Woman awarded $300,000 after Kmart chair breaks – the importance of sticking to store policies


Source: AAP Image/Paul Miller

Businesses have been warned to stay vigilant about workplace health and safety regulations, with news of a woman being awarded $300,000 in damages from Kmart after a chair broke in store.

Fairfax reports 63-year-old nursing assistant Julie Ann Lewis was using one of Kmart’s gardening chairs when it broke, injuring her lower back and right buttock.

Lewis was using the chair to sit on while processing photos from Kmart’s photo lab, as the rest of the steel chairs provided in the area were being used.

Kmart staff were reportedly aware customers would use the garden chairs as replacements, despite coming with warnings they were for domestic use only.

Lewis told the NSW District Court last month that the chair she was sitting on suddenly gave way, with one of the chairs back legs snapping off entirely, according to Fairfax.

“All of a sudden I went down,” Lewis told the court.

Lewis was awarded $300,000 in damages, which will go towards her current medical bills and her future wage loss.

Judge Judith Gibson criticised Kmart for breaching its own store policies and 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,” Gibson said.

Employment and workplace safety lawyer at TressCox Lawyers Peta Tumpey told SmartCompany Kmart had not taken all reasonable steps to prevent this situation.

“Customers using those chairs like that is against the store’s own internal policies, so somewhere along the line management has failed,” Tumpey says.

“In this situation it seems like a case of vicarious liability, where the employees are doing something wrong so the employer is responsible.”

Tumpey believes Kmart should have taken further steps to provide adequate seating, saying, “businesses should always provide equipment that is fit for purpose”.

However, Tumpey says this sort of employee behaviour can be fairly common, especially for situations that seem innocent.

“It’s common with behaviour that seems so innocent, employees condone it, and as long as management doesn’t come and tell them to stop, these bad behaviours will carry on,” Tumpey says.

“They should have known better, but it does seem like such an ordinary thing to be doing. These chairs break at family barbeques all the time.”

Stick to policy and stay vigilant

Tumpey warns if businesses have a store policy, they should stick to it vigilantly. Additionally, regular recorded workplace health and safety checks can go a long way in protecting businesses from these sorts of situations.

“One thing businesses should do if they’ve got people coming and going all the time is to do regular WHS or risk assessments of items in store,” she says.

“Early prevention will stop people from hurting themselves, and it’s a great thing to have on file to show courts you did act reasonably.”

Judge Gibson was satisfied with the outcome of the case, blaming “failure to provide adequate seating for its customers in the photo lab, training for its staff and regulation of equipment” as the main reasons for the accident, reports Fairfax.

SmartCompany contacted Kmart for comment, but the store was unable to facilitate a request for further information.