The Plaintiff was attending a Kmart store to attend on the ‘photo lab’ located at the store. At the store, there are 4 blue chairs which were in operation at the ‘photo lab.’ Prior to the Plaintiff arriving at the store, one of those chairs had been broken. To replace the broken chair, there was a green plastic garden chair in the area which was sold in their Garden section.
On the date of accident, the Plaintiff came to use the available computer screen in the photo lab. The only available chair was the green plastic garden chair. The Plaintiff has sat on this chair in front of the computer screen when the chair collapsed without warning, causing her to fall to the ground.
Duty of Care
The prominent issue surrounding the issue of liability in this public liability matter was whether Kmart owed a duty of care. The personal injury solicitors for the Plaintiff argued that Kmart were aware that more chairs were needed in the ‘photo lab,’ that these green plastic chairs were being used and they ought to have been aware that the chairs were unsuitable for use within the store. Furthermore, the Plaintiff submitted that there were a number of reasonable precaution which the Defendant ought to have taken to avoid the risk of harm:
Having regard to the above, His Honour stated the he was satisfied the Defendant breached its duty of care. He stated:
“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. I am also satisfied that the failure of the defendant to supply sufficient number of suitable chairs directly caused the plaintiff’s injury.”
Accordingly, once the issue of liability was satisfied, the question became one of damages.
A Schedule of Damages was put forward by both parties.
One of the claimable heads of damages is for pain and suffering. On this note, the Plaintiff submitted that her injuries were at 28% of a most extreme case. The Defendant submitted it was 18-20%.
His Honour found in favour of the Plaintiff being injured at 26% of a most extreme case and awarded an amount of $47,500.00.
Following this the Judge went on to determine economic loss. The Defendant submitted this ought to be nil. His Honour stated:
“Rather unhelpfully, the defendant submits that there should be no claim at all for past or future wage loss. This effectively means that the plaintiff is not entitled to a single day off work for injurie the defendant acknowledges warrant a non-economic loss award of between 18-20%.”
His Honour went on to note it is the parties role to assist the court, and if they have not done so it is not for the Court to bargain down the positions of the Plaintiff. Accordingly, he awarded the full amount for past economic loss.
The full damages were awarded as follows
Past Out of Pocket Expenses
Future Out of Pocket Expenses
Past Economic Loss
Future Economic Loss
Future Paid Care
If you or anybody you know has been involved in an accident in a public place, please contact the Public Liability Accident specialists at Gerard Malouf and Partners for a free consultation.