Retail giant Kmart has been ordered to pay almost $625,000 to a grandmother who was injured when a heavy box fell onto her in one of its store’s self-serve checkout areas. 

Rita Marmara was buying items with her family in Woy Woy, NSW, when the box containing a mountain bike toppled from another shopper’s trolley behind her. 

The item had been put in a standard trolley, where it was leaning against a second slightly smaller bike box and was being held up by the customer buying it – until it fell. 

Ms Marmara suffered spine and shoulder injuries and sued Kmart, alleging it had breached its duty of care by failing to mitigate the risk of such a spill. 

“The likely seriousness of the harm ... was high,” NSW District Court judge Judith Gibson said. “The dimension and weight of both boxes was considerable. Although the plaintiff was struck only by the larger box, the impact of the blow was considerable. 

“The plaintiff was holding the hand of a small child at the time. That child could have been struck by one or both boxes falling out.” 

Ms Marmara’s arguments included that the chain should have better supervised shoppers buying oversized items and prevented people from balancing large boxes in standard trolleys by, for example, mandating that bulky items be collected from the loading bay or providing flatbed trolleys. 

Judge Gibson said: “The burden of taking precautions to avoid the risk of harm ... was trifling.” 

Ms Marmara won the District Court case in March, but Kmart appealed against the decision. 

Among the store’s arguments at appeal were that the initial judge erred in allowing expert evidence from an occupational health and safety specialist, because this field was not relevant to the case. NSW Appeal Court judge Richard McHugh rejected this, noting the expert’s evidence was “sufficiently shown to be based on specialised knowledge”. 

Kmart also said the judge “erred in finding that the appellant did not implement a system to assist customers with heavy or bulky items”. 

The first trial had heard evidence from a staff member that the store had “a procedure where customers could ask for … products to be taken to the loading dock and delivered to them, in their car, so they wouldn’t have to take it out themselves”. 

Justice McHugh rejected this too, saying: “That evidence went no further than describing a service that was provided only to customers who had the initiative to ask for it, in circumstances in which it was not advertised by signage. I do not consider the word ‘system’ to be an apt description of the circumstances in which ... that service was available to customers.” 

The appeal was dismissed. See the ruling here.