Lewis v Kmart Australia Ltd [2016] NSWDC 218



There was a photo lab section in the Kmart store. In the photo lab, there were four kiosks which provided a computer screen each for customers to select and print photos. There should be four lab chairs for each kiosk. However, one of the chairs had been broken and the replacement chair had not arrived.


There was also a Garden section about fifty meters away from the photo lab. In the Garden section, there were plastic green garden chairs for sale. Due to the lack of lab chair in the photo lab, Kmart was well aware of the situation that customers picked up the garden chair from the Garden section and carried it to the photo lab to sit on.


The garden chair on which she sat was a plastic green garden chair which had been brought to the photo lab from another nearby section of the store by an unknown person because one of the regular photo lab chairs had been removed for repairs.


On the day of accident, Ms Lewis was sitting on the garden chair which had been brought to the photo lab by an unknown person and the chair suddenly collapsed. Consequently, Ms Lewis suffered a serious injury to her lower back.


Main issues & Arguments

The main issue before the Court was whether Kmart should have done something which could have prevented Ms Lewis from being injured due to the collapse of the garden chair.


Ms Lewis argued that it was Kmart’s failure to supply sufficient number of suitable chairs that directly caused her injury and the injury would not have occurred but for Kmart’s such failure.


Kmart argued that the risk was not foreseeable because there was no evidence showing how long the garden chair had been there or how many people had sat on it since Kmart had previously taken the chair away from the photo lab.


Court’s Findings

The Court found the risk was foreseeable to Kmart and therefore Kmart was liable for the accident because:

  • Kmart knew there were not enough chairs and that more chairs were needed;
  • Kmart knew green plastic chairs were being brought into the photo lab by customers;
  • The garden chair was unsuitable and a hazard because the flooring in the photo lab was polished linoleum tiled, the chair was not suited to frequent commercial use and the chair could only take 100 kilograms in weight;
  • Kmart knew green plastic chairs were unsuitable for use in the store but Kmart did not put up any system or signs designed to prevent customers from taking garden chairs to the photo lab;
  • it was foreseeable that the green plastic chairs could fail if misused;



In total, the Court award Ms Lewis over $300,000.



Retailers must take reasonable steps at all times to ensure a safe shopping environment is provided to customers within their stores. For example, retailers must ensure that the customers are not exposed to a risk of harm by providing suitable furniture and tools and equipment.