Kmart ordered to pay $60k for young girl's horrific eye injury
WARNING - GRAPHIC CONTENT: Kmart has been ordered to pay nearly $60,000 to a young girl after she nearly had part of her eyelid ripped off in a horrific accident in a Sydney store.
The then six-year-old was in the children's section of a Kmart store in Chatswood in January 2020 when she reached to get a shirt off a hook, lost her balance and punctured her eye socket on a metal rail.
The case file revealed the child's injuries resulted in "permanent visible scarring", but will not affect her capacity to study or work. It does however state she has, as a result of the accident, begun to suffer from anxiety and loss of confidence which may require psychological treatment.
The child's mother said her daughter - who had initially enjoyed activities such as ballet, basketball, gymnastics and swimming - did not want to go back to school following the accident due to anxiety over her looks.
"Cecilia was very afraid and scared of facing her school teachers and classmates because she thinks she looks horrible, and ... she cannot be prepared very strong [sic] to face some questions," the mother told the court, as her daughter's eye had remained covered when she recommenced schooling.
The child's mother also revealed her daughter has been unable to sleep independently, even at eight-and-a-half years of age, and would often cry before bed for a variety of reasons.
'Psychological disturbance'
Lawyers for Kmart contended that the little girl's struggles may not be solely a result of the accident as she had suffered from stomach discomfort prior to her injury. However the court psychiatrist revealed the changes the mother had seen in her daughter's behaviour since the injury are classic features of anxiety in children, and this anxiety had "influenced and affected her normal trajectory of development".
The psychiatrist added that the changes of behaviour and demeanour in the child were "significant" in the consideration of her "present and future needs for psychological treatment".
He also revealed that he found the child has not just refused to sleep independently, but has also refused to continue with sports that risk contact, such as soccer. He added that teachers have phoned the child's mother to recommend speech therapy because the little girl refuses to answer questions.
The court psychiatrist also observed the child is conscious of her scar, refuses to talk about the accident, has lost confidence and has increased anxiousness.
He concluded that "there is a significant probability of psychological disturbance" in the child, which he said "is increasingly likely to affect her as she grows older".
Court ruling
Judge Robert Montgomery, in his decision, considered the parents' decision to seek a once-and-for-all award for damages, and ruled that the child does suffer from a continuing and significant deprivation of the opportunity to participate in normal activities "and thus to enjoy life to the full and to take full advantage of the opportunities that it might otherwise offer".
The judge noted that while other cases cited by Kmart's lawyers involved scarring to the limbs and body, the child's case was different as the face is "most in focus during the important amenities of life associated with communication, intimacy and self-perception including when looking in a mirror".
"In my opinion, quite apart from the pain and inconvenience, the plaintiff's demeanour and zest for life have been severely impacted by the defendant's negligence," he said.
The judge further stated that while the impact of the injury on the child's future earning capacity is difficult to determine at a young age, as this would be dependent on her career choice, "scarring to her right eye would be of great or minimal disadvantage to her".
"Is she to be a model or beautician or an academic or follow a profession for instance? In any calling, she will be required to engage with people and self-consciousness of scarring to her right eye is likely to be to some degree a disadvantage to her," he said.
Kmart has been ordered to pay the young girls' family a total of $59,929.36 and costs of the court proceedings.
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