A landmark 2024 decision in the case of Kmart v Marmara has reshaped how retail stores must approach customer safety in NSW. When a routine shopping trip ended with Ms Marmara being struck by a falling mountain bike at a Woy Woy Kmart, it sparked a legal battle that would establish crucial precedents for retail liability and customer protection.
This article examines the implications of this significant ruling and what it means for customers injured in retail environments.
Understanding the Kmart v Marmara Case
The recent Kmart Australia Limited v Marmara [2024] NSWCA 249 demonstrates how seemingly routine shopping trips can result in serious injuries and the type of preventable accidents that occur in retail environments. At age 59, she was “holding her granddaughter’s hand in the self-checkout section of Woy Woy Kmart when another customer attempted to maneuver two mountain bikes in his trolley.”
The incident, which was captured on CCTV, resulted in one of the bikes falling and striking her back, sustaining serious neck and shoulder injuries when the mountain bike fell from a standard shopping trolley.
Under Section 5B of the Civil Liability Act 2002 (NSW), the court found that the risk of personal injury was both foreseeable and significant. As Judge Gibson noted, “The likely seriousness of the harm was high… 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.”
The case resulted in substantial compensation, with Judge Judith Gibson ruling in favour of Ms Marmara and estimating a minimum total of $613,461.55. This amount far exceeded Kmart’s proposed $5,000 settlement, which the judge dismissed as “unrealistic.”
The courts’ decisions at the District Court level and Court of Appeal emphasise that retailers cannot rely on optional safety measures when mandatory systems should be in place.
Your Rights as a Customer
Under NSW law, retail stores owe you a non-delegable duty of care, meaning they must take reasonable precautions to prevent foreseeable risks of harm.
The Kmart decision clarifies that these obligations extend beyond mere reactive measures. Stores must implement proactive systems, including proper staff training, clear signage, and mandatory procedures for handling dangerous or oversized items. When stores fail to meet these obligations, as defined under Sections 5B and 5C of the Civil Liability Act, they may be liable for injuries that result.
Prior to her injury, Ms Marmara was described by Judge Gibson as “a fit and healthy person who walked to work full-time and performed a job which had a significant physical activity component.” The injuries sustained required two operations and significantly impacted her ability to work at her retirement home job, where duties included “dragging trolleys, cleaning pots and assisting in the care of residents whose physical health was fragile.”
How This Case Helps Your Claim
The Court’s decision is particularly significant as it rejected Kmart’s attempts to paint Ms Marmara as someone who was “fabricating symptoms” and who had “hoodwinked or otherwise misled all her treating doctors and her surgeon.” Judge Gibson emphatically rejected these submissions, stating, “The plaintiff has established that her injuries and ongoing disabilities were caused by the negligence of the defendant.”
The Court of Appeal’s decision also provides valuable precedent for establishing negligence in retail injury cases. The District Court specifically outlined that a reasonable person in Kmart’s position would have implemented a system including “staff training; and signage; and one or the other of: requiring customers to use flatbed trolleys to transport heavy, oversized items through the store (or at least providing flatbed trolleys as an option for customers to do so); or requiring customers to collect such items at the loading dock.”
Making Your Claim
Pursuing compensation through professional indemnity insurance or public liability insurance serves multiple purposes. Beyond securing financial compensation for your injuries, it holds retailers accountable for maintaining safe environments and helps prevent similar incidents from occurring to others. The Civil Liability Act 2002 (NSW) provides clear pathways for compensation when retailers fail in their duty of care, and the Kmart decision strengthens these protections for all consumers.
This specific case reflects current NSW legislation and the potential outcome of a successful claim, particularly as it applies to retail injury claims. However, each case is unique, and specific legal advice should be sought based on individual circumstances. It is best to book an initial consultation with an experienced legal professional to know if your unique case is eligible to make a claim. Initial consultations are free, allowing us to assess your claim’s prospects without financial risk.
The Importance of Documentation in Compensation Claims
The case highlights the importance of proper documentation and medical evidence. Ms Marmara’s claim included damages totalling $743,971 for medical treatment costs and lost income. The court heard crucial evidence about her pre-injury capabilities and post-injury limitations, demonstrating the importance of comprehensive medical and occupational documentation to the success of a compensation claim.
This case also demonstrates the importance of documentation concerning business activities and legal liability when dealing with customers onsite. The court noted that while Kmart had a system in place for customers with heavy items to collect via the loading dock, they “did not have any signs on the walls telling the customers that such a service was available.”
This oversight can strengthen your claim, as it demonstrates systemic failures in retail safety protocols.
How Compensation Is Awarded
Compensation is typically awarded in NSW retail injury cases through public liability coverage. Using the Kmart v Marmara case as an example:
When a person is injured in a retail store like Kmart, the store’s business insurance is responsible for managing and potentially paying the claim. In Ms Marmara’s case, while she sued the store directly, the claim would have been handled under Kmart’s public liability insurance cover.
Using this case, we can see the compensation process through public liability insurance coverage typically works as follows:
- Initial Claim Assessment
When Ms Marmara made her claim, Kmart’s insurance company would have assessed:
- The incident details (CCTV footage of the falling bike)
- Medical documentation (her two operations and ongoing treatment)
- Liability (Kmart’s failure to implement proper safety systems)
- Potential compensation amount
- Compensation Calculation
The court considered multiple factors to reach the $613,461.55 figure, including:
- Medical expenses (including two operations)
- Lost income (inability to continue retirement homework)
- Future medical costs
- Impact on quality of life
- Future economic loss
- Negotiation Process
We can see how this works in the Marmara case as an example:
- Ms Marmara claimed $743,971
- Kmart’s insurance provider initially offered $5,000
- The court deemed this offer “unrealistic.”
- Final compensation was set at $613,461.55
- Insurance Company’s Role
The insurance company typically takes care of several aspects of a claim, including:
- Manages the claim process
- Negotiates settlement amounts
- Pay compensation if ordered by a court
- Covers legal costs within policy limits
It’s worth noting again that while the court awarded Ms Marmara substantial compensation, this would have been paid by Kmart’s public liability coverage, which is why businesses maintain comprehensive business insurance – to protect themselves and provide compensation for injured customers when needed.
This case also shows why businesses need adequate insurance coverage – the final compensation amount was significantly higher than the initial offer. Such payments could be devastating for a company without proper public liability coverage.
How We Can Help
Our firm specialises in public liability claims under NSW legislation. We understand the complexities of the Civil Liability Act and have extensive experience negotiating with insurers and litigating claims when necessary.
Our team can guide you through the claims process, from initial documentation to settlement or court proceedings, if required.
Need Legal Advice for a Compensation Claim?
The substantial difference between the insurance company’s initial offer ($5,000) and the final court-ordered compensation ($613,461.55) in the Kmart v Marmara 2024 case demonstrates why having legal representation is crucial in personal injury matters, as insurance companies often initially undervalue claims.
If you’ve been involved in an accident on retail or business premises in NSW, understanding your legal rights and the compensation process is paramount. Our experienced personal injury lawyers can provide professional advice to guide you through the process.
Burke Mead Lawyers offers a free consultation to discuss your case – contact our legal experts today.
