Hefty obligations for hefty retail goods: Retail giant found liable for oversized goods injury

With the festive season fast approaching, retail stores are set to become as full as a Christmas stocking, bringing a not-so-festive increase in injuries due to increased retail traffic.

The recent decision in Kmart Australia Limited v Marmara [2024] NSWCA 249 highlights the very real risk posed by bulky goods in retail stores and clarifies the handling policies and procedures a Court considers adequate for stores.

The Background

On 29 September 2018, the Respondent shopper was struck on her back by another customer’s trolley that was overloaded and unbalanced by a box containing a mountain bike as it tipped over in the self-checkout area of a Kmart. The shopper suffered various cervical spine injuries and bursitis in her right shoulder.

The Claimant’s allegations

In the NSW District Court, the shopper alleged Kmart breached its duty of care by failing to identify and mitigate the risks posed by customers handling bulky items within the store.

The shopper submitted that Kmart’s policies, procedures and equipment were inadequate to address this risk, and they failed to implement the following reasonable precautions:

1. a system prohibiting customers from using regular shopping trolleys to move bulky items unsupervised;
2. providing customers with other means of transporting heavy or oversized items through the store, such as flatbed trolleys;
3. a system requiring staff to take bulky items to the loading dock or checkout for customer collection; and
4. having staff supervise customers transporting bulky items through the store.

Kmart’s systems

At the time of the incident, Kmart had a non-mandated service allowing customers to collect items at the loading dock. This system was not advertised but was only implemented at a customer’s request.

Kmart alleged that the risk of injury to a customer due to a mountain bike tipping a trolley over was relatively trivial.

Findings of the District Court

The Court ultimately found Kmart liable.

The risk of injury posed by customers handling bulky items was “not insignificant” and should have been addressed by Kmart.

Kmart’s non-mandated system to assist customers was found to be insufficient. In fact, the implementation of this system highlighted that Kmart was aware of the risk posed by bulky items, but failed to implement an adequate system to address that risk. Further, it was found Kmart either failed to appropriately train staff in this system or failed to enforce it.

When considering what Kmart should have done, the Court referred to an occupational health and safety expert who considered other large retailers’ systems, particularly Aldi. At the time of the incident, Aldi had a system where flatbed trolleys were provided to customers, and staff were required to lift the heavy or large item onto the trolley for the customer. Aldi prohibited customers from lifting the items themselves.

The Court favorably referred to Aldi’s systems, finding that Kmart should have had flatbed trolleys available. Whilst other large retailers were also found to have similarly lacking systems in place, the Court held this was not a valid defense for Kmart.

Findings on Appeal

On appeal, the Court of Appeal reaffirmed that Kmart’s systems were insufficient to address the risk, supporting the District Court’s reasoning.

Kmart alleged the occupational health and safety expert relied on telephone enquiries he made with other retailers, and relaying this information was inadmissible hearsay. The Court of Appeal allowed the expert evidence on the basis that Kmart failed to object to this evidence at trial.

The Court of Appeal confirmed that Kmart should have prevented customers from transporting bulky items and should have devised and implemented a system for their safe transfer. The Court of Appeal suggested the following steps were reasonable and not overly burdensome:

1. providing flatbed trolleys and staff assistance to use them, provided this was appropriate considering the store layout; or
2. mandating staff taking oversized items to the loading bay for customer collection.

The Court of Appeal did not consider that simply providing flatbed trolleys or optional staff assistance to customers would have prevented the injury.

Implications

The Court of Appeal’s findings in this case highlight the critical need for retail stores to prioritise customer safety, particularly when handling bulky items. Kmart’s liability underscores the importance of implementing clear, mandatory systems to mitigate risks, as inadequate policies can lead to significant injuries and legal consequences. Retailers should take note of industry standards, such as those established by competitors like Aldi, to ensure their safety measures are robust and effective. This case serves as a reminder that merely offering optional assistance is insufficient, and that proactive strategies, including staff training and supervision are essential to safeguard customers and uphold a duty of care.