including Aldi which provided flatbed trolleys, and did not allow customers to lift bulky items alone.
Justice Gibson had found the likely seriousness of harm was high, and the impact of the blow considerable.
"The plaintiff was holding the hand of a small child at the time," Judge Gibson said.
"That child could have been struck by one or both boxes falling out. As the CCTV shows, Kmart customers include a wide range of vulnerable customers such as children, the elderly and persons who appear to have mobility problems."
The appeal was dismissed and Kmart was ordered to pay costs.
