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Before the accident, Kmart staff were fully aware customers were taking plastic, green chairs from the gardening section and using them in the photo lab area, a court has found. Customers would do this because there were not enough steel chairs for people to sit on while they were processing their photos on touch screen computers.The $8 plastic green chairs were only 50 metres away from the photo processing section but came with a warning that they were for domestic use only.Nursing assistant Julie Ann Lewis, 63, was a regular shopper at Kmart in Nowra and known to staff in the photo lab section on a first-name basis.She was a keen photographer at family events and used to process photos two to three times a week at the store.On one occasion, Ms Lewis sat down on a green gardening chair in front of one of the computers used to process photos. She inserted her USB into the computer and was about to download some photographs she had selected when the chair collapsed without warning, throwing her to the ground.
Ms Lewis told the NSW District Court last month, "All of a sudden I went down.""This was because the chair had crashed to the floor, taking her with it," Judge Judith Gibson said."She found herself sitting on the floor, still in the chair. She looked behind and noticed that the back left leg of the green plastic chair had torn almost completely from the rest of the chair," she said.Ms Lewis suffered permanent damage to her lower back, right buttock, thigh and knee among other injuries.She was awarded more than $300,000 in damages.Part of the money will go towards helping her with past and future wage loss.In making her decision to award Ms Lewis the sum, Judge Gibson noted that Kmart had breached its duty of care."To keep the photo lab (and its income) flowing, Kmart and its staff allowed the development of a haphazard system of customers taking chairs for sale in other departments (itself a breach of store policy) for use in circumstances where those chairs were unsuitable to the point of being dangerous," she said."
I am satisfied that the plaintiff has established breach of duty of care. The defendant's failure to provide adequate seating for its customers in the photo lab, training for its staff and regulation of equipment use all play a role in relation to the circumstances of the accident."In the decision of Lewis –v- Kmart Australia Limited [2016] 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. If you have been a victim of a defective product, or sustained an injury in a public place contact Turner Freeman today on 13 43 63. Our expert Personal Injury lawyers can services clients who have Defective Product Claims and Public Liability claims.