Kmart liable for damages
In the decision of Lewis –v- Kmart Australia Limited  NSW DC 218 (16 September 2016) Kmart was found liable for injuries sustained by a customer when a garden chair in which she was sitting within Kmart’s photo lab collapsed.
The facts of the case were largely undisputed at trial. The Plaintiff was a customer of the Kmart Nowra store for many years. She attended the store on 10 January 2014 in order to use Kmart’s photo lab. The photo lab enabled customers to print photographs from electronic devices using one of four computer screens. Each of the screens is situated at a station and had a lab chair with steel legs. Prior to the Plaintiff’s accident, one of the chairs had broken and so only three chairs were available for use between the four stations. It was the post-Christmas sale period and it was a busy time of year.
About 50m away from the photo lab, Kmart’s garden section sold green plastic chairs for $8.00 each. The chairs were very light and bore a warning sticker identifying that they were to be used for domestic use only, that they were not to be used on slippery or shiny surfaces and bore a weight limit of 100kg.
The Plaintiff gave evidence that when she arrived at the Kmart store at the photo lab, a green chair was already in position at one of the photo lab stations. She sat down on the chair and while operating the screen, a leg of the chair gave way and she fell heavily onto her bottom. She weighed well below 100kg.
As a consequence of the fall, the Plaintiff sustained among other injuries, a serious injury to her lower back.
The Plaintiff lead evidence at trial that the plastic chairs were not suited for commercial use such as at Kmart’s store, that customers attending Kmart stores often weighed in excess of 100kg and up to 150kg, such persons attending Kmart stores to purchase 7XL sized clothing. The Plaintiff alleged that a number of simple measures could have been taken to reduce the risk of harm to persons such as the Plaintiff including the provision of a suitable seat, signage warning not to use the plastic chairs and additional training of staff.
Her Honour Gibson J agreed with the Plaintiff’s submissions and gave verdict for the Plaintiff.
Her Honour awarded the Plaintiff damages of $328,413 plus costs.
Among other matters, Her Honour considered her observations of the Plaintiff in the witness box during the trial and marked discomfort she displayed arising from her back injury.
The decision highlights the obligations of retailers to take reasonable steps to ensure that customers are not exposed to a risk of harm from inappropriate use of products by customers within their stores.
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