Kmart Woy Woy: Sydney grandma Rita Marmara hit by falling bike at checkout wins massive lawsuit

A Sydney grandmother who was crushed when another customer’s mountain bike toppled off a trolley on the Central Coast has sued the retailer for an eye-watering sum.

Sydney woman Rita Marmara was awarded a massive payout following a five-year battle with Kmart Woy Woy. (file image — not the actual store)

A Sydney grandmother who underwent spinal surgery after a heavy box containing a mountain bike toppled off another customer’s trolley and hit her in the back has won a massive damages payout.

Rita Marmara lodged civil proceedings in the NSW District Court against Kmart in April 2021 after she was injured while standing at the self-serve checkout of the Woy Woy store on September 29, 2018.

The court heard Ms Marmara was holding her granddaughter’s hand about 12.40pm, while her son and his wife were paying for items, when another two shoppers approached a self-service checkout behind them.

The man and woman had two large mountain bikes balanced across the top of a trolley and as he tried to manoeuvre through he let go of the trolley and the bikes tumbled out, striking Ms Marmara on the back, shoulder and neck.

Ms Marmara was taken to Gosford Hospital where she was diagnosed with “trauma to the cervical spine” and neck tenderness but no pinched nerves.

Ms Marmara was injured at the self-checkout area when a mountain bike fell on her. (File image)

She was discharged and stayed with her son and daughter-in-law but immediately noticed she could not turn her neck and was in pain.

Ms Marmara tried to return to work at a retirement village a few days later but was unable to perform a number of the physical tasks she used to be able to do such as scrubbing pots and pans in the kitchen.

Mr Marmara sued Kmart for negligence. (File image)

The court heard she ceased employment on October 3, 2018 and continued with conservative treatment including physiotherapy and pain medication.

She eventually went on to have a number of spinal fusions to try and identify and treat the cause of the pain.

She sued Kmart, arguing the retail giant was negligent because it failed to identify risks to shoppers from people transporting mountain bikes in the store, failed to assist customers with large items and failed to have a flat-bed trolley or provide a service where customers could pick up bulky items from a loading bay.

The matter was heard before District Court Judge Judith Gibson who found the difference between Kmart’s medical expert and Ms Marmara’s was “stark”.

The incident happened at Kmart in Deepwater Plaza in Woy Woy. (AAP Image/Troy Snook)

As was the estimated damages which “could not be further apart”.

Kmart’s barrister argued the then 59-year Mr Marmara was barely injured and if anything, just aggravated a pre-existing, degenerative spinal condition that was common in a lot of women her age.

He said she was “embellishing” the injury and pain for the financial payout and was critical of her “electing” to undertake surgical treatment of any kind.

However Judge Gibson said it was clear Ms Marmara underwent treatment and surgery to deal with the pain and accepted her evidence “as a witness of truth”.

Judge Gibson rejected the medical opinion of Kmart’s expert “in its entirety”.

Judge Gibson also rejected Kmart’s assertion that the risk a customer might overload a trolley, which could fall and hurt someone, was “relatively insignificant”.

“I do not accept this submission,” she said.

“The risk of customers emptying out the contents of their trolleys in a self-checkout area was that large or heavy items could result in injuries in a variety of scenarios. The self-checkout area in the Kmart store was thronged with customers concerned with their own transactions, rather than the safety of others, and who were putting their goods through the scanner at a great rate but without the benefit of the expertise of a trained check-out cashier. The possibility of items of 20kg or more being mishandled by an untrained member of the public was not one that could or should have been treated as relatively insignificant.”

Kmart offered to pay Ms Marmara $5000 to cover any out-of-pocket medical expenses however her lawyers asked for $743,971 to cover lost income given the now 64-year-old had retired early.

On Tuesday Judge Gibson awarded Ms Marmara $613,461.55 plus out of pocket expenses, which have yet to be agreed upon.