Woman sues Kmart for $750k over ‘bike fall’

A woman is set to receive a major payout from Kmart after she was injured by a falling mountain bike while shopping at a store on the NSW Central Coast.

Sydney woman Rita Marmara, 64, was holding her granddaughter’s hand in the self-checkout section of Woy Woy Kmart when another customer was attempting to manoeuvre two mountain bikes in his trolley.

The trolley tipped over with the larger of the two bikes falling and striking her back. The incident was captured on CCTV.

Ms Marmara took the matter to the NSW District Court and claimed damages totalling $743,971 in medical treatment cost and lost income.

Kmart, meanwhile, estimated damages of $5000 – an amount that District Court Judge Judith Gibson slammed as “unrealistic” when handing down her judgment on Tuesday.

“The schedules of damages could not be further apart,” Judge Gibson said.

“Estimates of this extreme nature are of no assistance to the court.”

Ms Marmara told the court she suffered neck and shoulder pain after the incident which required two operations. She also said her injuries meant she was no longer able to do the duties required of her at her job at a retirement home.

“She was a fit and healthy person who walked to work full-time and performed a job which had a significant physical activity component,” Judge Gibson said.

“That physical work included dragging trolleys, cleaning pots and assisting in the care of residents whose physical health was fragile in circumstances where they would have been dependent upon her strength if called upon.”

Judge Gibson ruled in favour of Ms Marmara and estimated a minimum total of $613,461.55.

Final costs are set to be determined at a later date with out-of-pocket expenses still being debated between the two parties.

In the judgment, Judge Gibson said Kmart had attempted to paint Ms Maramara as a woman who was “fabricating symptoms” and who had

“hoodwinked or otherwise misled all her treating doctors and her surgeon”. The judge rejected these submissions.

“The plaintiff has established that her injuries and ongoing disabilities were caused by the negligence of the defendant,” Judge Gibson said.

The court heard how there was a system in place for customers with heavy items, which allowed them to purchase the items via the loading dock to their car without taking them through the self-checkout area.

However, Kmart did not have any signs on the walls “telling the customers that such a service was available” and the attendant failed to tell the customer at the time.

“The likely seriousness of the harm was high,” Judge Gibson said.

“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.”

sarah.keoghan@news.com.au

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